{"id":161178,"date":"2003-12-18T00:00:00","date_gmt":"2003-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-abdul-kaffar-vs-state-of-kerala-on-18-december-2003"},"modified":"2015-08-09T02:35:31","modified_gmt":"2015-08-08T21:05:31","slug":"a-abdul-kaffar-vs-state-of-kerala-on-18-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-abdul-kaffar-vs-state-of-kerala-on-18-december-2003","title":{"rendered":"A.Abdul Kaffar vs State Of Kerala on 18 December, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">A.Abdul Kaffar vs State Of Kerala on 18 December, 2003<\/div>\n<div class=\"doc_author\">Author: S Hegde<\/div>\n<div class=\"doc_bench\">Bench: N.Santosh Hegde, B.P.Singh<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  436 of 1997\n\nPETITIONER:\nA.Abdul Kaffar\t\t\t\t\t\t\n\nRESPONDENT:\nState of Kerala\t\t\t\t\t       \n\nDATE OF JUDGMENT: 18\/12\/2003\n\nBENCH:\nN.Santosh Hegde &amp; B.P.Singh\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<\/p>\n<p>SANTOSH HEGDE,J.\n<\/p>\n<p>\tThe appellant herein was charged of offences punishable<br \/>\nunder sections 7, 13(1)(d) read with 13(2) of the Prevention of<br \/>\nCorruption Act, 1988 (the Act) and sections 201 and 477-A of the<br \/>\nIPC. The Enquiry Commissioner and the Special Judge, Thrissur,<br \/>\nfound the appellant guilty of offence punishable under section 7 of<br \/>\nthe Act and sentenced him to undergo RI for 6 months on that count.<br \/>\nHe also found him guilty under section 13(1)(d) read with section<br \/>\n13(2) and sentenced him to undergo 2 years&#8217; RI. He also found the<br \/>\nappellant guilty under section 201 IPC and sentenced him to<br \/>\nundergo 6 months&#8217; RI, while he found the appellant not guilty of<br \/>\noffence punishable under section 477-A IPC and acquitted him of<br \/>\nthe said charge.\n<\/p>\n<p>In an appeal filed before the High Court of Kerala at<br \/>\nErnakulam, the High Court agreed with the finding of the trial court<br \/>\non all counts and affirmed the judgment of the trial court by<br \/>\ndismissing the said appeal. It is against the said judgment of the<br \/>\ncourts below the appellant has preferred this appeal.<br \/>\n\tThe prosecution case briefly stated is that when the appellant<br \/>\nwas working as a Sales-tax-cum-Agricultural Income Tax Officer in<br \/>\nDevikulam Range of Idukki district in Kerala, he demanded a sum<br \/>\nof Rs.50,000 from the appellant sometime in the month of February,<br \/>\n1989 for showing official favour to PW-1 in regard to proposed<br \/>\nassessment of his turnover which according to the prosecution would<br \/>\nin the normal course be about Rs.8 lacs. The appellant allegedly<br \/>\npromised PW-4 that he would bring down the same to Rs.2 lacs if he<br \/>\nwas paid the said sum of money. The appellant allegedly told PW-1<br \/>\nthat he could pay the amount on a day convenient to him preferably<br \/>\nin March, 1989 when he was to visit Munnar. It is the case of PW-1<br \/>\nthat on such demand being made by the appellant, he contacted PW-<br \/>\n13 who was then working as a Deputy Superintendent of Police at<br \/>\nIdukki who, on receipt of said complaint of PW-1,  registered a case<br \/>\nunder section 7 of the Act and laid a trap according to which PW-1<br \/>\nwas to carry Rs.10,000 in currency notes of Rs.100 denomination<br \/>\nwhich were marked and smeared with phenolphthalein powder. PW-<br \/>\n1 was then directed to approach the appellant with instructions to<br \/>\nhand over the said money to the appellant who was then staying in<br \/>\nS.N. Tourist Home at Munnar. It is the prosecution case that on the<br \/>\nmoney being paid by PW-1 to the appellant, PW-13 and other<br \/>\nwitnesses to the trap approached the appellant who on being<br \/>\nquestioned admitted having received the said money but told the I.O.<br \/>\nand others that the said money was received by him not as bribe but<br \/>\nas advance payment from PW-1 towards his sales-tax dues. Being<br \/>\nnot satisfied with the explanation given by the appellant and after<br \/>\nfurther investigation, he was charged for offences punishable as<br \/>\nstated above and after trial was found guilty by the trial court as well<br \/>\nas the High Court.