Kerala High Court
Sivakumar vs The Superintendent Of Police on 5 August, 2025
2025:KER:58500
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947
CRL.MC NO. 6594 OF 2025
CRIME NO.2/2013 OF VACB, THIRUVANANTHAPURAM, Thiruvananthapuram
CC NO.17 OF 2018 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE),THIRUVANANTHAPURAM
PETITIONER/2ND ACCUSED:
SIVAKUMAR, AGED 42 YEARS,
SON OF LATE S.ARUMUGHAM, RESIDING AT DRS HOUSE,
KONNAVILAKATH, PAZHAKUTTY (P.O), NEDUMANGAD,
THIRUVANANTHAPURAM DISTRICT, FORMERLY WORKING AS L.D
CLERK, VENGANOOR GRAMA PANCHAYATH, NEYYATTINKARA,
PIN - 695561.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.G.RAJAGOPAL (KUMMANAM)
SRI.R.JAYAKRISHNAN
SHRI.AJAY T.S.
RESPONDENTS/COMPLAINANT AND STATE:
1 THE SUPERINTENDENT OF POLICE
VIGILANCE & ANTI CORRUPTION BUREAU, SOUTHERN RANGE,
THIRUVANANTHAPURAM, PIN - 695010.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
SPECIAL PUBLIC PROSECUTOR, VACB SRI RAJESH.A,
SENIOR PUBLIC PROSECUTOR, VACB SMT.REKHA.S
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
25.07.2025, THE COURT ON 05.08.2025 PASSED THE FOLLOWING:
2025:KER:58500
Crl.M.C.No.6594/2025 - 2 -
"C.R"
A.BADHARUDEEN, J.
-----------------------------
Crl.M.(C) No.6594 of 2025
------------------------------
Dated this the 5th day of August, 2025.
ORDER
This Criminal Miscellaneous Case has been filed by the 2 nd
accused in C.C.No.17 of 2018 on the files of the Enquiry Commissioner
and Special Judge (Vigilance), Thiruvananthapuram arising out of Crime
No.2 of 2013 of VACB, Thiruvananthapuram. The prayer in this petition
is to quash Annexure 2 final report, Annexure 3 court charge and all
consequential proceedings in the above case.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the records.
3. In a nut shell the case of the prosecution is that Smt.
Sasikumari, Mother of complainant M. Nishant Rajan filed five
applications Viz., 3376/12, 3377/12, 3378/12, 3379/12, 3380/12 before
Venganoor Grama Panchayat authorities on 01-06-2012 for regularizing
and assigning building number to the sheds in her property in
2025:KER:58500
Sy.No.305/15-2, 305/15-3, 304/10-1 of Venganoor Village. The 1st
accused Sri. Sreekumaran Nair (Late), Former Panchayat Secretary,
Venganoor Grama Panchayat and the 2nd accused Sri.Sivakumar, Former
L.D.Clerk of Venganoor Grama Panchayat, both being public servants,
while discharging duties in their official capacity was to process and take
appropriate action on the above said applications. Instead, the 2nd accused
in connivance with the 1st accused, demanded Rs.2000/- for himself and
Rs.10,000/- for the 1st accused from the complainant as illegal
gratification, for the discharge of their official duty of assigning building
number on 11-01-2013. Subsequently on 17-01-2013 at around 19.30 Hrs.
The 1st accused voluntarily accepted Rs.10,000/- and the 2nd accused
voluntarily accepted Rs.2,000/- from the complainant as illegal
gratification at house No.IX/438 owned by the complainant's mother, at
Kovalam and thereby both accused committed offences U/s 7, 13(1)(d) r/w
13(2) of under the Prevention of Corruption Act, 1988 (`PC Act' for short)
and Section 34 of the Indian Penal Code.
