{"id":172936,"date":"2007-03-02T00:00:00","date_gmt":"2007-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-n-anantha-narayanan-vs-state-of-kerala-on-2-march-2007"},"modified":"2015-10-23T19:04:49","modified_gmt":"2015-10-23T13:34:49","slug":"dr-n-anantha-narayanan-vs-state-of-kerala-on-2-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-n-anantha-narayanan-vs-state-of-kerala-on-2-march-2007","title":{"rendered":"Dr.N.Anantha Narayanan vs State Of Kerala on 2 March, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Dr.N.Anantha Narayanan vs State Of Kerala on 2 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1295 of 2004(A)\n\n\n1. DR.N.ANANTHA NARAYANAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.G.JANARDHANA KURUP (SR.)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :02\/03\/2007\n\n O R D E R\n                               K.THANKAPPAN, J.\n\n                       ---------------------------------------------\n\n                       CRL. APPEAL  NO. 1295 OF 2004\n\n                      ----------------------------------------------\n\n\n                      Dated this the 2nd  day of March,  2007\n\n\n                                     JUDGMENT\n<\/pre>\n
       This  appeal  is filed against  the judgment in  C.C.No.15 of 2001  on<\/p>\n
the file of the Enquiry   Commissioner and Special Judge, Thrissur.     The<\/p>\n
appellant faced trial for the offences punishable under Sections 7 and 13(1)<\/p>\n
(d)   read   with   Section   13(2)   of   the   Prevention   of   Corruption   Act,   1988<\/p>\n
(hereinafter referred to as “the P.C. Act”).\n<\/p>\n
       2.    The   prosecution  case     against   the   appellant  was   that   while   the<\/p>\n
appellant   was   working   as   Anaesthesiologist   at   Taluk     Headquarters<\/p>\n
Hospital, Muvattupuzha,   he demanded a sum of Rs.300\/- from PW.2 for<\/p>\n
giving anaesthesia to his sister, one Nabeeza (CW.5) who was admitted in<\/p>\n
the said hospital for undergoing Thyroidectomy  surgery.   The further case<\/p>\n
of   the   prosecution   was   that   the   demand   was   made   at   about   7   p.m.   on<\/p>\n
19.3.1999   at   his   residence   in   the   Housing   Board   Colony,   Muvattupuzha<\/p>\n
and that PW.2, who was not willing to give bribe,  approached  PW.12, the<\/p>\n
Deputy Superintendent  of Police, Vigilance  and Anti-Corruption  Bureau,<\/p>\n
CRL.APPEAL NO.1295\/2004                           2<\/span><\/p>\n
Ernakulam and gave Ext.P2    first information statement.   It is the further<\/p>\n
case   of   the   prosecution   that     on   the   basis   of   Ext.P2,     PW.12   laid   a   trap<\/p>\n
against   the   appellant     and   when   the   appellant   came   to   his   official<\/p>\n
consultation   room   at   the   hospital   at   11   a.m.    on   24.3.1999,   PW.2     went<\/p>\n
inside the room along with his brother and PW.3, the official witness and<\/p>\n
in furtherance of the demand made by the appellant PW.2 gave him three<\/p>\n
currency notes  of hundred  rupee denomination  which  were smeared  with<\/p>\n
phenolphthalein powder at the office of PW.12.   The said currency notes<\/p>\n
were recovered from the appellant and the appellant was arrested at 12.10<\/p>\n
p.m. on 24.3.1999 from his official consultation room.  To prove the case<\/p>\n
against the appellant, the prosecution examined PWs.1 to 12 and  produced<\/p>\n
Exts.P1  to P17  as  well as MOs.1  to 9. No oral  or documentary evidence<\/p>\n
was   adduced   on   the   side   of   the   defence.       On   closing   the   prosecution<\/p>\n
evidence,   the   appellant   was   questioned   under   Section   313   Cr.P.C..     He<\/p>\n
denied   the   allegations   levelled   against   him   and   stated   that   the   case   was<\/p>\n
foisted against him on the advise of the Vigilance Officer, one George and<\/p>\n
some   persons   of   the   D.Y.F.I     who   had   demanded   Rs.1000\/-   from   him<\/p>\n
towards   certain   fund   and     he   had   given   only   Rs.300\/-.     The   appellant<\/p>\n
further   stated   that   the   surgery   of   the   sister   of   PW.2   was   provisionally<\/p>\n
posted   to   24.3.1999   on   the   advise   of     Dr.Nathaniel   Thomas   and   that   on<\/p>\n
examination, the pulse rate of the patient was found to be very high   and<\/p>\n
