{"id":66317,"date":"2009-12-21T00:00:00","date_gmt":"2009-12-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cyril-joseph-vs-state-of-kerala-on-21-december-2009"},"modified":"2015-03-25T16:19:04","modified_gmt":"2015-03-25T10:49:04","slug":"cyril-joseph-vs-state-of-kerala-on-21-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cyril-joseph-vs-state-of-kerala-on-21-december-2009","title":{"rendered":"Cyril Joseph vs State Of Kerala on 21 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Cyril Joseph vs State Of Kerala on 21 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 34 of 2002(A)\n\n\n1. CYRIL JOSEPH, S\/O. JOSEPH, UPPUVEETTIL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.V.P.REGHURAJ\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice P.Q.BARKATH ALI\n\n Dated :21\/12\/2009\n\n O R D E R\n                           P.Q. BARKATH ALI, J.\n\n                ------------------------------------------------------\n\n                       CRL. APPEAL 34 of 2002\n\n                ------------------------------------------------------\n\n                      Dated: DECEMBER 21, 2009\n\n                                   JUDGMENT\n<\/pre>\n
      The challenge in this appeal          is to the judgment of the Enquiry<\/p>\n
Commissioner and Special Judge, Kozhikode in CC 32\/1999 dated<\/p>\n
December 13, 2001 convicting the accused under                      secs.7 and 13(1)<\/p>\n
(d) read with sec.13(2) of the Prevention of Corruption Act of 1988<\/p>\n
and sentencing him to undergo rigorous imprisonment for two years<\/p>\n
under each count and to pay a fine of Rs.5,000\/-, in default to<\/p>\n
undergo rigorous imprisonment for six months under sec.13(1)(d)<\/p>\n
read with    sec.13(2) of the Prevention of Corruption Act.                       The<\/p>\n
sentence of imprisonment was ordered to run concurrently.<\/p>\n
      2. The case of the prosecution sought to be proved against the<\/p>\n
accused before the trial court was that while the accused was working<\/p>\n
as Village Officer of Payyambally village,                 Wayanad       District, he<\/p>\n
demanded and accepted an illegal gratification of Rs.300\/- from PW.1.<\/p>\n
the de facto complainant from the house of the accused for measuring<\/p>\n
his land and for preparing its SMC report and sketch for obtaining<\/p>\n
Pattayam, that at that time he again demanded a further bribe of<\/p>\n
Rs.5000\/- from PW.1 for the same purpose and in pursuance of the<\/p>\n
said demand, he demanded and accepted Rs.500\/- from PW.1 as<\/p>\n
Crl.A.34\/02                            2<\/span><\/p>\n
gratification other than illegal remuneration for the same purpose on<\/p>\n
June 6, 1997 from his office, while he was caught red-handed and the<\/p>\n
tainted currency notes MO.1 series were recovered from him and that<\/p>\n
the accused has thereby committed the offences punishable under<\/p>\n
sec.7 of the Prevention of Corruption Act of 1988. It was also alleged<\/p>\n
that by the above said illegal act of the accused, he, by corrupt or<\/p>\n
illegal means or otherwise abusing his official position as a public<\/p>\n
servant, obtained for himself a pecuniary advantage to the extent of<\/p>\n
Rs.800\/- and that thereby committed offence punishable under sec.13<\/p>\n
(1)(d) and 13(2) of the Prevention of Corruption Act of 1988.<\/p>\n
       3. The accused on appearance before the trial court pleaded not<\/p>\n
guilty to the charge under secs.7     and   13(1)(d) and 13(2) of the<\/p>\n
Prevention of Corruption Act of 1988. PWs.1 to 10 were examined and<\/p>\n
Exts.P1 to P19 were marked on the side of the prosecution.          The<\/p>\n
prosecution has also produced M.O.1 series to M.O.6.     PW.1 is the de<\/p>\n
