Kerala High Court
T.K. Thankappan, S/O. Late Kunjan vs State Of Kerala on 19 August, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 19TH DAY OF AUGUST 2025 / 28TH SRAVANA, 1947
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AGAINST THE JUDGMENT DATED 30.12.2008 IN CC NO.23 OF 2002 ON
THE FILES OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE
APPELLANT/ACCUSED No.1:
T.K. THANKAPPAN, S/O. LATE KUNJAN,
AGED 1 YEARS
THEVARAKKATTIL HOUSE, KOODAKULAM, RAMAPURAMALA,,
KOTTAYAM DISTRICT.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH THE DY.S.P. VIGILANCE AND ANTI CORRUPTION
BUREAU,PALAKKAD,, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF, KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
ADV.RAJESH.A SPL PP VACB,ADV REKHA.S SR PP VACB.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
19.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
A. BADHARUDEEN, J
============================
Crl. Appeal No. 250 of 2009
==============================
Dated 19th day of August 2025
JUDGMENT
The 1st accused in C.C.No.23 of 2002 on the files of the
Enquiry Commissioner and Special Judge, Kozhikode, has preferred
this Criminal Appeal under Section 374 of the Code of Criminal
Procedure (for short, 'CrPC.'), challenging conviction and sentence
imposed against him in the said case dated 30.12.2008. The
respondent is the Vigilance and Anti-Corruption Bureau (VACB),
represented by the learned Special Public Prosecutor.
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2. Heard the learned counsel for the 1st accused/appellant and
the learned Special Public Prosecutor. Perused the records of the
special court as well as the decisions placed by the learned Special
Public Prosecutor in detail.
3. The prosecution case is that the 1st and 2nd accused while
working as Secretary and Head Clerk respectively of Alanellur
Grama Panchayat and as such being public servants abused their
official position and as a sequel thereof and at 11 a.m on 12-12-2000,
at the office of the Alanellur Grama Panchayat, demanded illegal
gratification of Rs.1,000/- and Rs.250/- respectively, for themselves,
to give advance payment of Rs.25,000/- from the whole estimate
amount of Rs.1,00,000/- from the complainant, the Convener, who
was elected as per Peoples' Planning Programme for the
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improvement of Alungal - Kombamkallu road work, using funds
from the Government's Peoples' Planning Programme. Then they
reiterated the same demand on 15-12-2000 at the time of issuing the
cheque for Rs.25,000/- and in pursuance of the said demand they
received an amount of Rs.1,000/- and Rs.250/- respectively at 12.15
P.M on 22-12-2000 from the Complainant at the Alanellur Grama
Panchayat Office as a reward and illegal gratification for doing the
official act mentioned above and thereby, both of them have
committed the offences punishable under Sections 7 and 13(2) r/w
Section 13(1)(d) of the the Prevention of Corruption Act, 1988 (
'PC Act' for short hereafter).
4. When Final Report filed before the special court alleging
commission of the above-said offences, the special court proceeded
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with trial after finishing the pre-trial formalities. During trial, PWs 1
to 6 were examined, Exts.P1 to P18, and MOs1 to 18 were marked
from the side of the prosecution. After completion of the
prosecution evidence, the accused was questioned under Section
313(1)(b) of the CrPC, and an opportunity was given to him to
adduce defence evidence. DW1 was examined from the side of
defence. On appraisal of the evidence, the special court found that
accused Nos. 1 and 2, committed the said offences and accordingly,
they were sentenced as under:-
"The 1st accused to undergo Rigorous Imprisonment for
one year and to pay a fine of Rs.1,000/- and in default to
undergo Rigorous Imprisonment for three months, under
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Section 7 of the PC Act, 1988. The 1st accused is further
convicted and sentenced to undergo Rigorous
Imprisonment for two years and to pay a fine of
Rs.2,000/- and in default to undergo Rigorous
Imprisonment for three months, under Section 13(2) r/w
Section 13(1)(d) of the PC Act. The substantive sentences
shall run concurrently. Set off is allowed under Section
428 Cr.P.C. The 2nd accused is convicted and sentenced to
undergo Rigorous Imprisonment for six months and to
pay a fine of Rs.500/- and in default to undergo Rigorous
Imprisonment for two months, under Section 7 of the PC
Act. The 2nd accused is further convicted and sentenced to
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undergo Rigorous Imprisonment for one year and to pay a