\n<\/p>\n<p>Mr. Sushil Kumar, learned senior counsel appearing for the<br \/>\nappellant, contended that since it is the defence of the appellant that<br \/>\nthe amount in question was paid by PW-1 to him on 6.4.1989 at the<br \/>\nTourist Home where he was staying, the sole question that arises for<br \/>\nthe consideration of this Court is whether the said amount was<br \/>\nreceived as a bribe or advance   payment   towards the   sales-tax<br \/>\ndues of PW-1&#8217;s firm. He submitted that from the evidence of<br \/>\nprosecution witnesses themselves, it is clear that the sales-tax<br \/>\ndepartment had evolved a scheme for an effective and quick<br \/>\ncollection of sales-tax dues by which the Officers were directed to<br \/>\ncollect sales-tax dues even in cash wherever so offered and remit the<br \/>\nsame to the local treasury and it is in this process that PW-1 had paid<br \/>\nRs.10,000 to the appellant. He also submitted that there was a raid<br \/>\nearlier in the premises of the firm belonging to the appellant who<br \/>\nwas running a liquor shop and the firm was an unregistered firm and<br \/>\nassessment and other penalty proceedings were going on against<br \/>\nPW-1&#8217;s firm because of which raid and assessment proceedings the<br \/>\nappellant was aggrieved, therefore, with a view to take revenge and<br \/>\nharm the appellant, PW-1 with the help of a senior Police Officer<br \/>\nwho was known to him made a false complaint against the appellant<br \/>\nand organised a trap with the help of PW-13 the I.O. in this case.<br \/>\nLearned counsel also pointed out the fact that the amount in question<br \/>\nwas received by the appellant from PW-1 towards advance payment<br \/>\nof tax which is established by the receipt given by the appellant to<br \/>\nPW-1. The counterfoil of which was found in the official receipt<br \/>\nbook recovered by the  investigating agency itself later. He<br \/>\nsubmitted that the contents of the said receipt and the endorsement<br \/>\nmade at the back of the said receipt clearly showed that the amount<br \/>\nin question was received as advance-tax payment and since on the<br \/>\nsame day the said amount could not be deposited in the treasury he<br \/>\nhad retained the same with him. Therefore, according to the learned<br \/>\ncounsel, it is clear that the appellant is being harassed at the instance<br \/>\nof PW-1 and the prosecution has failed to establish its case against<br \/>\nthe appellant. He also contended that both the courts below did not<br \/>\nproperly appreciate the significance of the receipt, copy whereof was<br \/>\nfound in the receipt book seized by the Police. Learned counsel also<br \/>\npointed out that the appellant was arrested on 6.4.1989 and was<br \/>\nquestioned till early morning of 7.4.1989 after that he was released<br \/>\non bail and immediately thereafter on the first available opportunity,<br \/>\nthe appellant had sent his report to his superior Officers in which he<br \/>\nhad mentioned about the receipt of the money from PW-1 as also<br \/>\nhaving given a valid receipt therefor. In such circumstances the<br \/>\ncourts below ought not to have accepted the prosecution case.<br \/>\n\tMr. Ramesh Babu, learned counsel representing the State of<br \/>\nKerala, contended that a perusal of the receipt allegedly given by the<br \/>\nappellant to PW-1 assuming it to be true, itself shows that this could<br \/>\nnot have been a receipt for having received advance sales-tax<br \/>\npayment. Learned counsel pointed out that as per the contents of the<br \/>\nsaid receipt it is seen that the tax was being paid for the assessment<br \/>\nyear 1987-88 in the month of March, 1989 whereas the Circular<br \/>\nrelied upon by the appellant himself, shows that the Officers were<br \/>\nempowered to collect advance-tax only for the months of March and<br \/>\nApril of that year during which the tax has become payable.<br \/>\nAccording to learned counsel the tax for the months of March and<br \/>\nApril, 1989 had not become payable on 6.3.1989 therefore the<br \/>\ndefence set up by the accused is based on a non-genuine document.<br \/>\n\tFrom the arguments of learned counsel appearing for the<br \/>\nparties it is clear that the only point for our consideration in this case<br \/>\nis whether the appellant received the money in question from PW-1<br \/>\nas advance payment of sales-tax. If so, did the appellant issue a<br \/>\nreceipt as contended on behalf of the appellant? For deciding this<br \/>\nquestion, the facts necessary as brought out on record are as follows:\n<\/p>\n<p>          According to the prosecution on 6.4.1989 at about 5 p.m. the<br \/>\naccused received Rs.10,000 as an illegal gratification for showing<br \/>\nofficial favour to PW-1 in the Tourist Home where the appellant was<br \/>\nstaying. According to the appellant, he received the said sum of<br \/>\nmoney as advance payment of sales-tax due from the appellant. In<br \/>\nsupport of this contention the appellant relies upon the copy of the<br \/>\nreceipt found in the receipt register giving the particulars of the<br \/>\nreceipt of the money and the endorsement made at the back to the<br \/>\neffect that the money in question could not be deposited in the<br \/>\ntreasury for want of time. There is no dispute that such a receipt<br \/>\nbook was produced by the appellant during the course of<br \/>\ninvestigation but the question is: is the receipt contained in the said<br \/>\nbook pertaining to the payment of money by the appellant a genuine<br \/>\nreceipt or not ? PW-1 denies the fact that the appellant had ever<br \/>\ngiven him an official receipt for payment of advance tax. He also<br \/>\ndenies that the said amount was paid to the appellant as advance-tax.