Kerala High Court
Bharat Raj Meena vs Central Bureau Of Investigation on 24 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 591 OF 2016
AGAINST THE JUDGMENT DATED 31.05.2016 IN CC NO.2 OF 2014 OF
SPECIAL JUDGE (SPE/CBI) - III, ERNAKULAM
APPELLANT/ACCUSED:
BHARAT RAJ MEENA
S/O.SRI.RAMDEV MEENA, AGED 43 YEARS, RESIDING AT
WARD NO.12, KHANPOLE GATE, NAINWA, DISTRICT-BUNDI
(RAJASTHAN)-323801.
BY ADVS.
ABRAHAM P.MEACHINKARA
P.MURALEEDHARAN(K/209/1984)
ALEXANDER K.C.(K/1057/2021)
MARGARET MAUREEN DROSE(K/1328/2019)
JAYAKRISHNAN P.R.(K/1659/2020)
THOMAS GEORGE(K/1723/2021)
RESPONDENT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION
ACB, KOCHI, ERNAKULAM, BY STANDING COUNSEL, HIGH
COURT OF KERALA, PIN-682031.
BY ADVS.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.591/2016
-:2:-
"C.R."
J U D G M E N T
This appeal has been preferred by the accused in CC
No.2/2014 on the file of Special Judge, (SPE/CBI) III Ernakulam (for
short, 'the trial court') challenging the judgment dated 31/5/2016
convicting and sentencing him under Sections 7 and 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the
PC Act').
2. The appellant Bharat Raj Meena was working as
Divisional Security Commissioner, Railway Protection Force,
Palakkad in 2005. One Sri.P.P.Nandakumar (PW6), Clerk in DSC
Office, Palakkad preferred a complaint alleging demand of bribe
of `10,000/- by the appellant through PW2 Anantha Narayanan,
Constable/RPF Coimbatore, for getting complainant's posting in
Palakkad area following his medical decategorization from RPF
and subsequent absorption in alternative post as clerk in
Personnel Branch under DRM Office, Palakkad. Based on the said
complaint, the Superintendent of Police, CBI/ACB, Kochi
registered FIR vide No.RC19(A)/2005/KER/CBI under Sections 7
and 12 of the PC Act against the appellant and PW2 on 4/8/2005
and entrusted the investigation of the case to PW8. PW7
Nandakumaran Nair, Dy.S.P., CBI/ACB, Kochi, and his team laid a
trap on the same day itself and at the instance of Dy.S.P./Trap
Laying Officer aforesaid, tainted money of bribe was handed over
by PW6 to PW2 which together with some other alleged bribe
money in an envelope and personal cash and diaries were
recovered from PW2 who was then arrested by CBI team.
Thereafter, PW8, the investigation officer, after the investigation
of CBI case RC19(A)/2005/CBI/KER dated 4/8/2005 registered
based on the original complaint dated 4/8/2005 of PW6, filed
three separate final reports on 31/7/2006 bearing
Nos.04/SK/19/A/05/KER, 05/SK/19/A/05/KER and 06/SK/19/
A/05/KER, before the Court of Special Judge-II, CBI, Kochi for the
prosecution of the accused under Sections 7 and 13(1)(d),
Section 7 and 13(1)(d) and Sections 7 and 13(1)(a) of the PC Act
respectively following tender of pardon of the principal accused
PW2 and one Abdul Gafoor from the Court of Chief Judicial
Magistrate, Ernakulam. The final report Nos.04/SK/19/A/05/KER
and 05/SK/19/A/05/KER against the appellant were then taken up
as CC No.2/2014 and CC No.3/2014 respectively by the trial court.
The third final report No.06/SK/19/A/05/KER was quadrifurcated
into four cases by the trial court under Section 219 of Cr.P.C.
while framing the charges. The said cases after splitting up were
then taken up as CC No.4/2014, CC No.2/2015, CC No.3/2015 and
CC 4/2015 for trial. Thereafter, the trial court framed charges
against the appellant in all the above six cases on 26/10/2015.
The trial in all cases commenced simultaneously.
