P.A.Hariharan vs State Of Kerala
2021 Latest Caselaw 11255 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

   THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                     CRL.A.No.1743 OF 2005

  CC 26/2001 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL
                         JUDGE,THRISSUR


APPELLANT/ACCUSED:

             P.A.HARIHARAN
             FORMER SUPERINTENDENTING ENGINEER, KERALA WATER
             AUTHORITY, PUBLIC HEALTH CIRCLE, TRISSUR.

             BY ADVS.
             SRI.B.RAMAN PILLAI
             SRI.ANIL K.MOHAMMED
             SRI.R.ANIL
             SRI.DELVIN JACOB MATHEWS
             SRI.GEORGE PHILIP
             SRI.RAJU RADHAKRISHNAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,, ERNAKULAM.


             SRI B JAYASURYA-SR PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-
2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 Crl.A.No.1743/2005
                                  2




                                                             "CR"

                    R.NARAYANA PISHARADI, J
                    ************************
                       Crl.A.No.1743 of 2005
             ---------------------------------------------
                Dated this the 8th day of April, 2021


                           JUDGMENT

The appellant is the sole accused in the case C.C.No.26 of

2001 on the file of the Court of the Enquiry Commissioner and

Special Judge, Thrissur.

2. The appellant shall be hereinafter referred to as the

accused. He stands convicted and sentenced by the trial court for

the offence punishable under Section 7 of the Prevention of

Corruption Act, 1988 (for short "the Act").

3. The prosecution case can be briefly stated as follows:

The accused was, at the relevant point of time, working as the

Superintendent Engineer in the Public Health Circle Office of the

Kerala Water Authority in Thrissur. PW2 Jose, the de facto Crl.A.No.1743/2005

complainant, had submitted an application in the office of the

accused to obtain licence to work as a contractor. Though PW2

went to the office of the accused several times, he did not get

the licence. Some other contractors told him that he would get

licence only if he paid bribe to the accused. On 13.04.2000, at

about 10.30 hours, PW2 met the accused at his office and

requested him to issue licence to him. The accused then

demanded Rs.1000/- from PW2 for granting him the licence.

When PW2 told the accused that he had then no money with him,

the accused asked him to come next week with the money. On

18.04.2000, at 08.45 hours, PW2 gave Ext.P2 statement to the

Deputy Superintendent of Police, Vigilance and Anti-Corruption

Bureau, Thrissur regarding the demand for money made by the

accused. On the basis of the above statement, the Deputy

Superintendent of Police (PW11) registered Ext.P2(b) F.I.R

against the accused under Section 7 of the Act. PW2 produced

currency notes worth Rs.1000/- before the Dy.S.P who got them

treated with phenolphthalein powder and entrusted the same to

PW2 with necessary instructions. The trap team, including Crl.A.No.1743/2005

independent witnesses, reached near the office of the accused at

about 11.10 hours on 18.04.2000. Then PW2 was sent to meet

the accused and to give him the bribe amount on demand. At

about 11.27 hours, the Dy.S.P (PW11) got signal regarding

acceptance of bribe by the accused. He entered the office room

of the accused with witnesses and asked the accused whether he

had received money from PW2. The accused took the tainted

currency notes and placed them on the table. The

phenolphthalein test conducted proved positive. The Dy.S.P

seized the currency notes and arrested the accused.

4. On completion of investigation, sanction for prosecution

was obtained and charge-sheet was filed against the accused for

the offences punishable under Sections 7 and 13(1)(d) read with

13(2) of the Act. The trial court framed charge against the

accused for the aforesaid offences. The accused pleaded not

guilty.

5. The prosecution examined PW1 to PW11 and marked

Exts.P1 to P15 documents and MO1 to MO6 material objects.

DW1 to DW5 were examined and Exts.D1 to D10 documents Crl.A.No.1743/2005

were marked on the side of the accused.