fine of Rs.500/- and in default to undergo Rigorous
Imprisonment for two months, under Section 13(2) r/w
Section 13(1)(d) of the PC Act. The substantive sentences
shall run concurrently. Set off is allowed under Section
428 Cr.P.C."
5. While assailing the judgment of the special court, learned
counsel for the 1st accused/appellant argued that, in this case, the
investigation was conducted by the Inspector of Police and he had
no power to investigate the present case. Therefore, the
investigation is vitiated. It is argued further that, though sodium
carbonate solution with pink colour was alleged to be produced
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before the court during the time of evidence the same found to be
colourless and that is a point in favour of the accused to grant
benefit of doubt. Apart from that, the learned counsel for the 1st
accused/appellant argued that the evidence given by PW1 as
regards to demand and acceptance of bribe against the 1st accused
is not convincing or reliable. Thus, it is submitted on these
grounds, the special court verdict is liable to be interfered with to
record acquittal of the 1st accused.
6. Per contra, it is submitted by the learned Special Public
Prosecutor that, insofar as the contentions raised by the 1st
accused/appellant regarding the competence of the Inspector to
investigate this crime, proviso to Section 17 of the PC Act is
relevant. As per the proviso, State Government can authorize by
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general or special order to investigate a crime under the PC Act not
below the rank of a Sub Inspector. According to him, as early as
02nd March 1993, such a general order was passed by the
Government; therefore, this contention could not succeed.
7. In this connection, the learned Special Public Prosecutor
placed the decision of the Division Bench judgment of this Court
reported in 2000 KHC 311 Sankaran Kutty v. State of Kerala
reference to Paragraph No.8 where this Court considered the same
question in view of Notification No.12094/C1/88/Vig dated 02nd
March 1993 and held as under:-
"8. The operative portion of S.17 lays down that no Police
Officer below the rank of Deputy Superintendent of Police
or a Police Officer of an equivalent rank shall investigate
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any offence punishable under the Act without the order of
a Metropolitan Magistrate or a Magistrate of the First
Class, as a case may be, or make any arrest therefor
without a warrant. As per the first proviso to S.17, it is
provided that if a Police Officer now below the rank of
Inspector of Police is authorised by the State Government
on this behalf by the general or special order, he may
investigate without the order of a Metropolitan
Magistrate or the Magistrate of the First Class, as the
case may be, or make arrest therefor, without a warrant.
Therefore, as per the operative portion of S.17, any Police
Officer who is even below the rank of Inspector of Police
can be authorised by the Magistrate for investigation as
envisaged in that Section. The Parliament, in its wisdom
has conferred power on the State Government, as per the
first proviso to S.17, to empower Police Officers not below
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the rank of Inspector of Police, for investigation of the
offence under the Act. Thus, the first proviso to S.17 is not
in any way abridging or nullifying the operative portion
of S.17 of the Act. It is only in lawful exercise of the powers
conferred under the first proviso to S.17 that the State
Government has issued the statutory notification as per
Ext. P5 empowering the Police Officers not below the rank
of Inspector of Police for conducting the investigation.
8. Regarding the second point, the learned Special Public
Prosecutor placed decisions of this court reported in 2011 (4) KHC
411 Parameswaran Pillai R. (Dr.) v. State of Kerala with
reference to Paragraph No.15, and 2023 KHC 560 State of
Kerala v. P M Kunhappan reference to paragraph 14 to contend
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that colour change of solution is insignificant as the same would
occur because of chemical change.
9. In view of the rival arguments, questions arises for
consideration are:-
1. Whether the contention raised by the 1st
accused/appellant regarding incompetency of the
Inspector of Police to investigate this crime is sustainable?