3. In CC No.2/2014 which is the subject matter of this
appeal, PWs 1 to 8 were examined and Exts.P1 to P18 series were
marked and MOs1 to 9 were identified on the side of the
prosecution. DWs1 to 4 were examined and Exts.D1 to D25 were
examined on the side of the defence. Exts.X1 to X1(b1) were
marked as court exhibits. After trial, the appellant was found
guilty, and he was convicted for the offence under Sections 7 and
13(2) r/w 13(1)(d) of the PC Act. He was sentenced to undergo
rigorous imprisonment for two years and to pay a fine of `1 lakh,
in default to suffer simple imprisonment for six months for the
offence under Section 13(2) r/w 13(1)(d) of PC Act, 1988. No
separate sentence was awarded for the offence under Section 7
of the PC Act. Challenging the said conviction and sentence, the
appellant preferred this appeal.
4. I have heard Dr.Abraham P.Meachinkara, the learned
counsel for the appellant and Sri.Sreelal N.Warrier, the learned
standing counsel for the CBI.
5. The learned counsel for the appellant impeached the
finding of the trial court on appreciation of evidence and resultant
finding as to the guilt. The learned counsel submitted that there
is absolutely no legal evidence to prove the demand and
acceptance of bribe by the appellant from PW6 to constitute the
offence under Sections 7 and 13(1)(d) of the PC Act. The learned
counsel further submitted that the evidence of PWs2, 4, 6 and 7
is not at all reliable and insufficient to connect the appellant with
the crime. The counsel also submitted that without any proof of
receipt of bribe by the appellant, the trial court wrongly drew
presumption under Section 20 against the appellant. There is no
valid sanction to prosecute the appellant, added the counsel. On
the other hand, the learned Standing Counsel supported the
findings and verdict handed down by the trial court and
submitted that the prosecution has succeeded in proving the
case beyond reasonable doubt.
6. First, I shall deal with the contention regarding lack of
sanction. The learned counsel for the appellant submitted that
Ext.P1 sanction to prosecute the appellant was not proved in
accordance with law. According to the learned counsel, the
sanction for prosecution was accorded by the sanctioning
authority without considering the relevant documents and
applying its mind. The counsel further submitted that the
sanctioning authority was not examined to prove Ext.P1 sanction
order.
7. Section 19(1) of the PC Act says that no court shall
take cognizance of an offence punishable under Sections 7, 10,
11, 13 and 15 alleged to have been committed by a public
servant, except with the previous sanction of the competent
authority referred to in sub-sections (a), (b) and (c). The question
of sanction is of paramount importance for protecting a public
servant who has acted in good faith while performing his duties.
The purpose of obtaining sanction is to see that the public
servant is not entangled in false and frivolous cases. The grant of
sanction is not a mere formality but a solemn act which affords
protection to the government servant against frivolous
prosecution. All the relevant records and materials for the grant
of sanction must be made available to the sanctioning authority,
which must undertake complete and conscious scrutiny of those
records and materials independently applying its mind before
deciding whether to grant sanction or not. The order of granting
or declining sanction should reflect that the sanctioning authority
was furnished with all relevant facts and materials and applied its
mind to all those materials. The validity of the sanction would
therefore depend upon the materials placed before the
sanctioning authority and on the application of mind by the
sanctioning authority to those materials and facts of the case. On
going through the materials and facts, the sanctioning authority
has to apply its own independent mind to generate genuine
satisfaction whether the prosecution has to be sanctioned or not
When the order granting or declining sanction is challenged
before a court, the court must determine whether there has been
an application of mind on the part of the sanctioning authority
concerned with the materials placed before it. The order of
sanction must ex facie disclose that the sanctioning authority had
considered the facts and all relevant materials placed before it
(See Central Bureau of Investigation v. Ashok Kumar Aggarwal
(2014) 14 SCC 295 and Mansukhlal Vithaldas Chauhan v. State of
Gujarat 1997 KHC 1065).