facto complainant. He disowned Ext.P3, the complaint given by him to<\/p>\n
the Vigilance Dy.S.P.,   PW.9.     PW.2 is the then Additional District<\/p>\n
Officer, Economics and Statistics Department, Kalpetta. He is an<\/p>\n
independent official witness to the trap. PW.3 is the special Village<\/p>\n
Officer of Payyambally Village. PW.4 was the then Deputy Collector,<\/p>\n
Land    Tribunal,  Ambalavayal.       PW.5   is  the    then  Tahsildar,<\/p>\n
Mananthawady      Taluk   under    whom   Payyambally    Village Office<\/p>\n
Crl.A.34\/02                            3<\/span><\/p>\n
functioned.   PW.6 is the then Sub Registrar, Mananthawady who<\/p>\n
produced Ext.P14 the certified copy of title deed of PW.1 over the<\/p>\n
property.   PW.7 is the then Assistant Commissioner, Land Revenue<\/p>\n
Commissionerate, Thiruvananthapuram, who proved Ext.P15, the order<\/p>\n
of sanction.   Pw.9 is the trap laying officer.   PW.8 is the Inspector<\/p>\n
attached to VACB, Wayanad, who conducted investigation. PW.10 is<\/p>\n
the successor-in-office of PW.9 who laid the charge. When questioned<\/p>\n
under sec.313 of Cr.P.C. the accused denied having committed any<\/p>\n
offence.   His case was that the tainted currency notices were thrust<\/p>\n
into his pocket by PW.1, the de facto complainant and that as he has<\/p>\n
registered a case against one Ammini for illegal cutting of rosewood<\/p>\n
tree from Government land, one Thankachan, brother of Ammini, in<\/p>\n
collusion with PW.1 foisted this case against him.         No defence<\/p>\n
evidence was adduced.\n<\/p>\n
      4. The lower court on an appreciation of evidence found the<\/p>\n
appellant\/accused guilty of the offences punishable under secs.7 and<\/p>\n
13(1)(d) read with sec.13(2) of the Prevention of Corruption Act of<\/p>\n
1988, convicted him thereunder and sentenced him as aforesaid. The<\/p>\n
accused has challenged his conviction and sentence in this appeal.<\/p>\n
      5. Heard the learned counsel for the revision petitioner and the<\/p>\n
learned Public Prosecutor.\n<\/p>\n
      6. The following points arise for consideration:-<\/p>\n
Crl.A.34\/02                            4<\/span><\/p>\n
             I.  Whether the accused is a public servant as defined<\/p>\n
             under sec.2(c) of Prevention of Corruption Act of 1988?<\/p>\n
             II. Whether the order of sanction Ext.P15 sanctioning<\/p>\n
             prosecution against the accused is legal and valid?<\/p>\n
             III. Whether the prosecution has proved that the accused<\/p>\n
             demanded and accepted a bribe of Rs.300\/- from PW.1<\/p>\n
             from his house in April 1997 and demanded a further bribe<\/p>\n
             of Rs.5000\/- from PW.1 as a motive or reward            for<\/p>\n
             measuring the land for PW.1 and for preparing its SMC<\/p>\n
             report and sketch for obtaining Pattayam.<\/p>\n
             IV. Whether the prosecution has proved that the accused<\/p>\n
             demanded and accepted a bribe of Rs.500\/- from PW.1 for<\/p>\n
             the same purpose from his office on June 6, 1997?<\/p>\n
             V. Whether the conviction of the appellant by the lower<\/p>\n
             court under secs.7 and 13(1)(d) read with 13(2) of the<\/p>\n
             Prevention of Corruption Act, 1988 can be sustained?<\/p>\n
             VI. Whether the sentence imposed is excessive or unduly<\/p>\n
             harsh?\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Points I and II<\/p>\n
      7. It is not disputed and proved by the evidence adduced by the<\/p>\n
prosecution especially by Ext.P13, copy of the proceedings        of the<\/p>\n
District Collector, Wayanad, dated 27.5.1996 whereunder the accused<\/p>\n