2. Whether the trial court rightly entered into finding that
the 1st accused/appellant committed offence punishable
under Section 7 of the PC Act?
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3. Whether the trial court rightly entered into finding that
the 1st accused/appellant committed offence punishable
under Section 13(1)(d) r/w 13(2) of the PC Act?
4. Whether the verdict under challenge would require
interference?
5. The order to be passed?
Point No. 1:-
10. Chapter 4 of the PC Act 1988 deals with the investigation
of cases under the Act and it has been provided that no police
officer below the rank of a Deputy Superintendent of Police or a
police officer of equivalent rank is competent to investigate the
offence under the PC Act. At the same time, first proviso to
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Section 17 states that, if a police officer not below the rank of an
Inspector of Police is authorised by the State Government in this
behalf by general or special order, he may also investigate any such
offence without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make arrest
therefor without a warrant. Thus the proviso is clear on the point
that the State Government has the power to authorise a police officer
not below the rank of an Inspector of Police by general or special
order to investigate any of the offences under the PC Act and this
point was upheld as per the ratio in Sankarankutty's case (supra).
Since the State Government had issued Notification
No.12094/C1/88/Vig dated 02nd March 1993, in tune with the
first proviso of Section 17 authorising a police officer not below the
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rank of an Inspector of Police the investigation of this case
conducted by the Inspector of Police is perfectly in order. Therefore
the contention raised by the 1st accused otherwise highlighting
incompetency of the Investigating Officer would not sustain. Point
No.1 answered accordingly.
11. As regards to demand and acceptance of bribe, the
prosecution relied on the evidence of the complainant, who got
examined as PW1. PW-1 is a resident of Alanellur Grama
Panchayat, and he was the Convener of the improvement work of
Alungal Kombamkallu road. The Chairman of the Committee was
A.P. Mohammedali. As convener, he had executed an agreement
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before the Panchayat. For the purpose of disbursement of
Rs.25,000/- as advance payment, out of the estimate amount of
Rs.1,00,000/-, for that road work he had approached the accused at
11.00 am on 12-12-2000. Then the 1st accused had demanded
Rs.1,000/- for him and Rs.250/- for the 2nd accused for
disbursement of the advance amount. He stated that he was not
having any money with him and promised to pay the same after
encashment of the cheque, on 15-12-2000. On that day, when he
went to collect the cheque, both the accused reiterated the demand,
and after receipt of the cheque, he presented the same to the
Sub-Treasury, Mannarkkad. The treasury officials noted certain
objections in the cheque, and that was rectified by the 2nd accused
and he encashed the cheque on 16-12-2000. Since he was not
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willing to pay the bribe amount to the accused, he lodged Ext.P-1
complaint before the Dy.S.P., Vigilance and Anti-corruption
Bureau, Palakkad, at 10 a.m. on 22-12-2000. Subsequently, two
Government servants came before PW-5, the Dy.S.P. and they were
introduced to him and the facts of the case were narrated to them.
M.O-1 series and M.O-2 series currency notes were handed over to
PW-5. After demonstration of phenolphthalein test on a currency
note of Rs.10/-, M.O-1 series and M.O-2 series were put into his
pocket by a Police Constable as directed by PW-5 after smearing
phenolphthalein powder over the same. The production mahazar
Ext.P-2 was then prepared, and the trap party proceeded to
Alanellur Grama Panchayat Office. Then PW1 as well as a police
constable went to the office of the 1st accused and he apprised that
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the encashment of the cheque. The 2nd accused was there in the
room of A-1. Then, the 1st accused demanded the amount of
Rs.1,000/-, and PW-1 gave that amount of Rs.1,000/- (M.O-1
series) to the 1st accused. The 1st accused accepted M.O-1 series and
subsequently the 2nd accused demanded and accepted Rs.250/-
(M.O-2 series). After that PW-1 came out from the office room and
gave the pre-set signal to the Vigilance Officers. Thereupon PW-5
along with the witnesses and the Police Party entered into the office
room of the 1st accused. Afterwards he produced Ext.P-3 Minutes
Book as per Ext.P-4 mahazar.