CRL.APPEAL NO.1295\/2004                         3<\/span><\/p>\n
since it was risky to administer anaesthesia at that stage,  he had prescribed<\/p>\n
tablets to reduce the pulse rate.  He further stated that on 24.3.1999 while<\/p>\n
he   was   in   the   consultation   room  at   the   hospital   and   examining   patients,<\/p>\n
three persons entered the room and enquired about the surgery of the sister<\/p>\n
of   PW.2   and   immediately   PW.12   entered   the   room   and   asked   him   to<\/p>\n
remove  his  brief case from the  table  and that when  he did  so,   he found<\/p>\n
some   currency   notes   kept   under   the   brief   case.       The   appellant   further<\/p>\n
stated that the said currency notes when subjected to phenolphthalein test<\/p>\n
gave positive result.       However, relying on the evidence adduced by the<\/p>\n
prosecution,   the   trial     court   found   the   appellant   guilty   of     the   offence<\/p>\n
punishable under Section 7 of the P.C. Act, convicted him thereunder and<\/p>\n
sentenced him to undergo rigorous imprisonment for a period of one year<\/p>\n
and   to   pay   a   fine   of   Rs.10,000\/-   and   in   default   of   payment   of   fine   to<\/p>\n
undergo  simple   imprisonment   for   a   further   period   of   two   months.     The<\/p>\n
appellant was found not guilty of the offence punishable under Section 13<\/p>\n
(1)(d)  read  with  Section  13(2)  of  the  P.C.  Act.      The  appellant  was also<\/p>\n
given   the   benefit   of   Section   428   Cr.P.C.     The   above   conviction   and<\/p>\n
sentence are challenged in this appeal.\n<\/p>\n
        3.  This Court heard Sri. G.Janardana Kurup, learned senior counsel<\/p>\n
appearing   for   the   appellant   as   well   as   the   learned   Public   Prosecutor.\n<\/p>\n
CRL.APPEAL NO.1295\/2004                         4<\/span><\/p>\n
Learned senior counsel appearing for the appellant raised three contentions<\/p>\n
before this Court:   (i) the trial court went wrong in accepting Ext.P2 first<\/p>\n
information  statement   as PW.2 who was alleged to have given the bribe<\/p>\n
had   not   supported   the   prosecution   case,   (ii)   the   trial   court   ought   not   to<\/p>\n
have   acted   upon   the   evidence   given   by   PWs.3   and   12   with   regard   to<\/p>\n
recovery   of   the   amount   from   the   appellant   as   their   evidence   is   not<\/p>\n
corroborated by any other piece of evidence and (iii) even if the recovery<\/p>\n
of   the   tainted   currency   notes   is   accepted,   mere   recovery   of   the   said<\/p>\n
currency notes is not sufficient to prove that the appellant committed the<\/p>\n
offence   punishable   under   Section   7   of   the   P.C.   Act   as   the   prosecution<\/p>\n
failed to prove demand or acceptance of the amount by the appellant.\n<\/p>\n
        4.       The   prosecution   examined   PW.1   who   was   the   Additional<\/p>\n
Secretary     of   the   Health   Department   to   prove   Ext.P1   sanction   order     to<\/p>\n
prosecute   the   appellant   under   the   P.C.   Act.       This   witness   had   given<\/p>\n
evidence   to   the   effect   that   Ext.P1   sanction   order   was   issued   after<\/p>\n
considering   the   facts   and   circumstances   of   the   case   and   the   materials<\/p>\n
collected by the Vigilance Department and after satisfying that the charges<\/p>\n
levelled  against the appellant  requires  to be tried under the provisions  of<\/p>\n
the   P.C.   Act.       Though   Ext.P1   sanction   order   was   challenged   by   the<\/p>\n
defence, the trial court correctly accepted Ext.P1 as having been properly<\/p>\n
CRL.APPEAL NO.1295\/2004                       5<\/span><\/p>\n
issued as per the provisions of the P.C. Act.\n<\/p>\n
       5.  PW.2,  the brother of CW.5 Nabeeza who was admitted in Taluk<\/p>\n
Headquarters   Hospital,   Muvattupuzha     for   Thyroidectomy   surgery,     was<\/p>\n
examined  to prove that the appellant  demanded and  accepted  bribe.     He<\/p>\n
deposed before the court below that the operation of his  sister was fixed<\/p>\n
provisionally on 24.3.1999 and that she was advised to seek the opinion of<\/p>\n
the   Anaesthesiologist.     This   witness   further   stated   that   the   appellant<\/p>\n