6. The trial court found the accused not guilty of the offence

punishable under Section 13(1)(d) read with 13(2) of the Act and

acquitted him of that offence. The trial court found the accused

guilty of the offence punishable under Section 7 of the Act and

convicted him thereunder and sentenced him to undergo simple

imprisonment for a period of six months.

7. The accused has preferred this appeal challenging the

conviction entered against and the sentence imposed on him by

the trial court. The State has not filed any appeal challenging the

acquittal of the accused of the offence punishable under Section

13(1)(d) read with 13(2) of the Act.

8. Heard the learned counsel for the appellant and the

learned Public Prosecutor. Perused the records.

9. Learned counsel for the appellant has contended that the

evidence on record is deficient to prove the demand, acceptance

and recovery of any amount of illegal gratification as alleged by

the prosecution. Learned counsel has contended that, there is

absolutely no evidence to prove the demand for bribe allegedly Crl.A.No.1743/2005

made by the accused and therefore, the recovery of money, if

any, from the accused is wholly inconsequential to prove the

offence under Section 7 of the Act. It is also contended that, the

prosecution having failed to establish any demand for bribe as

alleged, no presumption under Section 20 of the Act could be

raised against the accused.

10. Learned Public Prosecutor has submitted that the

evidence adduced by the prosecution is cogent and convincing to

prove the demand, receipt and recovery of money and that the

essential ingredients of the offence under Section 7 of the Act

have been amply proved by the prosecution.

11. Section 7 of the Act (as unamended) states that,

whoever, being, or expecting to be a public servant, accepts or

obtains or agrees to accept or attempts to obtain from any

person, for himself or for any other person, any gratification

whatever, other than legal remuneration, as a motive or reward

for doing or forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official functions, favour

or disfavour to any person or for rendering or attempting to Crl.A.No.1743/2005

render any service or disservice to any person, with the Central

Government or any State Government or Parliament or the

Legislature of any State or with any local authority, corporation

or Government company referred to in Clause (c) of Section 2, or

with any public servant, whether named or otherwise, shall be

punishable with imprisonment which shall be not less than three

years but which may extend to seven years and shall also be

liable to fine.

12. Demand of illegal gratification is sine qua non to

constitute the offence under Section 7 of the Act. Mere recovery

of tainted currency notes from the possession of the accused

cannot constitute the offence under that provision, unless it is

proved beyond all reasonable doubt that the accused voluntarily

accepted the money knowing it to be bribe (See N.Vijayakumar

v. State of Tamil Nadu : AIR 2021 SC 766, C.M.Sharma v.

State of A.P : AIR 2011 SC 608 and B. Jayaraj v. State of

A.P : (2014) 13 SCC 55). Mere receipt of amount by the

accused is not sufficient to fasten the guilt, in the absence of any

evidence with regard to demand and acceptance of the amount Crl.A.No.1743/2005

as illegal gratification. But, the burden rests on the accused to

displace the statutory presumption under Section 20 of the Act,

by bringing on record evidence, either direct or circumstantial, to

establish with reasonable probability, that the money was

accepted by him, other than as a motive or reward as referred to

in Section 7 of the Act (See Mukut Bihari v. State of

Rajasthan : AIR 2012 SC 2270 and State of Punjab v.

Madan Mohan Lal Verma : AIR 2013 SC 3368). Mere receipt

of any amount allegedly by way of illegal gratification or recovery

thereof, dehors the proof of demand, ipso facto, would not be

sufficient to bring home the charge under Section 7 of the Act.

As a corollary, failure of the prosecution to prove the demand for

illegal gratification would be fatal and mere recovery of the

amount from the person accused of the offence under Section 7

of the Act would not entail his conviction thereunder (See P.