8. The appellant is a Class I officer under the Central
Government. So, the sanction order has to be issued under Article
77(2) of the Constitution of India. The Minister of Railways is the
competent authority for granting sanction for prosecution of the
accused on behalf of the President of India. The formal order of
the prosecution has to be signed and issued by the designated
authority of the concerned Ministry. Here, PW1, the Director of the
Ministry of Railway, New Delhi has signed the sanction order,
Ext.P1. Ext.P1 would show that the sanction was accorded by the
Minister of Railways. Ext.D16 series is the copy of the file
maintained at the Railway Board relating to the sanction granted
to prosecute the appellant. DW4 was the Joint Director of
Vigilance, Recruitment and Security (R&SC). He was examined to
prove Ext.D16 series. Relying on the evidence of DW4 and the
recital in sub paragraph No.1 of paragraph 8 of Ext.D16 series,
the learned counsel for the appellant argued that important
documents including the FIR were not forwarded to the Ministry
of Railways at the time when the sanction for prosecution was
sought. Since the material documents pertaining to the case were
not forwarded to the sanctioning authority, Ext.P1 sanction order
is vitiated, submitted the counsel. DW4 indeed deposed that 52
documents including FIR were not there when the file was
transmitted to the Chief Vigilance Commissioner (CVC) for
sanction. However, the recital in page 8 of Ext.D16 series would
show that the Minister of Railways has made an endorsement
that he has accorded sanction after going through the
investigation report of the case No.RC19(A)2005/CBI/KER as well
as all other relevant records. At any rate, the original case file
contains copies of all the relevant records in respect of the case.
On going through the entire evidence of DW4 and perusing
Ext.D16 series, the trial court found that there is every reason to
believe that even if the documents were not there at the time
when DW4 forwarded the file to the CVC, the documents were
there at the time when the Ministry of Railways perused the
same. On analysis of the evidence, the trial court found that the
Minister of Railways has accorded sanction after considering the
facts of the case and perusing the entire documents. I see no
reason to take a different view.
9. So far as the contention raised by the appellant
regarding the non-examination of the Minister of Railways who
granted the prosecution sanction is concerned, PW1 who was
examined to prove the sanction was the Director of the Ministry
of Railway and he signed the sanction as per the Rules of
Business. The Supreme Court of India in State of Madhya Pradesh
v. Jiyalal (AIR 2010 SC 1451) has held that there is no requirement
to examine the authority who gave the sanction to prove the
sanction order. In State through Inspector of Police A.P. v.
K.Narasimhachary (AIR 2006 SC 628), it was held that an order of
valid sanction can be proved either by producing the original
sanction which itself contains the facts constituting the offence
and the grounds of satisfaction or by adducing evidence aliunde
to show that the facts were placed before the sanctioning
authority and the satisfaction arrived at by it. It is evident from
Ext.P1, Ext.D16 series and the evidence of PW1 and DW4 that the
sanctioning authority has applied its mind to the facts of the case
and the materials placed before it. That apart, Section 19(3)(a) of
the PC Act says that no finding, sentence or order passed by a
Special Judge shall be reversed or altered by a court in appeal,
confirmation or revision on the ground of the absence of, or any
error, omission or irregularity in, the sanction required under sub-
section (1) unless, in the opinion of that court, a failure of justice
has in fact been occasioned thereby. There is no proof, much less
a case for the appellant that a failure of justice has been caused
to him. Hence, the submission of the learned counsel for the
appellant that there is no valid sanction for prosecution must fail.
10. As stated already, the prosecution version is that the
appellant while working as Divisional Security Commissioner,
Railway Protection Force, Palakkad, on 2/8/2005 demanded an
amount of `10,000/- from PW6 through PW2 for effecting his
posting at Palakkad and based on Ext.P12 complaint filed by PW6,
PW7 laid the trap on 4/8/2005 and PW2 was caught red-handed
while accepting the bribe amount of `5,000/-. Subsequently, the
learned Chief Judicial Magistrate granted pardon to PW2, and he
turned approver. It is not in dispute that the appellant was
working as Divisional Security Commissioner, Railway Protection
Force, Palakkad at the time of the alleged incident. It has also
come out in evidence that PW2 was working under him at DSC's
office, Palakkad during the period of the alleged incident. The
appellant has raised a contention that PW2 was a Constable
attached to RPF, Coimbatore and not a staff of the DSC's office,
Palakkad at the time of the alleged incident. PW2 gave evidence
that from July 1991 to 2003, he worked as Constable, RPF,
Palakkad and even though he was transferred to Coimbatore in
2003, he continued working in the DSC's office, Palakkad on a
working arrangement. Ext.D15 muster roll coupled with the
evidence of PW2 clearly establishes that even though PW2 was
transferred from Palakkad to Coimbatore in the month of October,
2003, he continued to work at Palakkad on working arrangement.