demanded a bribe of Rs.300\/- on 19.3.1999 and since he was not willing to<\/p>\n
pay   the   amount,   he   preferred   a   complaint   against   the   appellant   before<\/p>\n
PW.12.     He admitted   his   signature   in   Ext.P2  first   information  statement.\n<\/p>\n
He   also   stated   that   he   produced   three   currency   notes   of   hundred   rupee<\/p>\n
denomination   before   PW.12   who   after   smearing   the   said   currency   notes<\/p>\n
with   phenolphthalein   powder   returned   the   same   to   him   as   per   Ext.P4<\/p>\n
entrustment mahazar for giving to the appellant.   PW.2 further stated that<\/p>\n
he placed the tainted currency notes under the brief case which was seen<\/p>\n
on   the   table   of     the   appellant.         This   witness   did   not   support   the<\/p>\n
prosecution  case  that  the  appellant  accepted    the  currency  notes  with  his<\/p>\n
left hand.  The trial court analysed the evidence of this witness and found<\/p>\n
that   though   PW.2   did   not   support   the   prosecution   case   with   regard   to<\/p>\n
acceptance   of     the   amount   by   the   appellant,     Ext.P2   first   information<\/p>\n
CRL.APPEAL NO.1295\/2004                       6<\/span><\/p>\n
statement given by him before PW.12 can be taken as true as PWs.3 and 12<\/p>\n
had  given  evidence  before  the  court  below  that  PW.2    had  given  Ext.P2<\/p>\n
first information statement before PW.12.\n<\/p>\n
       6.    PW.3  who  was  a  trap  witness  deposed  that  on  the  basis  of  the<\/p>\n
instruction received by him from A.D.M., Ernakulam, he went to the office<\/p>\n
of  PW.12 along  with  the  Additional  Tahsildar  on 24.3.1999.    He further<\/p>\n
stated   that   PW.2   who   was   present   in   the   office   produced   three   currency<\/p>\n
notes of hundred rupee denomination before PW.12 who smeared the said<\/p>\n
currency notes with phenolphthalein powder  and the currency notes were<\/p>\n
then   put   into   the   pocket   of   PW.2   on   preparing   Ext.P4   mahazar   with<\/p>\n
instruction   to   give   the   same   to   the   appellant   on   demand.     This   witness<\/p>\n
further stated that he accompanied PW.2 and his brother Moidheen to the<\/p>\n
hospital  and on  entering  the consultation  room of the  appellant  and  after<\/p>\n
getting a signal from the said Moidheen, PW.2   gave the tainted currency<\/p>\n
notes to the appellant who accepted the currency noes   with his left hand<\/p>\n
and     after   counting   the   currency   notes,   the   appellant     placed   the   same<\/p>\n
under the brief case kept on the table.   PW.3 further stated that as soon as<\/p>\n
PW.2 gave the signal, PW.12 and other members of the trap team entered<\/p>\n
the consultation room of the appellant and found the currency notes kept<\/p>\n
under   the   brief   case   and   that   the   currency   notes   when   subjected   to<\/p>\n
CRL.APPEAL NO.1295\/2004                     7<\/span><\/p>\n
phenolphthalein test were found to be the same currency notes which were<\/p>\n
entrusted  with  PW.2  as  per  Ext.P4  entrustment   mahazar  as   the   test  gave<\/p>\n
positive result.\n<\/p>\n
       7.   PWs.4 to 9 were examined to  prove the admission  of Nabeeza,<\/p>\n
sister   of   PW.2   at   Taluk   Headquarters   Hospital,   Muvattupuzha.     PW.10<\/p>\n
was the Village Officer who prepared Ext.P12 scene plan.\n<\/p>\n
       8.  PW.11 was the General Surgeon of Taluk Headquarters Hospital,<\/p>\n
Muvattupuzha.     He   stated   before   the   court   below   that   he   had   issued<\/p>\n
Ext.P13 prescription in the name of the patient, Nabeeza, and  had advised<\/p>\n
her   to   undergo   a   surgery   and   also   anaesthesia   check   up.     In   cross-\n<\/p>\n
examination, he deposed that the patient was posted for surgery subject to<\/p>\n
the  approval  of the  Anaesthesiologist.        The  evidence  of this  witness  is<\/p>\n
relevant  only to  show  that  Nabeeza  was provisionally  posted  for surgery<\/p>\n
on 24.3.1999 prior to which date the appellant had examined her.\n<\/p>\n
       9.   PW.12 was the Deputy Superintendent of Police, Vigilance and<\/p>\n
Anti-corruption   Bureau,   Ernakulam.     He   deposed   that   he   had   recorded<\/p>\n
Ext.P2   complaint   preferred   by   PW.2   and   lodged   Ext.P2(a)   First<\/p>\n
