IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 34 of 2002(A)
1. CYRIL JOSEPH, S/O. JOSEPH, UPPUVEETTIL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.V.P.REGHURAJ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/12/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. APPEAL 34 of 2002
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Dated: DECEMBER 21, 2009
JUDGMENT
The challenge in this appeal is to the judgment of the Enquiry
Commissioner and Special Judge, Kozhikode in CC 32/1999 dated
December 13, 2001 convicting the accused under secs.7 and 13(1)
(d) read with sec.13(2) of the Prevention of Corruption Act of 1988
and sentencing him to undergo rigorous imprisonment for two years
under each count and to pay a fine of Rs.5,000/-, in default to
undergo rigorous imprisonment for six months under sec.13(1)(d)
read with sec.13(2) of the Prevention of Corruption Act. The
sentence of imprisonment was ordered to run concurrently.
2. The case of the prosecution sought to be proved against the
accused before the trial court was that while the accused was working
as Village Officer of Payyambally village, Wayanad District, he
demanded and accepted an illegal gratification of Rs.300/- from PW.1.
the de facto complainant from the house of the accused for measuring
his land and for preparing its SMC report and sketch for obtaining
Pattayam, that at that time he again demanded a further bribe of
Rs.5000/- from PW.1 for the same purpose and in pursuance of the
said demand, he demanded and accepted Rs.500/- from PW.1 as
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gratification other than illegal remuneration for the same purpose on
June 6, 1997 from his office, while he was caught red-handed and the
tainted currency notes MO.1 series were recovered from him and that
the accused has thereby committed the offences punishable under
sec.7 of the Prevention of Corruption Act of 1988. It was also alleged
that by the above said illegal act of the accused, he, by corrupt or
illegal means or otherwise abusing his official position as a public
servant, obtained for himself a pecuniary advantage to the extent of
Rs.800/- and that thereby committed offence punishable under sec.13
(1)(d) and 13(2) of the Prevention of Corruption Act of 1988.
3. The accused on appearance before the trial court pleaded not
guilty to the charge under secs.7 and 13(1)(d) and 13(2) of the
Prevention of Corruption Act of 1988. PWs.1 to 10 were examined and
Exts.P1 to P19 were marked on the side of the prosecution. The
prosecution has also produced M.O.1 series to M.O.6. PW.1 is the de
facto complainant. He disowned Ext.P3, the complaint given by him to
the Vigilance Dy.S.P., PW.9. PW.2 is the then Additional District
Officer, Economics and Statistics Department, Kalpetta. He is an
independent official witness to the trap. PW.3 is the special Village
Officer of Payyambally Village. PW.4 was the then Deputy Collector,
Land Tribunal, Ambalavayal. PW.5 is the then Tahsildar,
Mananthawady Taluk under whom Payyambally Village Office
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functioned. PW.6 is the then Sub Registrar, Mananthawady who
produced Ext.P14 the certified copy of title deed of PW.1 over the
property. PW.7 is the then Assistant Commissioner, Land Revenue
Commissionerate, Thiruvananthapuram, who proved Ext.P15, the order
of sanction. Pw.9 is the trap laying officer. PW.8 is the Inspector
attached to VACB, Wayanad, who conducted investigation. PW.10 is
the successor-in-office of PW.9 who laid the charge. When questioned
under sec.313 of Cr.P.C. the accused denied having committed any
offence. His case was that the tainted currency notices were thrust
into his pocket by PW.1, the de facto complainant and that as he has
registered a case against one Ammini for illegal cutting of rosewood
tree from Government land, one Thankachan, brother of Ammini, in
collusion with PW.1 foisted this case against him. No defence
evidence was adduced.
4. The lower court on an appreciation of evidence found the
appellant/accused guilty of the offences punishable under secs.7 and
13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of
1988, convicted him thereunder and sentenced him as aforesaid. The
accused has challenged his conviction and sentence in this appeal.
5. Heard the learned counsel for the revision petitioner and the
learned Public Prosecutor.