It has also come out in evidence that as per Ext.P11 order dated
15/7/2005, PW6 was posted in the DSC's Office, Palakkad. The
prosecution case is that the appellant demanded `10,000/- as
illegal gratification from PW6 through PW2 as a consideration for
effecting the said posting.
11. The prosecution mainly relied on, and the trial court
accepted the evidence of PWs2, 4, 6 and 7 to prove its case and
to fix the culpability on the accused.
12. PW6 was the decoy witness and the de facto
complainant. The crime was registered based on Ext.P12 given by
him. He was working as a Constable in SIB (Special Intelligence
Branch), RPF, Palakkad in the year 2004. He sustained dislocation
of his right shoulder and he was medically decategorized. He was
absorbed in a supernumerary post of Constable in the SIB and
afterwards, he was shifted to DSC's office in the same cadre to
assist clerical staff. He underwent a suitability test for alternate
appointment as clerk and the committee which was constituted
to ascertain his suitability reported his suitability for the post. He
was alternatively appointed as Personnel Branch Clerk on
13/7/2005. He deposed that he approached the appellant and
requested for getting a posting at Palakkad. The appellant agreed
to help him and directed him to meet PW2. Accordingly, he met
PW2 who told him that if the appellant had said so, he might have
been expecting something. PW2 further told him that he would
contact the appellant and inform him. As evident from Ext.P11,
on 15/7/2005, PW6 was posted as Personnel Branch Clerk in
DSC's office. PW6 further deposed that on 2/8/2005, PW2 met
him and told him that the appellant demanded `10,000/- as
reward for his posting in the DSC's office. When he expressed his
difficulty in paying the amount, PW2 asked him to meet the
appellant in his chamber. Accordingly, on 2/8/2005, when he met
the appellant in his chamber and expressed his inability to pay
the amount, the appellant told him that `5,000/- should be paid
as the first instalment and the balance amount of `5,000/- shall
be paid within ten days. Since he was not willing to pay the
money demanded, he reported the matter to PW7 who arranged
the trap. Thereafter, as instructed by PW7, he contacted PW2
over the phone on 4/8/2005 and PW2 made arrangements to
meet the appellant at his chamber at 4.30 p.m. As instructed by
PW7, he entrusted ten 500 rupees notes (MO1 series) to PW7 as
per Ext.P8 Entrustment Mahazar. MO1 series were smeared with
phenolphthalein powder and given to him with instruction to hand
them over to the appellant on demand. PW7 handed over a
mobile phone to him and he was directed to switch on the phone
and to keep it in his pocket. He then went to DSC's office along
with PW7 and two independent witnesses, PW4 Aboobacker and
one Mohandas. At about 6.00 p.m., he got an appointment to
meet the appellant and accordingly he met him at the chamber.
He informed the appellant that he brought the money. The
appellant then directed him to entrust the money with PW2. Then
the appellant along with him came out of the chamber. PW6
further deposed that the appellant got into his official car and
went away. He entrusted the cover containing MO1 series notes
to PW2 who was standing near the car. He received it and kept it
in the pocket of his pants. Then he informed the matter to PW7
over the phone. PW7 and the team rushed to the spot and took
PW2 to the office. PW7 asked PW2 to take the money and he
took the cover given by PW6 containing MO1 series notes and
handed it over to PW7. After that, the right hand of PW2 was
dipped in sodium carbonate solution. The hand as well as the
solution turned to pink colour.
13. PW4 was the witness who accompanied PW7 and
team. He gave evidence in tune with the evidence tendered by
PW6. His evidence would disclose that he was summoned to be a
witness to the trap and accordingly he met PW7 at a lodge at
about 2.30 p.m. His evidence would further disclose that he was a
witness to the entire pre-trap transaction as deposed by PW6 and
thereafter PW7 asked him to accompany him and PW6 to the
DSC's office and observe the transaction. He specifically deposed
that he witnessed PW6 handing over money to PW2. His evidence
would further show that after PW6 gave the signal to PW7 as
instructed, PW7 along with him approached PW2 and took him
into the office and his fingers were dipped into the sodium
carbonate solution and colour change was noticed. He identified
MO4 as the bottle containing the solution, his signature on the
labels pasted on the bottles and MO1 series notes recovered from
PW2.