Information   Report.     This   witness     spoke   about   preparation   of   Ext.P4<\/p>\n
CRL.APPEAL NO.1295\/2004                       8<\/span><\/p>\n
mahazar after demonstration of the phenolphthalein test in the presence of<\/p>\n
PWs.2 and 3,  about laying the trap against the appellant and the recovery<\/p>\n
of the tainted currency notes placed under the brief case on the table in the<\/p>\n
official   consultation   room  of  the   appellant  on   preparing  Ext.P5   recovery<\/p>\n
mahazar.           The   evidence   of   this   witness   corroborates   with   the   version<\/p>\n
given by PW.3 who had accompanied PW.2 on the date of the incident.\n<\/p>\n
       10.     The   learned   senior   counsel   appearing   for   the   appellant<\/p>\n
submitted   that   since  PW.2  who  is   alleged  to   have   given  the   bribe   to   the<\/p>\n
appellant   had   himself   turned   hostile   to   the   prosecution,     Ext.P2   first<\/p>\n
information   statement   given   by   PW.2   cannot   be   taken   as   a   substantive<\/p>\n
piece   of   evidence   against   the   appellant   without     any   other   evidence   to<\/p>\n
corroborate  the  fact   that  the  appellant   had   demanded  and  accepted  bribe<\/p>\n
from PW.2.   Learned senior counsel submitted that the case set up by the<\/p>\n
appellant   when   he   was   questioned   under   Section   313   Cr.P.C.   was   not<\/p>\n
considered by the trial court properly.\n<\/p>\n
       11.     Admittedly,   Nabeeza,   the   sister   of   PW.2   was   admitted   in   the<\/p>\n
hospital   for   Thyroidectomy   surgery   and   the   surgery   was   provisionally<\/p>\n
fixed   on   24.3.1999.     This   is   evident   from   the   evidence   of   PW.11.\n<\/p>\n
Further,   it   has   come   out   in   evidence   that     the   appellant   had   examined<\/p>\n
CRL.APPEAL NO.1295\/2004                        9<\/span><\/p>\n
Nabeeza and had prescribed  tablets  for bringing  down her pulse rate.   In<\/p>\n
the   above   circumstances,   it   has   to   be   inferred   that   there   existed   a<\/p>\n
circumstance   for   the   appellant   to   do   some   favour   in   the   exercise   of   his<\/p>\n
official functions for which he wanted  a reward.   This fact was spoken to<\/p>\n
by both PWs.2 and 3.  That apart, while the complaint was filed before the<\/p>\n
Deputy Superintendent of Police, PW.2 had specifically stated that he and<\/p>\n
his brother Moidheen had met the appellant on 19.3.1999 and that on that<\/p>\n
day,   the   appellant   had   demanded   the   bribe.     Relying   on   the   above<\/p>\n
evidence,   the   trial   court   correctly   accepted   Ext.P2   and   found   that   the<\/p>\n
appellant   accepted   the   bribe   money   as   per   the   demand   made   by  him   on<\/p>\n
19.3.1999.\n<\/p>\n
       12.   The next  contention of the learned senior counsel appearing for<\/p>\n
the  appellant   is    that   the   evidence   of  PW.3, the   trap   witness,    cannot  be<\/p>\n
accepted  without   any other   evidence   to  corroborate   the   same,     as    PW.2<\/p>\n
himself turned hostile to the prosecution and he had stated he had placed<\/p>\n
the currency notes under the brief case kept on the table.   In this context,<\/p>\n
learned senior counsel placed reliance on the decisions of the Apex Court<\/p>\n
reported   in  Major   E.G.   Barsay   v.   State   of   Bombay,   A.I.R.<\/a>   1961   S.C.\n<\/p>\n
1762  I    and    Ram Prakash  Arora  v.  State  of  Punjab   (1972)   3   S.C.C.\n<\/p>\n
652.   It is seen that even though PW.2 turned hostile to the prosecution, he<\/p>\n
CRL.APPEAL NO.1295\/2004                       10<\/span><\/p>\n
had   admitted    having  filed  Ext.P2  complaint  before  PW.12    and  having<\/p>\n
produced   three   currency   notes   of   hundred   rupee   denomination   as<\/p>\n
instructed by PW.12.   PW.2 was declared hostile by the prosecution at the<\/p>\n
stage at which he deviated from the case with regard to payment of bribe to<\/p>\n
the appellant.  According to PW.2 he had placed the tainted currency notes<\/p>\n
under the brief case kept on the table.         In this    aspect, the evidence of<\/p>\n
PW.3   is   that   the   appellant   accepted   the   amount   from   PW2   with   his   left<\/p>\n