6. The following points arise for consideration:-
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I. Whether the accused is a public servant as defined
under sec.2(c) of Prevention of Corruption Act of 1988?
II. Whether the order of sanction Ext.P15 sanctioning
prosecution against the accused is legal and valid?
III. Whether the prosecution has proved that the accused
demanded and accepted a bribe of Rs.300/- from PW.1
from his house in April 1997 and demanded a further bribe
of Rs.5000/- from PW.1 as a motive or reward for
measuring the land for PW.1 and for preparing its SMC
report and sketch for obtaining Pattayam.
IV. Whether the prosecution has proved that the accused
demanded and accepted a bribe of Rs.500/- from PW.1 for
the same purpose from his office on June 6, 1997?
V. Whether the conviction of the appellant by the lower
court under secs.7 and 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 can be sustained?
VI. Whether the sentence imposed is excessive or unduly
harsh?
Points I and II
7. It is not disputed and proved by the evidence adduced by the
prosecution especially by Ext.P13, copy of the proceedings of the
District Collector, Wayanad, dated 27.5.1996 whereunder the accused
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was transferred and posted as Village Officer, Payyambally. Ext.P12
the joining report dated 23.8.2996, Ext.P6 the attendance register of
Payyambally Village Office, and Ext.P15 the sanction order issued by
the Commissioner of Land Revenue, Thiruvananthapuram for
prosecuting the accused that during the relevant period the accused
was working as Village Officer, Payyambally. Therefore he is a ‘public
servant’ as defined under sec.2(c) of Prevention of Corruption Act of
1988. The finding of the lower court on this point is confirmed.
8. Ext.P15 is the order of sanction issued by the Commissioner
of Land Revenue, Thiruvananthapuram, sanctioning prosecution
against the accused, the validity of which is not seriously disputed in
this appeal and which is also proved by PW.7, the Assistant
Commissioner. Therefore I confirm the finding of the lower court that
Ext.P15 order of sanction is legal and valid.
Point No.III
9. PW.1, the de facto complainant, turned hostile and did not
support the prosecution. The case of Pw.1, de facto complainant, as
revealed from Ext.P3, the F.I. Statement in short is that his 50 cents of
land in payyambally village in re-survey was shown as belonging to
Thrissilery Devaswom, that to establish his right over the same he
required Pattayam for which SMC sketch and report prepared by the
Village Officer is necessary, that for that purpose he handed over an
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application form from the Tribunal with copies of his title deed and
revenue receipts in April 1997 to the accused from his house, that at
that time the accused demanded and accepted Rs.300/- from PW.1 as
illegal gratification for meeting the expenses, that the accused
expressed his dissatisfaction and demanded a further bribe of
Rs.5000/- which on the request of PW.1 was agreed upon to be paid in
instalments with the first instalment of Rs.500/- to be paid at his office
in the morning of June 6, 1997 and that as PW.1 was not willing to pay
the bribe he met PW.9, the then Dy.S.P., Vigilance, Wayanad and gave
Ext.P3 complaint. But as PW.1 he testified that the accused never
demanded bribe either in April 1997 or on the date of the trap.
Therefore the prosecution has failed to prove that in April 1997 the
accused demanded and accepted a bribe of Rs.300/- from PW.1 for the
purpose of measuring his land and preparing sketch and that at that
time he demanded a further bribe of Rs.5000/-. The finding of the
lower court on this point is confirmed.
Point Nos.IV and V
10. The next point to be considered is whether the accused has
demanded and accepted a bribe of Rs.500/- from his office on June 6,
1997 for the purpose of measuring his land and preparing SMC sketch
and report for obtaining Pattayam and accepted the same. Counsel
for the revision petitioner argued that as PW.1 turned hostile and as
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there is no evidence for the demand of alleged bribe by the accused,
the prosecution has not succeeded in establishing its case. The
Public Prosecutor appearing for the prosecution has argued that there
is sufficient legal and acceptable evidence to prove that the accused
demanded and accepted a bribe of Rs.500/- from PW.1 on June 6,
1997 from his office. As regards the acceptance of bribe, there is ,
in my view, unassailable evidence for recovery of the tainted currency
notes from the accused.