Satyanarayana Murthy v. District Inspector of Police : AIR

2015 SC 3549). For arriving at the conclusion as to whether all

the ingredients of the offence under Section 7 of the Act, viz.,

demand, acceptance and recovery of the amount of illegal Crl.A.No.1743/2005

gratification have been satisfied or not, the court must take into

consideration the facts and circumstances brought on record in

their entirety (See State of Maharashtra v. Dnyaneshwar

Laxman Rao Wankhede : (2009) 15 SCC 200).

13. PW2, the de facto complainant, is the key witness in

this case. His evidence forms the sheet anchor of the prosecution

case. But, he did not fully support the case of the prosecution

and he was declared hostile.

14. According to the prosecution case, demand for money

was made by the accused on two occasions. The first occasion

was when PW2 met the accused at his office on 13.04.2000. The

second occasion was on 18.04.2000 when PW2 gave him the

money.

15. PW2 has given evidence that he had submitted

application in the office of the accused for obtaining contractor's

licence. He would say that he had met the accused at his office

several times but the licence was not issued to him. He has

deposed that he was then convinced that he would get the

licence only if he gave bribe to the accused. He has given Crl.A.No.1743/2005

evidence that he met the accused on 13.04.2000 at his office and

then the accused told him that he should approach him in the

proper manner to get the licence. PW2 has categorically stated

that the accused did not demand any money from him. The

prosecution has not examined any other witness to prove

demand for money allegedly made by the accused on

13.04.2000. Therefore, there is absolutely no evidence to find

that the accused had made demand for bribe or money on

13.04.2000.

16. Further, the accused has got a plea that he was not

present in his office at 10.30 hours on 13.04.2000. His plea is

that he had gone to Karimpuzha on the morning of that day in

connection with official duties and that he came back to his office

only in the evening. He has also got a plea that, on the way to

Karimpuzha and back, he had visited the Division Office of the

Kerala Water Authority at Shornnur.

17. The driver of the accused was examined as DW4 to

prove the aforesaid plea. The relevant entry in Ext.D10 log book

of the official car used by the accused was also proved. DW5, an Crl.A.No.1743/2005

Assistant Engineer, who was working in the Division Office of the

Kerala Water Authority at Shornnur, also gave evidence regarding

the visit made by the accused in that office on 13.04.2000. The

trial court has accepted the evidence of these witnesses as

reliable and trustworthy. I find no reason to disagree with the

trial court in this regard.

18. The evidence of PW2 is that, when he went to the office

of the accused on 18.04.2000 and met him, he placed a cover

containing the tainted currency notes on the table before the

accused. He has not given any evidence that the accused had at

that time demanded money from him. He did not support the

prosecution case in so far as the demand for money by the

accused. The prosecution has not examined any other witness to

prove that it was pursuant to any demand made by the accused

that PW2 gave the money to the accused. The prosecution has no

case that any witness overheard the conversation between PW2

and the accused.

19. Thus, there is absolutely no evidence to find that the

accused had made any demand for bribe or money from PW2 on Crl.A.No.1743/2005

any day.

20. The evidence of PW2 is conspicuously silent with regard

to receipt or acceptance of money by the accused. The

prosecution case is that the accused received the money given by

PW2 and that he put it in the pocket of his shirt. However, PW2

has not given any evidence that the accused took the money

from the table and put it in his pocket. There is also no evidence

of any other witness to prove so. There was no shadow witness

present in the office room of the accused. There is absolutely no

evidence to prove that that the accused received or accepted the

money.

21. Law has always favoured the presence and importance

of a shadow witness in the trap party, not only to facilitate such

witness to see but also overhear what happens and how it

happens also (See Meena Balwant Hemke v. State of

Maharashtra : AIR 2000 SC 3377). In the instant case, there

was no shadow witness arranged to witness what happened

inside the office room of the accused or to overhear the Crl.A.No.1743/2005

conversation between PW2 and the accused.

22. Of course, there is reliable evidence regarding seizure of

the tainted currency notes from the possession of the accused.