4. While challenging the final report as well as the charge
framed by the Special Court for the above said offences, the point argued
2025:KER:58500
by the learned counsel for the petitioner is that as per the prosecution
records nothing available to see any demand of bribe by the 2 nd accused,
though there is an allegation that the 2nd accused accepted Rs.10,000/- as
bribe for and on behalf of the 1st accused. Therefore, the entire prosecution
would not yield and in such circumstances, the petition is liable to succeed.
5. Per contra, it is submitted by the learned Public
Prosecutor that, in the instant case, going by the statement of the defacto
complainant it is emphatically clear that there was demand for bribe by the
1st accused and the 2nd accused, and accordingly the same was accepted and
in such a case whether the essential ingredients such as demand and
acceptance are proved or not, is a matter of evidence. It is also submitted
that in this case, in fact, the trial court on perusal of the prosecution records
framed charge for the said offences finding that the matter would require
trial and in such a case seeking quashment of the final report and court
charge could not be considered and thus the petition would require
dismissal.
6. Having considered the rival submissions, the point raised
by the learned counsel for the petitioner to seek quashment of the final
2025:KER:58500
report, court charge and consequential further proceedings is that there was
no demand of bribe by the 2nd accused, a most essential ingredient to find
him guilty under Section 7 r/w 13(1)(d) of the PC Act. In this connection
it is relevant to refer to the FIS given by Nishant Rajan, who lodged a
complaint on 15.01.2013 to the 1st respondent, a copy of the same is
produced as Annexure 1. According to the defacto complainant, he had
constructed a hotel-cum-resort in his 69 cent of property and he
approached Venganoor Grama Panchayat for giving building number on
01.06.2012. Thereafter he visited the Panchayat office 2 to 3 times and
demanded numbering of the building. But no number was assigned and no
steps were taken in this regard. Accordingly his father informed that
Panchayat had been denying numbering for getting money. Soon the
complainant approached Venganoor Grama Panchayat, where he was
familiar with Sivan Sir (who is the accused herein). Later, Sivan Sir
informed him that, in order to assign number to the building, the Panchayat
Secretary would inspect the building and the amount would be conveyed
thereafter. The further statement of the defacto complaint is that thereafter
the Panchayat Secretary along with Sivan Sir inspected the building at 2
2025:KER:58500
p.m on 10.01.2013 and later Sivan Sir informed the complainant that
Rs.15,000/- was to be given to Panchayat Secretary (A1) for numbering
the building. On 11.01.2013, when the complainant telephoned Sivan Sir
at 5 p.m, when he was at the railway station to go to Kollam, then the 2 nd
accused demanded Rs.10,000/- to be paid to the Secretary and he would
inform the place and time for payment. Thereafter, Sivan Sir agreed to
accept the amount on 11.01.2013 and it was thereafter he demanded a
party, including hot items. Subsequently he accepted the bribe. Prima
facie, bribe amount of Rs.10,000/- was demanded and accepted by the
petitioner/2nd accused on the premise of giving the same to the 1st
accused. Thus the ingredients to attract offences are well made out, prima
facie. It is relevant to note that in the decision reported in Neeraj Dutta Vs
State, (AIR 2023 SC 330), a 5 Bench of the Apex Court considered the
essentials to be considered when the demand contemplated under Section 7
of the P.C Act is in question and held in paragraph 68 as under:
"68. What emerges from the aforesaid discussion is summarised
as under:
(a) Proof of demand and acceptance of illegal gratification
by a public servant as a fact in issue by the prosecution is a sine
2025:KER:58500
qua non in order to establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal gratification
and the subsequent acceptance as a matter of fact. This fact in
issue can be proved either by direct evidence which can be in the
nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand
and acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
(d) In order to prove the fact in issue, namely, the demand
and acceptance of illegal gratification by the public servant, the
following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public servant and
the latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of
the Act. In such a case, there need not be a prior demand by
the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal
gratification emanates from the public servant. This is an
offence under Section 13 (1)(d)(i) and (ii) of the Act.