<br \/>\nIn this process if we examine the conduct of the appellant, we notice<br \/>\nthat when the appellant was arrested at about 6.30 p.m. on 6.3.1989<br \/>\nor 9 p.m.(as the case may be) on the same day, he did not tell the<br \/>\nI.O. that he had received the money as part payment of tax due from<br \/>\nPW-1 and had issued a receipt for the same. If really the appellant<br \/>\nhad on receipt of the money from PW-1 given him any official<br \/>\nreceipt as now contended by the appellant then he would not have<br \/>\nforgotten to tell the I.O. as to the issuance of an official receipt to<br \/>\nPW-1 or as to the existence of a receipt book in which a duplicate<br \/>\ncopy of the receipt was maintained because that would have been a<br \/>\nclinching defence for the appellant to prove that the money in<br \/>\nquestion was not received as an illegal gratification. The very fact<br \/>\nthat he failed to mention this to the I.O. at the first available<br \/>\nopportunity, shows that this defence is not genuine. Learned counsel<br \/>\nappearing for the appellant however submitted that due to the mental<br \/>\nstate of the appellant at the time of arrest it is possible that the<br \/>\nappellant forgot to mention that part of his defence that he had<br \/>\nissued a receipt and a copy of the receipt book was available with<br \/>\nhim. We do not think this is an acceptable excuse. If really the<br \/>\nappellant had given  a receipt to PW-1 immediately on receipt of<br \/>\nRs.10,000 in the Tourist Home where he was staying then the receipt<br \/>\nbook must have been there when the raiding party entered his room.<br \/>\nThere could be no reason for him to either forget to tell the I.O.<br \/>\nabout the receipt having been given to PW-1 or in offering the<br \/>\nreceipt book to the I.O. From the sequence of events it can be seen<br \/>\nthat if really the appellant had issued a receipt to PW-1 on receiving<br \/>\nthe money, then the raiding party would have noticed the same<br \/>\nbecause they came immediately after the money was received.<br \/>\nTherefore, the only conclusion available on this point is that the<br \/>\nreceipt was prepared by the appellant after he was released on bail<br \/>\nand the same is now sought to be utilised as a defence for the money<br \/>\nreceived which we think is unacceptable. Since this is the only<br \/>\nquestion for our consideration, this finding of ours should be<br \/>\nsufficient to dismiss this appeal.\n<\/p>\n<p>\tBefore concluding, we must note that the facts as proved by<br \/>\nthe prosecution and as accepted by the two courts below including<br \/>\nus in this appeal, clearly prove that the appellant has committed the<br \/>\noffence punishable under section 477-A IPC also but for some<br \/>\nunacceptable reasons, the trial court came to the conclusion that the<br \/>\nsaid offence is not established. Be that as it may, the State has not<br \/>\npreferred any appeal, therefore, we need not go into that question in<br \/>\nthis appeal.\n<\/p>\n<p>\tFor the reasons stated above, this appeal fails and the same is<br \/>\nhereby dismissed. The appellant who is on bail shall surrender to the<br \/>\nbail and serve out the balance of sentence.\n<\/p>\n<p>\tThe appeal is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India A.Abdul Kaffar vs State Of Kerala on 18 December, 2003 Author: S Hegde Bench: N.Santosh Hegde, B.P.Singh CASE NO.: Appeal (crl.) 436 of 1997 PETITIONER: A.Abdul Kaffar RESPONDENT: State of Kerala DATE OF JUDGMENT: 18\/12\/2003 BENCH: N.Santosh Hegde &amp; B.P.Singh JUDGMENT: J U D G M E N T SANTOSH HEGDE,J. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-161178","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>A.Abdul Kaffar vs State Of Kerala on 18 December, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-abdul-kaffar-vs-state-of-kerala-on-18-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Abdul Kaffar vs State Of Kerala on 18 December, 2003 - Free Judgements of Supreme Court &amp; 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