14. PW7 was the Dy.S.P who registered Ext.P14 FIR on the
basis of Ext.P12 complaint given by PW6, laid the trap and
recovered MO1 series trap money. He deposed that after the
registration of the FIR, as instructed by him, PW6 produced MO1
currency notes, he then applied phenolphthalein powder to it and
prepared Ext.P8 mahazar. He entrusted MO1 series currency
notes with PW6 and gave specific instructions to him that those
should be given to the appellant on demand. After that, he, PW4,
Mohandas and the team went to the DSC's Office, Palakkad with a
direction to give the signal when the appellant accepts money
from PW6. PW7 gave a mobile phone to PW6 with instruction to
dial his mobile number before he enters the room of the appellant
so as to find out the transaction taking place between PW6 and
the appellant. After 15 minutes, he received a call on his mobile
phone from the mobile phone he gave to PW6. He proceeded
immediately to the office of the DSC where he found PW6
standing outside the office. PW6 told him that he met the
appellant who demanded money and directed him to meet PW2
which he did. He further stated that he gave MO1 series bribe
money to PW2. Thereafter, PW7 along with the trap team met
PW2 who, on interrogation, admitted the receipt of the bribe
amount from PW6 as instructed by the appellant. MO1 currency
notes found in a cover kept in the right-side pant pocket of PW2
were seized as per Ext.P4 mahazar. Thereafter, a clear solution of
sodium carbonate was prepared in a glass tumbler and PW2 was
asked to dip his right-hand fingers into the solution. On doing so,
the hand as well as the solution turned pink colour.
15. PW2 gave evidence in tune with the evidence given by
PW6. He deposed that on 13/7/2005, PW6 informed him that he
was declared medically decategorized and he wanted a clerical
posting in the DSC's office in Palakkad for which he met the
appellant. PW6 told him that the appellant informed him that his
decision would be conveyed to him and the appellant asked him
to meet him. According to PW2, he told PW6 that the appellant
might be expecting some money and that he would inform PW6
after contacting the appellant. He further deposed that when he
met the appellant, he told him to inform PW6 that he should pay
`10,000/- for getting a clerical posting in the DSC's office,
Palakkad and he met PW6 and informed the same on 2/8/2005.
When PW6 expressed his financial stringency to him, he told him
to inform the matter to the appellant directly. On 3/8/2005, PW6
informed him that he met the appellant, and expressed his
financial constraints, but the appellant was not convinced.
According to PW2, thereafter he met the appellant who confirmed
that PW6 had met him and expressed his financial difficulty. The
appellant told him that he had already informed PW6 that the
amount should be paid in two instalments and the first instalment
of `5,000/- should be paid immediately and the balance amount
should be paid within ten days. PW2 stated that on the same day,
PW6 told the same to him. PW2 further stated that on 4/8/2005,
PW6 called him over phone and informed him that money would
be ready in noon. Then he instructed PW6 to give the money to
the appellant directly. However, PW6 insisted his presence also
when he gives the money. On 4/8/2005 in the evening, he along
with PW6 went to the office of the appellant to meet him. He met
the appellant who asked him to tell PW6 to wait. Thereafter at
6.00 p.m., he went to the chamber of the appellant along with
PW6. When he came out of the chamber, PW6 was inside the
chamber. After 10 to 15 minutes, both the appellant and PW6
came out of the chamber and the appellant left the place in his
car. PW6 then came to him, gave him a cover stating that the
appellant directed him to entrust the same with him and asked
him to take the same to the residence of the appellant. He
accepted the cover and kept it in his pocket and when he was
about to leave, the CBI officials came to him, apprehended him,
took him to DSC's office and the cover as well as the MO1 series
inside it were seized from his possession. When questioned, he
told CBI officials that MO1 series was the money given by PW6 to
hand over to the appellant for effecting his transfer.