11. PW.9 is the trap laying officer. He recovered the trap
money from the accused. He testified before the trial court thus: On
June 6, 1997 Pw.1 came to his office and gave Ext.P3 F.I. Statement
stating that the accused has demanded and accepted a bribe of
Rs.300/- in April 1997 for measuring the land of PW.1 and preparing
the sketch and that he further demanded a bribe of Rs.5000/-, out of
which Rs.500/- has to be paid on June 6, 1997. He registered the
FIR Ext.P3(a) and arranged for a trap with the assistance of PW.2 and
CW.3, two Government Officials. PW.1 produced the trap money, ten
currency notes of Rs.50/- each, MO.1 series. PW.9 prepared Ext.P5
mahazar in the presence of the witnesses and treated MO.1 series
currency notes with phenolphthalein powder. He returned the
currency notes to PW.1 with a direction to handover the same to the
accused if demanded. After complying with the legal formalities they
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proceeded to the office of the accused. On reaching the office of the
accused, he sent PW.1 along with a constable to the office room of the
accused. The constable waited outside and PW.1 went inside. A few
minutes later, on receiving the signal from PW.1, the trap party rushed
to the office room of the accused. PW.9 disclosed his identity and
questioned the accused whether he had received any money from
PW.1. The accused got bewildered and took out a bundle of currency
notes from his pocket and placed it on the table. Phenolphthalein
test on his right hand and on the currency notes proved positive. On
examining the currency notes it was found that MO.1 series currency
notes were placed inside a Rs.100/- note, MO.3. Phenolphthalein test
conducted on MO.3 also found to be positive. Thereafter the house
of the accused was searched.
12. PW.9 was seen elaborately cross-examined by the defence
counsel. No serious discrepancies or inconsistencies were brought out
during his cross-examination. When cross-examined he asserted that
PW.1 came to his office and gave Ext.P3 statement which he has truly
and correctly recorded, that PW.1 told him that the accused demanded
and accepted a bribe of Rs.300/- in April 1997 from his house for
preparing SMC sketch and plan, that accused further demanded a
bribe of Rs.5000/- and of which Rs.500/- has to be paid on June 6,
1997. There is nothing to show that he has any enmity towards the
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accused. His evidence is fully supported by PW.2, the independent
official witness to the trap. Therefore the lower court is perfectly right
in believing his evidence that PW.1 told him that the accused
demanded and accepted a bribe of Rs.300/- in April 1997 and that
accused further demanded a bribe of Rs.5000/- out of which Rs.500/-
has to be paid on June 6, 1997 from his office and that subsequently
the trap money was recovered from the accused.
13. PW.2, the independent official witness to the trap, supported
Pw.9 on all material particulars. He is the then Additional District
Officer, Economics and Statistics, Kalpetta. He gave a consistent
version regarding the pre-trap formalities conducted in the office of
PW.9 and the laying of trap. He would say that on seeing the trap
team, accused took out the MO.1 series currency notes from his
pocket and placed it on the table. Cross-examination was not
successful in eliciting any discrepancy or defect in his version which is
fully in accordance with that of PW.9. He has no pre-acquaintance
with the accused or any enmity towards the accused. He is a truly
and independent witness. Therefore the lower court is right in
accepting his evidence.
14. The next question for consideration is whether the version
of the accused that PW.1 thrust the MO.1 series currency notes into
the pocket of the accused can be believed or not. For several reasons
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I am not inclined to accept the above story of the accused. Firstly,
the MO.1 series currency notes were found inside a one hundred rupee
note, MO.3. It is unlikely that by thrusting the currency notes into the
pocket, the said currency notes will get inside the MO.3 currency note.
Secondly, such a case was developed in the course of the trial. He did
not take such a plea at the time of trap. Lastly, the story put forward
by the accused is, in my view, an improbable one. Therefore the
lower court is perfectly right in rejecting the said story put forward by
the accused. In my view, the accused put forward such a story only
to escape from liability.