One of the independent witnesses in the trap team was

examined as PW3. He has given evidence regarding the recovery

of the money. PW11 Dy.S.P has also given evidence in that

regard. There is no reason to reject the evidence of PW3 and

PW11 regarding the seizure of the money.

23. The mere fact that the complainant turned hostile to the

prosecution during trial would not be sufficient to discard the

prosecution case in its entirety (See Vinod Kumar v. State of

Punjab : AIR 2015 SC 1206). However, when there is no

evidence to prove demand for and acceptance of money,

conviction cannot be entered against the accused under Section

7 of the Act.

24. It is only on proof of acceptance of illegal gratification

that presumption can be drawn under Section 20 of the Act.

Unless there is proof of demand of illegal gratification, proof of Crl.A.No.1743/2005

acceptance will not follow (See Sunkanna v. State of A.P :

(2016) 1 SCC 713).

25. In Jayaraj (supra), a three-Judge Bench of the

Supreme Court has held as follows:

"In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P11) before LW - 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext.P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned Trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved.

The only other material available is the recovery Crl.A.No.1743/2005

of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. ...... Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent".

(emphasis supplied)

26. In Sejappa v. State : AIR 2016 SC 2045, the Apex

Court has held as follows:

"It is well settled that the initial burden of Crl.A.No.1743/2005

proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act".

27. The trial court reached a definite conclusion that PW2

submitted the application for obtaining licence in the office of the

accused only for the purpose of initiating a vigilance case against

the accused and it was done by him at the instance of some

contractors who had grudge against the accused. However, the

trial court found that the prosecution could prove acceptance of

money from PW2 by the accused and also the recovery of money

from the accused. The trial court found that, since the

prosecution could establish acceptance of illegal gratification by

the accused, the presumption under Section 20 of the Act would Crl.A.No.1743/2005

arise to fasten him with the liability for an offence under Section

7 of the Act.

28. The trial court heavily relied upon the statement

allegedly made by the accused to the Dy.S.P, admitting

acceptance of money from PW2, to find that the prosecution has

proved that the accused received illegal gratification. The trial

court relied upon the evidence of PW3 and PW11 to find that the

accused had admitted receipt of amount from PW2. But, the trial

court ignored the fact that the statement made by the accused to

the police officer during the course of investigation of the case is

not admissible in evidence in view of the embargo under Section

162 of the Code of Criminal Procedure, 1973 (for short 'the

Code') and Sections 25 and 26 of the Indian Evidence Act.

29. PW11 Dy.S.P has given evidence that, on getting

signal, he entered into the room of the accused with the

witnesses. He has deposed that he asked the accused whether he

received bribe from PW2. PW11 has given evidence that, the

accused replied that, PW2 took money from his pocket and

offered it to him and he (the accused) refused it but PW2 placed Crl.A.No.1743/2005

the money on the table and went out and then he (the accused)

took the money and put it in the pocket of his shirt. PW3 has also

given evidence regarding the above statement made by the

accused to PW11. Further, in Ext.P5 recovery mahazar, the

statement made by the accused to PW11 is extracted.

30. Section 25 of the Indian Evidence Act renders

inadmissible a confession made to a police officer. It declares that

no confession made to a police officer shall be proved as against

a person accused of any offence. Section 26 of the Evidence Act

provides that, no confession made by any person whilst he is in

the custody of a police officer, unless it be made in the immediate

presence of a Magistrate, shall be proved as against such person.

Therefore, the statement allegedly made by the accused to the

Dy.S.P, which amounts to a confession, cannot be proved against

the accused. It is pertinent here to note that the provision

contained in Section 27 of the Evidence Act has no application to

the facts of the case.

31. A confession must either admit in terms the offence, or

at any rate substantially all the facts which constitute the Crl.A.No.1743/2005

offence. An admission of a gravely incriminating fact, even a

conclusively incriminating fact, is not itself a confession. A

statement that contains self exculpatory matter cannot amount

to a confession, if the exculpatory statement is of some fact,

which if true, would negative the offence alleged to be confessed

(See Pakala Narayana Swami v. Emperor : AIR 1939 PC 47

and Palvinder Kaur v. State of Punjab : AIR 1952 SC 354 ).