hand   and   placed   the   currency   notes   under   the   brief   case.       The   facts<\/p>\n
considered by the Apex Court in the above two decisions relied on by the<\/p>\n
learned senior counsel   are entirely different from the facts of the case in<\/p>\n
hand. In this context,  learned senior counsel also relied on the decision of<\/p>\n
the Apex Court reported in Darshan Lal v. Delhi Administration<\/a> (1974)<\/p>\n
3 S.C.C. 595.   In the above judgment, the Apex Court had taken the view<\/p>\n
that to accept the evidence of a trap witness, there should be independent<\/p>\n
and reliable  corroborative  evidence.     The  facts  considered    by the Apex<\/p>\n
Court   were   relating   to   charges   under   Section   5(2)   of   the   P.C.   Act   and<\/p>\n
Section   161   I.P.C.   and   there   was   no   evidence   that   the   accused   had<\/p>\n
accepted bribe or  that the bribe money was recovered from the body of the<\/p>\n
person.         In the case in hand, even though PW.2 had stated that he had<\/p>\n
placed the currency notes on the table and not paid the same directly to the<\/p>\n
appellant, PW.3, the trap witness   who had accompanied PW.2 had given<\/p>\n
CRL.APPEAL NO.1295\/2004                      11<\/span><\/p>\n
evidence to the effect that PW.2 gave the currency notes to the appellant<\/p>\n
on demand and the appellant  had accepted the same with  his left hand and<\/p>\n
then placed the currency notes under the brief case kept on the table.   The<\/p>\n
evidence of PW.3 is supported by the recovery made by PW.12 who had<\/p>\n
given evidence to the effect that MO.1 series of currency notes recovered<\/p>\n
as per Ext.P5 mahazar were the same currency notes which were brought<\/p>\n
to his office by PW.2 and which  he had entrusted with PW.2 as per Ext.P4<\/p>\n
mahazar.     Hence,   the   contention   of  the   learned   senior  counsel   that  there<\/p>\n
was no independent evidence  to corroborate the evidence of PW.2 cannot<\/p>\n
be accepted.\n<\/p>\n
       13.  A reading of the evidence of PW.12 coupled with the recovery<\/p>\n
of the currency notes as per Ext.P5 mahazar would clearly prove that the<\/p>\n
appellant   had   demanded   and   accepted   bribe   .     It   has   also   come   out   in<\/p>\n
evidence   that   the   currency   notes   recovered   by   PW.12   as   per   Ext.P5<\/p>\n
mahazar were the same currency notes entrusted with PW.2 as per Ext.P4<\/p>\n
mahazar.   The fact that the brother of PW.2 who had accompanied him  on<\/p>\n
19.3.1999 and on the day of the incident  is now working in Saudi Arabia<\/p>\n
and   that CW.5 left the hospital after recovery of the currency notes from<\/p>\n
the possession of the appellant cannot be taken as a ground to discard the<\/p>\n
prosecution   case.       In   other   words,   the   prosecution   has   succeeded   in<\/p>\n
CRL.APPEAL NO.1295\/2004                        12<\/span><\/p>\n
proving   the   case   against  the   appellant   as   alleged   and   the   trial   court   was<\/p>\n
fully   justified   in   finding   that   the   appellant   had   committed   the   offence<\/p>\n
punishable under Section 7 of the P.C. Act .\n<\/p>\n
        The Crl. Appeal is accordingly dismissed, confirming the judgment<\/p>\n
of the trial court.\n<\/p>\n
                                                   (K.THANKAPPAN, JUDGE)<\/p>\n
sp\/<\/p>\n
CRL.APPEAL NO.1295\/2004    13<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Dr.N.Anantha Narayanan vs State Of Kerala on 2 March, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 1295 of 2004(A) 1. DR.N.ANANTHA NARAYANAN, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :SRI.G.JANARDHANA KURUP (SR.) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice K.THANKAPPAN Dated :02\/03\/2007 […]<\/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":[8,21],"tags":[],"class_list":["post-172936","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nDr.N.Anantha Narayanan vs State Of Kerala on 2 March, 2007 - Free Judgements of Supreme Court & 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\/dr-n-anantha-narayanan-vs-state-of-kerala-on-2-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.N.Anantha Narayanan vs State Of Kerala on 2 March, 2007 - 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