Crl.A.34\/02                            5<\/span><\/p>\n
was transferred and posted as Village Officer, Payyambally. Ext.P12<\/p>\n
the joining report dated 23.8.2996, Ext.P6 the attendance register of<\/p>\n
Payyambally Village Office, and Ext.P15     the sanction order issued by<\/p>\n
the   Commissioner    of   Land    Revenue,   Thiruvananthapuram      for<\/p>\n
prosecuting the accused that during the relevant period the accused<\/p>\n
was working as Village Officer, Payyambally. Therefore he is a ‘public<\/p>\n
servant’ as defined under sec.2(c) of Prevention of Corruption Act of<\/p>\n
1988. The finding of the lower court on this point is confirmed.<\/p>\n
      8. Ext.P15 is the order of sanction issued by the Commissioner<\/p>\n
of Land Revenue, Thiruvananthapuram, sanctioning prosecution<\/p>\n
against the accused, the validity of which is not seriously disputed in<\/p>\n
this appeal and which is also proved by PW.7, the Assistant<\/p>\n
Commissioner.     Therefore I confirm the finding of the lower court that<\/p>\n
Ext.P15 order of sanction is legal and valid.\n<\/p>\n
Point No.III<\/p>\n
      9. PW.1, the de facto complainant, turned hostile and did not<\/p>\n
support the prosecution.    The case of Pw.1, de facto complainant, as<\/p>\n
revealed from Ext.P3, the F.I. Statement in short is that his 50 cents of<\/p>\n
land in payyambally village in re-survey was shown as belonging to<\/p>\n
Thrissilery Devaswom, that to establish his right over the same he<\/p>\n
required Pattayam for which SMC sketch and report prepared by the<\/p>\n
Village Officer is necessary, that for that purpose he handed over an<\/p>\n
Crl.A.34\/02                            6<\/span><\/p>\n
application form from the Tribunal with copies of his title deed and<\/p>\n
revenue receipts in April 1997 to the accused from his house, that at<\/p>\n
that time the accused demanded and accepted Rs.300\/- from PW.1 as<\/p>\n
illegal gratification for meeting the expenses, that the accused<\/p>\n
expressed his dissatisfaction and demanded a further            bribe of<\/p>\n
Rs.5000\/- which on the request of PW.1 was agreed upon to be paid in<\/p>\n
instalments with the first instalment of Rs.500\/- to be paid at his office<\/p>\n
in the morning of June 6, 1997 and that as PW.1 was not willing to pay<\/p>\n
the bribe he met PW.9, the then Dy.S.P., Vigilance, Wayanad and gave<\/p>\n
Ext.P3 complaint. But as PW.1 he testified that the accused never<\/p>\n
demanded      bribe either in April 1997 or on the date of the trap.<\/p>\n
Therefore the prosecution has failed to prove that in April 1997 the<\/p>\n
accused demanded and accepted a bribe of Rs.300\/- from PW.1 for the<\/p>\n
purpose of measuring his land and preparing sketch and that at that<\/p>\n
time he demanded a further bribe of Rs.5000\/-.        The finding of the<\/p>\n
lower court on this point is confirmed.\n<\/p>\n
Point Nos.IV and V<\/p>\n
      10. The next point to be considered is whether the accused has<\/p>\n
demanded and accepted a bribe of Rs.500\/- from his office on June 6,<\/p>\n
1997 for the purpose of measuring his land and preparing SMC sketch<\/p>\n
and report for obtaining Pattayam and accepted the same.        Counsel<\/p>\n
for the revision petitioner argued that as PW.1 turned hostile and as<\/p>\n
Crl.A.34\/02                           7<\/span><\/p>\n
there is no evidence for the demand of alleged bribe by the accused,<\/p>\n
the prosecution has not succeeded in establishing its case.          The<\/p>\n
Public Prosecutor appearing for the prosecution has argued that there<\/p>\n
is sufficient legal and acceptable evidence to prove that the accused<\/p>\n
demanded and accepted a bribe of Rs.500\/- from PW.1 on June 6,<\/p>\n