32. Even assuming that the statement made by the accused

to PW11 Dy.S.P does not amount to a confession but only an

admission, even then it is not admissible by virtue of the

provision contained Section 162 of the Code.

33. In Maha Singh v. State : AIR 1976 SC 449, the

Supreme Court has held as follows:

"A question arose whether the statement of the accused before the Inspector admitting to have received the bribe was admissible in evidence. It is apparent from the evidence of the Inspector that these cases are investigated by the Anti Corruption Department which carries on its work on its own. On a complaint made to the Inspector he recorded the same and arranged the raid by Crl.A.No.1743/2005

noting each step taken thereafter in a regular manner. What has been done by the Inspector in this case in order to detect the accused while taking the bribe comes within the term 'investigation' under Section 4(1) of the Code of Criminal Procedure, 1898. The moment the Inspector had recorded the complaint with a view to take action to track the offender, whose name was not even known at that stage, and in this case proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code. Indeed the Inspector himself stated that he examined the witnesses under Section 161 Cr.P.C and completed the investigation. The fact that he had also later on forwarded the complaint for formal registration of the case at Lahori Fate police station does not do away with the character of the investigation already commenced by the Inspector on recording the complainant's statement disclosing a cognizable offence. Therefore, any statement made by the accused in answer to questions put by the Inspector is inadmissible under Section 162, Cr.P.C and neither the prosecution nor the accused can take advantage of these answers.

Crl.A.No.1743/2005

These are, therefore, excluded from consideration in this case by us".

(emphasis supplied)

34. A person who is named in the FIR, and therefore, the

accused in the eyes of law, can indeed be questioned by the

police officer. Even if such statement contains only an admission

but not confession, it being a statement under Section 161 of the

Code, it would immediately attract the bar under Section 162 of

the Code. Statement given under Section 161 of the Code, even

if relevant as an admission, would not be admissible in evidence.

Bar under Section 162 of the Code operates in regard to the

statement made to a police officer in between two points of time,

viz., from the beginning of the investigation till the termination of

the same (See Dipakbhai Jagdishchandra Patel v. State of

Gujarat : AIR 2019 SC 3363).

35. In the instant case, PW11 Dy.S.P had registered the

F.I.R in the case at 08.45 hours on 18.04.2000. The trap was laid

on the same day. PW11 himself conducted the investigation of

the case. Therefore, the statement allegedly made by the Crl.A.No.1743/2005

accused to the Dy.S.P is definitely a statement made in the

course of investigation of the case to the police officer who

conducted the investigation. The embargo contained in Section

162 of the Code has a wide sweep that no statement made by

any person to a police officer in the course of investigation shall

be used for any purpose except for the limited purpose

mentioned therein. The limited purpose envisaged in that

provision has no application to the facts of this case. Therefore,

the statement allegedly made by the accused to PW11 Dy.S.P is

not admissible in evidence and it cannot be proved against the

accused. It follows that there are no foundational facts

established by the prosecution to raise the presumption under

Section 20 of the Act.

36. To conclude, the prosecution failed to establish demand

for and acceptance of money by the accused. Therefore,

conviction entered against the accused by the trial court under

Section 7 of the Act cannot be sustained.

37. Consequently, the appeal is allowed. Conviction entered

against and the sentence imposed on the appellant/accused by Crl.A.No.1743/2005

the trial court under Section 7 of the Act are set aside. The

appellant/accused is found not guilty of the offence under Section

7 of the Act and he is acquitted of that offence. The bail bond

executed by him is cancelled and he is set at liberty.

(sd/-)

R.NARAYANA PISHARADI, JUDGE jsr