12. PW-2 James Rajakumar was the independent witness
examined to prove the pre-trap and post-trap proceedings. He
deposed that he witnessed the trap on 22-12-2000. On the
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instructions of the Superintending Engineer, he had gone to the
office of the Dy.S.P., Vigilance and Anti-Corruption Bureau,
Palakkad on that date at about 9.30 A.M. CW-3 was there as a
witness for the trap. Then PW-5, the Dy.S.P. introduced him to
PW-1 and narrated the facts of the case. PW-1 handed over M.O.-1
series (Rs.1,000/-) and M.O.-2 series (Rs.250/-) currency notes to
PW-5. After conducting demonstration of the phenolphthalein test
on a currency note of Rs.10/- M.O-1 series and M.O-2 series were
placed into the pocket of PW-1 after smearing phenolphthalein
powder over the same and also directing him to pay the same to the
accused on demand. Ext.P-2 production mahazar was prepared and
the trap party proceeded to the Alanellur Grama Panchayat Office.
After obtaining the signal himself as well as the Vigilance Party and
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another witness entered into the room of the 1st accused. The 2nd
accused was also there in that room. The Dy.S.P. introduced himself
as well as the witnesses to the first accused and asked with regard to
the amount received from PW-1. The fingers of the right hand of the
first accused was immersed in the sodium carbonate water solution,
then the colour of the solution was turned pink. The fingers of the
left hand of the first accused was also immersed in the sodium
carbonate water solution, then the colour of the solution was turned
pink. The M.O-1 series currency notes along with some papers were
recovered from the shirt pocket of the first accused. Likewise, PW-5
has asked the 2nd accused with regard to the amount received by
him from PW-1. He also given M.O-2 series currency notes kept in
his shirt pocket. His hands were immersed in the sodium carbonate
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water solution and the colour of the solution was turned into pink.
Those solutions were seized and identified as M.Os 3 to 4. Both the
accused were arrested after preparing Ext.P-6 Arrest Memo.
Thereafter the accused, MO1 and records of trap were brought to
the Vigilance office, Palakkad.
13. PW-3 was the U.D. Clerk of Alanellur Grama Panchayat.
He was present in that office on 22-12-2000. As per the direction of
the Vigilance Police, he had produced certain documents before the
Vigilance Office. The work file of the Project No. 97 of the
improvement work of Alungal Kombamkallu road was marked as
Ext.P-7. The yearly Plan for 2000-01 of Alanellur Grama Panchayat
and the connected Annexure Form was produced and marked as
Ext.P-8. The Treasury Cheque Book was also produced and marked
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as Ext.P-9. The Cash Book kept in Alanellur Grama Panchayat from
13-3-1998 to 15-12-2000 was produced and marked as Ext.P-10.
The attendance Register of Alanellur Grama Panchayat from
1-7-1999 to 22-12-2000 was produced and marked as Ext.P-11. The
transfer and postings of the Panchayat Secretaries and the file thereof
were produced and marked as Ext.P-12. The transfer and postings of
the Head Clerks and the file thereof was produced and marked as
Ext.P-13. The mahazar prepared to seize these documents, got
marked as Ext.P-14. The Counter-Foil of Cheque Leaf No.280872
dated 15-12-2000 was marked as Ext.P-9(a), which was issued in the
name of K.A.Jalaluddeen (PW1). The details of that cheque was
stated in Ext.P-10 in Page No.84. That page was marked as
Ext.P-10(a). The application filed by PW-1 for advance payment was
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marked as Ext.P-7(a). In Page No.26 of Ext.P-7, another application
given by PW1 for obtaining Rs.25,000/- as advance. That was
marked as Ext.P-7(b). In Page No.27 of Ext.P-7, there is an advance
payment voucher of Rs.25,000/-, which was prepared by the 2nd
accused, and that was marked as Ext.P-7(c). In Page No.28 of
Ext.P-7, there is Receipt of Rs.25,000/- signed by PW1
(K.A.Jalaluddeen) as well as A.P. Mohammedali, as Convener and
Chairman, respectively, and that was marked as Ext.P-7(e). The total
amount granted for the road work was Rs.1,00,000/-
14. Ext.P15 sketch regarding the place of occurrence was by
PW4 the Assistant Engineer, PWD Building Section, Mannarkkad.