1997 from his office.    As regards the acceptance of bribe, there is ,<\/p>\n
in my view, unassailable evidence for recovery of the tainted currency<\/p>\n
notes from the accused.\n<\/p>\n
      11.     PW.9 is the trap laying officer. He recovered the trap<\/p>\n
money from the accused. He testified before the trial court thus: On<\/p>\n
June 6, 1997 Pw.1 came to his office and gave Ext.P3 F.I. Statement<\/p>\n
stating that the accused has demanded and accepted a bribe of<\/p>\n
Rs.300\/- in April 1997 for measuring the land of PW.1 and preparing<\/p>\n
the sketch and that he further demanded a bribe of Rs.5000\/-, out of<\/p>\n
which Rs.500\/- has to be paid on June 6, 1997. He registered the<\/p>\n
FIR Ext.P3(a) and arranged for a trap with the assistance of PW.2 and<\/p>\n
CW.3, two Government Officials. PW.1 produced the trap money, ten<\/p>\n
currency notes of Rs.50\/- each, MO.1 series.    PW.9 prepared Ext.P5<\/p>\n
mahazar in the presence of the witnesses and treated MO.1 series<\/p>\n
currency notes with phenolphthalein powder.          He returned the<\/p>\n
currency notes to PW.1 with a direction to handover the same to the<\/p>\n
accused if demanded.     After complying with the legal formalities they<\/p>\n
Crl.A.34\/02                            8<\/span><\/p>\n
proceeded to the office of the accused.   On reaching the office of the<\/p>\n
accused, he sent PW.1 along with a constable to the office room of the<\/p>\n
accused. The constable waited outside and PW.1 went inside. A few<\/p>\n
minutes later, on receiving the signal from PW.1, the trap party rushed<\/p>\n
to the office room of the accused.      PW.9 disclosed his identity and<\/p>\n
questioned the accused whether he had received any money from<\/p>\n
PW.1. The accused got bewildered and took out a bundle of currency<\/p>\n
notes from his pocket and placed it on the table.       Phenolphthalein<\/p>\n
test on his right hand and on the currency notes proved positive. On<\/p>\n
examining the currency notes it was found that MO.1 series currency<\/p>\n
notes were placed inside a Rs.100\/- note, MO.3. Phenolphthalein test<\/p>\n
conducted on MO.3    also found to be positive.   Thereafter the house<\/p>\n
of the accused was searched.\n<\/p>\n
      12. PW.9 was seen elaborately cross-examined by the defence<\/p>\n
counsel. No serious discrepancies or inconsistencies were brought out<\/p>\n
during his cross-examination. When cross-examined he asserted that<\/p>\n
PW.1 came to his office and gave Ext.P3 statement which he has truly<\/p>\n
and correctly recorded, that PW.1 told him that the accused demanded<\/p>\n
and accepted a bribe of Rs.300\/- in April 1997 from his house for<\/p>\n
preparing SMC sketch and plan, that accused further demanded a<\/p>\n
bribe of Rs.5000\/- and of which Rs.500\/- has to be paid on June 6,<\/p>\n
1997. There is nothing to show that he has any enmity towards the<\/p>\n
Crl.A.34\/02                            9<\/span><\/p>\n
accused. His evidence is fully supported by PW.2, the independent<\/p>\n
official witness to the trap. Therefore the lower court is perfectly right<\/p>\n
in believing his evidence that PW.1 told him that the accused<\/p>\n
demanded and accepted a bribe of Rs.300\/- in April 1997 and that<\/p>\n
accused further demanded a bribe of Rs.5000\/- out of which Rs.500\/-<\/p>\n
has to be paid on June 6, 1997 from his office and that subsequently<\/p>\n
the trap money was recovered from the accused.\n<\/p>\n
       13. PW.2, the independent official witness to the trap, supported<\/p>\n
Pw.9 on all material particulars.    He is the then Additional District<\/p>\n
Officer, Economics and Statistics, Kalpetta.      He gave a consistent<\/p>\n