16. Though PWs2, 4, 6 and 7 were cross-examined in
length, nothing tangible could be extracted from their evidence
to discredit their testimony. PW4 who witnessed the trap was an
independent witness. The appellant has no case that he had
enmity towards him. Similarly, PW7 who laid the trap is an official
witness. The appellant has also no case that he had any enmity
towards him. True, PW2 being an approver, his evidence cannot
be relied on without corroboration. The combined effect of
Section 133 and Illustration (b) to Section 114 of the Indian
Evidence Act is that though the conviction of an accused on the
testimony of an accomplice is not illegal, the court, as a matter of
practice will not ordinarily accept his evidence without
corroboration in material particulars. The nature and extent of
corroboration required, of course, must necessarily vary with the
circumstances of each case and the particular circumstances of
the offence alleged in each case. There need not be independent
confirmation of every material circumstance in the sense that the
independent evidence in the case apart from the evidence of the
accomplice, in itself, be sufficient to sustain conviction. What is
required is there must be some additional evidence rendering
probable that the evidence of the accomplice is true, and it is
reasonably safe to act upon it to hold that the accused has
committed the crime. As stated already, the evidence of PW2 has
been corroborated in material particulars by the evidence of PW6
and PW4. The learned counsel for the appellant vehemently
argued that there was no concrete independent evidence to
prove the demand and acceptance. It is not the law that there
should be direct evidence in all cases to prove the demand and
acceptance. It can be proved by acceptable circumstantial
evidence as well. [See Neeraj Dutta v. State (Govt. of NCT of
Delhi) (2023) 4 SCC 731]. Moreover, there is direct evidence in
this case to prove the demand and acceptance. PW6, the decoy
witness, deposed that he directly approached the appellant and
requested a posting at Palakkad and the appellant agreed to help
him and told him to meet PW2 and when he met PW2, he told
him that if the appellant had said so, he might have been
expecting something. He further deposed that on 2/8/2005 again
he met the appellant personally in his chamber and expressed his
inability to pay the amount as directed by PW2 and then the
appellant told him that `5,000/- should be paid as the first
instalment and the balance amount of `5,000/- shall be paid
within 10 days. Thus, there is evidence to show that the demand
for bribe was made by the appellant directly to PW6. PW6 also
deposed that on 4/8/2005 at 6.00 p.m., when he met the
appellant at his chamber and informed him that he brought the
money, the appellant directed him to entrust the money with
PW2 and accordingly he entrusted the money to PW2. Thus, there
is evidence to prove the acceptance of bribe by PW2 from PW6
on behalf of the appellant. The bribe doesn't need to be accepted
by the accused himself to attract the offence under Section 7 of
the PC Act. It is sufficient if there is evidence to show that the
person who accepted the bribe was for and on behalf of the
accused. Thus, the demand and acceptance of illegal gratification
have amply been proved by the prosecution through the
evidence of PW2, 4, 6 and 7. The evidence regarding the positive
result of the phenolphthalein test on the hand of PW2 and MO1
currency notes is strong circumstance to suggest that PW2
accepted and handled the tainted notes for and on behalf of the
appellant.
17. The learned counsel for the appellant vehemently
argued that there are umpteen circumstances pointing to the
innocence of the appellant. It is submitted that PW6 was a person
working in a clerical cadre and the appellant has neither the
authority nor role or anything to do with his transfer/posting
request. Relying on the evidence of PW3, PW5 and DW2, the
counsel submitted that the Senior DPO was the competent
authority for the absorption of medically decategorized staff for
the alternate appointment and their posting and transfer thereof
as clerk. However, during the cross-examination, when PW2 was
asked as to whether the appellant could suggest the posting of
staff in the DSC's office, he deposed that he can request for filling
up the vacancies. It is pertinent to note that PW6 was working in
the DSC's office, Palakkad at the time of Ext.P10 posting order
and he was relieved from the DSC's office on 13/7/2005. So, it is
quite natural for PW6 to request the appellant to help him. That
apart, he may not be aware of the lack of authority on the part of
the appellant concerning his posting in the DSC's office. So, the
fact that DW2 was the authority to give posting in the personnel
branch alone is not a ground to discard the prosecution version.