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15. PW5, the DySP Vigilance and Anti Corruption Bureau,
Palakkad as on 22.12.2000 deposed about the arrival of PW1 in his
office and lodging of Ext.P1 complaint. According to him, Ext.P1
FIR was registered acting on Ext.P1 complaint. He deposed about
the presence of PW2 and CW3 before him, and production of MO1
and MO2 series notes by PW1. He also deposed about
phenolphthalein test and smearing of phenolphthalein in MO1 and
MO2 series and entrustment of the same that of PW1. He fully
supported the pre-trap proceedings as well as post-trap proceedings
including recovery of Rs.1,000/- (MO1 series) from the pocket of
the shirt of the 1st accused and his arrest as per Ext.P6 memo.
Similarly he had given evidence supporting recovery of Rs.250/-
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(MO2 series) from accused No.2. PW6 filed Final Report in this
case.
16. Although the learned counsel for the accused
cross-examined PW1 to PW6 nothing extracted to disbelieve their
versions. In this case, Ext.P11 attendance register tendered in
evidence would show that as on the date of occurrence, the 1st
accused and 2nd accused were working in the office of the Grama
Panchayat Alanelloor. Coming to the crux of the case, PW-1 was
the convener for the improvement work of Alungal-Kombamkallu
road, using the funds from the Government's Peoples' Planning
Programme, in Alanellur Grama Panchayat. The total estimated
amount of the work was Rs.1,00,000/-. For effecting the advance
payment of Rs.25,000/-, PW-1 put up an application before the 1st
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accused, the Secretary of the Alanellur Grama Panchayat. The 2nd
accused was the Head Clerk in that office during the relevant period.
For granting the advance payment of Rs.25,000/-, the 1st accused
had demanded an amount of Rs.1,000/for him and Rs.250/- for
the 2nd accused, at 11 a.m. on 12-12-2000 at the office of the
Alanellur Grama Panchayat. Although PW1 had expressed his
inability to pay the amount, both the accused reiterated the demand
and thereby PW1 agreed to pay the amount after the encashment of
the cheque, on 15-12-2000. The cheque was issued to him on that
date. Both the accused reiterated the demand and also stated that if
that amount would not be paid, they would not grant further
instalment payments for the construction work. After receipt of the
cheque, he had presented it before the Sub-Treasury, Mannarkkad.
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The Treasury officials noted certain objections in the cheque, and
later it was rectified and encashed the cheque on 16-12-2000. Since
he was not willing to pay the bribe amount to the accused, he
informed the Vigilance Police. Then, on 22-12-2000, he went to the
Vigilance Office at Palakkad. Two Government servants, PW-2 and
CW-3 came there on the request of PW-5. They introduced
themselves and narrated the facts of the case. After completing the
demonstration and also entrusting M.O-1 series and M.O-2 series
currency notes to PW-5 and he made initial in it and seized as per an
entrustment mahazar. After smearing phenolphthalein powder in
M.O-1 series and M.O-2 series currency notes that were entrusted to
PW-1 with direction to give that amount to the accused on demand.
Then they proceeded to the Panchayat Office, Alanellur. PW-1 and a
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Police Constable went to the office of the 1st accused, and he
apprised that the encashment of the cheque. A-2 was also sitting in
the room of A-1. Then the 1st accused demanded an amount of
Rs.1,000/-. M.O.-1 series currency notes were given to the 1st
accused, and he accepted the same and put in his shirt pocket.
Likewise, the 2nd accused also demanded Rs.250/- and that was
given to him, and he accepted the same and put in his shirt's pocket.