version regarding the pre-trap formalities conducted in the office of<\/p>\n
PW.9 and the laying of trap. He would say that on seeing the trap<\/p>\n
team, accused took out the MO.1 series currency notes from his<\/p>\n
pocket and placed it on the table.         Cross-examination was not<\/p>\n
successful in eliciting any discrepancy or defect in his version which is<\/p>\n
fully in accordance with that of PW.9. He has no pre-acquaintance<\/p>\n
with the accused or any enmity towards the accused.         He is a truly<\/p>\n
and independent witness.         Therefore the lower court is right in<\/p>\n
accepting his evidence.\n<\/p>\n
       14.   The next question for consideration is whether the version<\/p>\n
of the accused that PW.1 thrust the MO.1 series currency notes into<\/p>\n
the pocket of the accused can be believed or not. For several reasons<\/p>\n
Crl.A.34\/02                              10<\/span><\/p>\n
I am not inclined to accept the above story of the accused.        Firstly,<\/p>\n
the MO.1 series currency notes were found inside a one hundred rupee<\/p>\n
note, MO.3. It is unlikely that by thrusting the currency notes into the<\/p>\n
pocket, the said currency notes will get inside the MO.3 currency note.<\/p>\n
Secondly, such a case was developed in the course of the trial. He did<\/p>\n
not take such a plea at the time of trap. Lastly, the story put forward<\/p>\n
by the accused is, in my view, an improbable one.           Therefore the<\/p>\n
lower court is perfectly right in rejecting the said story put forward by<\/p>\n
the accused.    In my view, the accused put forward such a story only<\/p>\n
to escape from liability.\n<\/p>\n
      15. The next point to be considered is whether the evidence<\/p>\n
referred to in the foregoing    is sufficient to hold that the prosecution<\/p>\n
has succeeded in establishing the offence charged against the accused.<\/p>\n
On the other hand, the question is whether the presumption under<\/p>\n
sec.20 of the Prevention of Corruption Act, 1988 is available for the<\/p>\n
prosecution.     Counsel for the accused argued that PW.1\/de facto<\/p>\n
complainant turned hostile and stated that the accused never<\/p>\n
demanded any bribe, that there is no evidence of demand of the bribe<\/p>\n
by the accused and that therefore       the presumption under sec.20 of<\/p>\n
the Prevention of Corruption Act cannot be raised in this case. I am<\/p>\n
unable to agree.     In M.Narasinga Rao v. State of Andhra Pradesh<\/p>\n
(AIR 2001 SC 318)           the Apex Court has held that once the<\/p>\n
Crl.A.34\/02                            11<\/span><\/p>\n
prosecution has established that the     gratification is paid and the<\/p>\n
accused has accepted the same, the presumption under sec.20 of the<\/p>\n
Prevention of Corruption Act can be raised.   In Narasinga Rao’s case,<\/p>\n
the de facto complainant and an independent witness turned hostile<\/p>\n
and did not support the prosecution. Even then the Apex Court has<\/p>\n
raised a presumption under sec.20 of the Prevention of Corruption<\/p>\n
Act, 1988 and observed that        the condition for drawing a legal<\/p>\n
presumption under sec.20 is that during trial it should be proved that<\/p>\n
the accused has accepted or agreed to accept any gratification.       In<\/p>\n
the present case I have found that the prosecution has succeeded in<\/p>\n
proving that the accused has accepted the bribe.         That being so,<\/p>\n
the contention of the accused that as PW.1, the de facto complainant<\/p>\n
did not support the prosecution, the presumption under sec.20 of the<\/p>\n
Prevention of Corruption Act cannot be raised, has only to be rejected.<\/p>\n
      16. It is proved by the evidence of PW.9, Dy.S.P. and PW.2, the<\/p>\n