2025:KER:58500
iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
respectively have to be proved by the prosecution as a fact
in issue. In other words, mere acceptance or receipt of an
illegal gratification without anything more would not make
it an offence under Section 7 or Section 13 (1)(d), (i) and
(ii) respectively of the Act. Therefore, under Section 7 of the
Act, in order to bring home the offence, there must be an
offer which emanates from the bribe giver which is accepted
by the public servant which would make it an offence.
Similarly, a prior demand by the public servant when
accepted by the bribe giver and in turn there is a payment
made which is received by the public servant, would be an
offence of obtainment under Section 13 (1)(d) and (i) and
(ii) of the Act.
(e) The presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification may be made
by a court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the basis
of the material on record, the Court has the discretion to raise a
presumption of fact while considering whether the fact of demand
has been proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the accused and in the
absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or
is unavailable to let in his evidence during trial, demand of illegal
gratification can be proved by letting in the evidence of any other
2025:KER:58500
witness who can again let in evidence, either orally or by
documentary evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate nor does it result
in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the court to raise a
presumption that the illegal gratification was for the purpose of a
motive or reward as mentioned in the said Section. The said
presumption has to be raised by the court as a legal presumption or
a presumption in law. Of course, the said presumption is also
subject to rebuttal. Section 20 does not apply to Section 13(1) (d)
and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the
Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is
discretionary in nature."
7. Thus the legal position as regards to the essentials under
Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act is extracted above.
Regarding the mode of proof of demand of bribe, if there is an offer to pay
by the bribe giver without there being any demand from the public
servant and the latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of the Act. In such
a case, there need not be a prior demand by the public servant. The
2025:KER:58500
presumption of fact with regard to the demand and acceptance or
obtainment of an illegal gratification may be made by a court of law by
way of an inference only when the foundational facts have been proved by
relevant oral and documentary evidence and not in the absence thereof. On
the basis of the material on record, the Court has the discretion to raise a
presumption of fact while considering whether the fact of demand has been
proved by the prosecution or not. Of course, a presumption of fact is
subject to rebuttal by the accused and in the absence of rebuttal
presumption stands. The mode of proof of demand and acceptance is
either orally or by documentary evidence or the prosecution can prove the
case by circumstantial evidence. The trial does not abate nor does it result
in an order of acquittal of the accused public servant. In so far as Section 7
of the Act is concerned, on the proof of the facts in issue, Section 20
mandates the court to raise a presumption that the illegal gratification was
for the purpose of a motive or reward as mentioned in the said Section.
The said presumption has to be raised by the court as a legal presumption
or a presumption in law.
8. On reading the prosecution allegation with reference to
2025:KER:58500
the judgment of the Apex Court, the plea of the petitioner to quash the
final report, court charge and further proceedings could not succeed as the
prosecution materials would show demand and acceptance of bribe by the
accused in this case, prima facie, and in consequence thereof this petition
would necessarily fail. Accordingly this petition is dismissed.
9. The interim order granted stands vacated.
10. It is specifically made clear that the observations in this
order are for the purpose of deciding prayers in this petition and have no
binding effect when considering the matter on merits by the trial court, on
adducing evidence.
The Registry is directed to forward a copy of this order to the
jurisdictional court for compliance and further steps.
Sd/-
A.BADHARUDEEN, JUDGE
rtr/
2025:KER:58500
PETITIONER'S ANNEXURES
Annexure 1 TRUE COPY OF THE FIRST INFORMATION REPORT
DATED 15.01.2013.
Annexure 2 CERTIFIED COPY OF THE FINAL REPORT DATED
15.12.2018 ALONG WITH THE SEIZURE MAHAZAR AND
DEPOSITION OF THE WITNESSES.
Annexure 3 CERTIFIED COPY OF THE COURT CHARGE IN C.C
NO.17/2018 ON THE FILES OF THE COURT OF THE
ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM DATED 08.10.2024.