After that, he came out from the office room and gave signal to the
vigilance officers. Then, PW-5 along with the witnesses and police
party entered into the office room of the 1st accused.
17. To support the case of PW-1, PW-2 an independent
witness also was examined and the independent witness fully
supported the pre-trap and post-trap proceedings where PW1
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categorically deposed about demand and acceptance of MO1 and
MO2 series by accused Nos. 1 and 2.
18. Now, it is necessary to address the ingredients required to
attract the offences under Section 7 and Section 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988. The same
are extracted as under:--
Section 7:- Public servant taking gratification
other than legal remuneration in respect of an
official act. - 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
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forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for
rendering or attempting to 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.
Section 13:- Criminal misconduct by a public
servant. - (1) A public servant is said to commit the
offence of criminal misconduct,-
(a) xxxxx
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(b) xxxxx
(c) xxxxxx
(d) If he,- (i) by corrupt or illegal means, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or (ii) by abusing his position as
a public servant, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary
advantage without any public interest.
xxxxxx
(2) Any public servant who commits criminal misconduct shall
be punishable with imprisonment for a term which shall be not less
than four years but which may extend to ten years and shall also be
liable to fine.
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19. In this connection it is relevant to refer a 5 Bench decision
of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta Vs
State, where the Apex Court considered when the demand and
acceptance under Section 7 of the P.C Act to be said to be proved
along with ingredients for the offences under Sections 7 and
13(1)(d) r/w 13(2) of the PC Act and in paragraph 68 it has been
held 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 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
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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.
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
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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
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unavailable to let in his evidence during trial, demand of illegal
gratification can be proved by letting in the evidence of any other 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."
20. 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
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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 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
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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. Insofar 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.
21. On scrutiny of the evidence in parity with the legal
position discussed in the instant case, the prosecution succeeded in
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proving that the 1st accused by misusing his position as public
servant demanded and accepted Rs.1,000/- as illegal gratification
and thereby committed criminal misconduct punishable under
Sections 7 and 13(1)(d) r/w 13(2) of the PC Act. Therefore the
special court rightly found so and the said conviction does not
require any interference.
22. Coming to the sentence the special court imposed
rigorous imprisonment for a period of one year and to pay fine of
Rs.1,000/- for the offence punishable under Section 7 of the PC Act
and in default of payment of fine, to undergo rigorous
imprisonment for a period of three months. Similarly, for the
offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act,
the 1st accused was sentenced to undergo rigorous imprisonment
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for two years and to pay fine of Rs.2,000/-. In default of payment of
fine, the 1st accused would undergo rigorous imprisonment for a
period of three months. Having considered the facts of this case,
and in consideration of the arguments tendered by the learned
counsel for the 1st accused in the matter of reduction of sentence,
I am inclined to modify the sentence.
23. In the result, this appeal is allowed in part. The conviction
imposed by the special court is confirmed. The sentence stands
modified as under:
1. The 1st accused is sentenced to undergo rigorous
imprisonment for a period of six months and to pay fine
of Rs.1,000/- for the offence punishable under Section 7
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of the PC Act, 1988. In default of payment of fine, the 1st
shall undergo rigorous imprisonment for a period of two
weeks.
2. The 1st accused is sentenced to undergo rigorous
imprisonment for a period of one year and to pay fine of
Rs.2,000/-. In default of payment of fine the 1st accused
shall undergo rigorous imprisonment for a period of four
weeks.
24. Set off is allowed for the period he was in judicial custody in
connection with this crime.
25. The order suspending the sentence and granting bail to
the accused is cancelled and his bail bond also is cancelled.
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Accordingly, the 1st accused/appellant is directed to surrender
before the special court forthwith to undergo the modified sentence.
If the 1st accused/appellant fails to surrender as directed, the special
court is directed to execute the modified sentence without fail.
The Registry is directed to forward a copy of this judgment to
the special court forthwith for information and compliance.
Sd/-
A.BADHARUDEEN, JUDGE
RMV