official witness to the trap, that P.W.1 has paid the gratification and<\/p>\n
the accused has accepted the same.             I have found that the<\/p>\n
explanation offered by the accused that PW.1 forcibly thrust the<\/p>\n
currency notes into the pocket of the accused is not a probable one.<\/p>\n
That being so, the presumption under sec.20 of the Prevention of<\/p>\n
Corruption Act is available for the prosecution.        That apart, the<\/p>\n
demand is implicit in the entire affair.  Therefore, in the light of the<\/p>\n
Crl.A.34\/02                             12<\/span><\/p>\n
principles laid down in the above decision and from the proved facts in<\/p>\n
the case, it can be legitimately presumed that the accused has<\/p>\n
demanded and accepted an illegal gratification of Rs.500\/- from PW.1<\/p>\n
on June 6, 1997 from his office as a motive or reward for measuring<\/p>\n
his land and preparing SMC report and sketch.         Therefore I hold that<\/p>\n
there is legally acceptable evidence sufficient to make out an offence<\/p>\n
under sec.7 of the Prevention of Corruption Act, 1988. That being so,<\/p>\n
in my view the trial court is perfectly justified in convicting the accused<\/p>\n
under sec.7 of the Prevention of Corruption Act. The trial court is also<\/p>\n
correct in convicting the accused under secs.7 and 13(1)(d) read with<\/p>\n
sec.13(2) of the Prevention of Corruption Act of 1988 as he had<\/p>\n
obtained a pecuniary advantage to the extent of Rs.500\/- while he was<\/p>\n
holding the position as a public servant.        Therefore, I confirm the<\/p>\n
conviction of the appellant\/accused under secs.7 and 13(1)(d) read<\/p>\n
with sec.13(2) of Prevention of Corruption Act, 1988.<\/p>\n
Point No.VI<\/p>\n
      17. As regards the sentence, the trial court imposed a sentence<\/p>\n
of rigorous imprisonment for two years under each count and a fine of<\/p>\n
Rs.5000\/- under sec. 13(1)(d) read with sec.13(2) of the Prevention<\/p>\n
of Corruption Act of 1988. The incident occurred in the year 1997.<\/p>\n
The amount involved is only Rs.500\/-.           Counsel for the appellant<\/p>\n
submitted that the appellant is aged 60 and is now dismissed from<\/p>\n
Crl.A.34\/02                           13<\/span><\/p>\n
service.    Taking into consideration all these facts, I feel that the<\/p>\n
substantive sentence imposed by the trial court can be reduced to<\/p>\n
rigorous imprisonment for one year.          The sentence of fine is<\/p>\n
maintained.\n<\/p>\n
      In the result the revision petition is allowed in part.     The<\/p>\n
conviction of the revision petitioner under  secs.7 and 13(1)(d) read<\/p>\n
with sec.13(2) of the Prevention of Corruption Act of 1988 is<\/p>\n
confirmed.    The substantive sentence imposed by the trial court is<\/p>\n
reduced to rigorous imprisonment for one year under each count.<\/p>\n
The sentence of fine imposed by the trial court is maintained.     His<\/p>\n
bail bonds are cancelled.  The accused shall surrender before the trial<\/p>\n
court on or before 30.1.2010 to receive his sentence.<\/p>\n
                                           P.Q. BARKATH ALI, JUDGE<\/p>\n
mt\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Cyril Joseph vs State Of Kerala on 21 December, 2009 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 […]<\/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-66317","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nCyril Joseph vs State Of Kerala on 21 December, 2009 - 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\/cyril-joseph-vs-state-of-kerala-on-21-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cyril Joseph vs State Of Kerala on 21 December, 2009 - 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