What is material is the acceptance of gratification by inducing a
belief or by holding out that he would render assistance to the
bribe giver as rightly held by the trial court. It is immaterial
whether the public servant who received the gratification does
not intend to do the official acts. The Supreme Court in Chaturdas
Bhagwandas Patel v. State of Gujarat (AIR 1976 SC 1497) while
dealing with Section 161 of IPC, which was repealed by the
coming into force of the PC Act, held that the said section does
not require that the public servant must be in a position to do the
official act, favour or service at the time of the demand or receipt
of the gratification. The learned counsel further submitted that
before 13/7/2005, PW6 was working in the appellant's office at
Palakkad itself and, as such, PW6 did not need to request for a
posting in Palakkad as he was working in Palakkad. Ext.P10 order
dated 12/7/2005 would show that PW6 was posted in the
personnel branch of Southern Railway, Palakkad. According to the
prosecution, it was on 13/7/2005 that PW6 met the appellant and
requested his help for getting a posting in the clerical cadre in
the DSC's office, Palakkad and accordingly on 15/7/2005, he was
posted in the DSC's office, Palakkad as per Ext.P11 order dated
15/7/2005. Thus, it is clear that PW6 wanted a posting in the
clerical cadre in the DSC's office, Palakkad itself and that was
why he met the appellant and requested his help. The learned
counsel for the appellant further submitted that if the appellant
was to be trapped, there would be no hindrance and the money
could have been handed over to him at his residence where he
was staying alone instead of giving the money at his chamber.
The said argument is far-fetched and unsupported by any logic or
reason. The time and place chosen by the receiver and giver of
the bribe cannot be doubted on the ground that they could have
chosen some other better place or time. The learned counsel next
submitted that the better electronic evidence in the form of
admitted recorded telephonic conversation between PW6 and
PW2 vide Ext.P8 Entrustment Mahazar and the conversation
between PW6 and PW7 recorded by PW7 at the DSC's office were
available, but, the prosecution wilfully withheld the said material
piece of evidence and hence, the trial court ought to have drawn
adverse inference against the prosecution under Section 114(g)
of the Evidence Act. The trial court in paragraphs 149 and 150 of
the judgment has given reason for not drawing adverse
inferences on account of the non-production of those electronic
records. PW7 has categorically deposed during the cross-
examination that the recorded conversation between PW6 and
PW2 covered by Ext.P8 Entrustment Mahazar was recorded only
for the purpose of verification of the complaint. He has also
stated that the telephone call made by PW6 to him at the DSC's
office during the trap proceedings which was recorded by him
was not produced since it was not audible. When the substantive
evidence of PW2 and PW6 is available to prove the trap as well as
the demand and acceptance, the non-production of the electronic
evidence is insignificant as rightly held by the trial court. I see no
reason to take a different view. The learned counsel also
highlighted certain contradictions in the evidence relating to the
time on which PW4 met PW7 and also the commencement and
conclusion of the trap proceedings. The said contradictions are
minor and do not affect the fabric of the prosecution case. Thus,
none of the circumstances pointed out by the learned counsel for
the appellant would in any way help the appellant.
18. Admittedly, the appellant was a "public servant" as
defined under Section 2(c) of the PC Act working as the Divisional
Security Officer, Railway Protection Force, Palakkad at the time of
the alleged incident. As stated already, the evidence of PWs2, 4,
6 and 7 proved the demand and acceptance of the bribe by the
appellant from PW6 through PW2 as well as its recovery. Once
the prosecution has established that the gratification in any form
has been paid or accepted by a public servant, it can be
presumed invoking presumption under Section 20 of the PC Act,
unless the contrary is proved that the gratification was paid or
accepted as a motive or reward to do or forbear from doing an
official act in a charge under Section 7 of the PC Act. Similarly,
once it is proved that the appellant accepted the tainted money
without any protest, either by himself or through his agent, it can
be presumed that he obtained the money within the meaning of
Section 13(1)(d) of the PC Act.
The evidence on record, the sequence of events, and the
circumstances narrated above clearly prove that the appellant
demanded and accepted `5,000/- from PW6 through PW2 as
illegal gratification by abusing his official position as a public
servant and availed pecuniary advantage by adopting corrupt
and illegal means. Thus, the trial court was justified in convicting
the appellant for the offence under Sections 7 and 13(2) r/w 13(1)
(d) of the PC Act. The sentence imposed by the trial court also
appears to be reasonable. There is no merit in the appeal and
accordingly it is dismissed confirming the conviction and
sentence.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