15. The next point to be considered is whether the evidence
referred to in the foregoing is sufficient to hold that the prosecution
has succeeded in establishing the offence charged against the accused.
On the other hand, the question is whether the presumption under
sec.20 of the Prevention of Corruption Act, 1988 is available for the
prosecution. Counsel for the accused argued that PW.1/de facto
complainant turned hostile and stated that the accused never
demanded any bribe, that there is no evidence of demand of the bribe
by the accused and that therefore the presumption under sec.20 of
the Prevention of Corruption Act cannot be raised in this case. I am
unable to agree. In M.Narasinga Rao v. State of Andhra Pradesh
(AIR 2001 SC 318) the Apex Court has held that once the
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prosecution has established that the gratification is paid and the
accused has accepted the same, the presumption under sec.20 of the
Prevention of Corruption Act can be raised. In Narasinga Rao’s case,
the de facto complainant and an independent witness turned hostile
and did not support the prosecution. Even then the Apex Court has
raised a presumption under sec.20 of the Prevention of Corruption
Act, 1988 and observed that the condition for drawing a legal
presumption under sec.20 is that during trial it should be proved that
the accused has accepted or agreed to accept any gratification. In
the present case I have found that the prosecution has succeeded in
proving that the accused has accepted the bribe. That being so,
the contention of the accused that as PW.1, the de facto complainant
did not support the prosecution, the presumption under sec.20 of the
Prevention of Corruption Act cannot be raised, has only to be rejected.
16. It is proved by the evidence of PW.9, Dy.S.P. and PW.2, the
official witness to the trap, that P.W.1 has paid the gratification and
the accused has accepted the same. I have found that the
explanation offered by the accused that PW.1 forcibly thrust the
currency notes into the pocket of the accused is not a probable one.
That being so, the presumption under sec.20 of the Prevention of
Corruption Act is available for the prosecution. That apart, the
demand is implicit in the entire affair. Therefore, in the light of the
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principles laid down in the above decision and from the proved facts in
the case, it can be legitimately presumed that the accused has
demanded and accepted an illegal gratification of Rs.500/- from PW.1
on June 6, 1997 from his office as a motive or reward for measuring
his land and preparing SMC report and sketch. Therefore I hold that
there is legally acceptable evidence sufficient to make out an offence
under sec.7 of the Prevention of Corruption Act, 1988. That being so,
in my view the trial court is perfectly justified in convicting the accused
under sec.7 of the Prevention of Corruption Act. The trial court is also
correct in convicting the accused under secs.7 and 13(1)(d) read with
sec.13(2) of the Prevention of Corruption Act of 1988 as he had
obtained a pecuniary advantage to the extent of Rs.500/- while he was
holding the position as a public servant. Therefore, I confirm the
conviction of the appellant/accused under secs.7 and 13(1)(d) read
with sec.13(2) of Prevention of Corruption Act, 1988.
Point No.VI
17. As regards the sentence, the trial court imposed a sentence
of rigorous imprisonment for two years under each count and a fine of
Rs.5000/- under sec. 13(1)(d) read with sec.13(2) of the Prevention
of Corruption Act of 1988. The incident occurred in the year 1997.
The amount involved is only Rs.500/-. Counsel for the appellant
submitted that the appellant is aged 60 and is now dismissed from
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service. Taking into consideration all these facts, I feel that the
substantive sentence imposed by the trial court can be reduced to
rigorous imprisonment for one year. The sentence of fine is
maintained.
In the result the revision petition is allowed in part. The
conviction of the revision petitioner under secs.7 and 13(1)(d) read
with sec.13(2) of the Prevention of Corruption Act of 1988 is
confirmed. The substantive sentence imposed by the trial court is
reduced to rigorous imprisonment for one year under each count.
The sentence of fine imposed by the trial court is maintained. His
bail bonds are cancelled. The accused shall surrender before the trial
court on or before 30.1.2010 to receive his sentence.
P.Q. BARKATH ALI, JUDGE
mt/-