Kerala High Court
Thomas.J vs State Of Kerala on 28 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.APPEAL NO. 2466 OF 2009
AGAINST THE JUDGMENT DATED 27.10.2009 IN CC NO.28 OF 2008
OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
APPELLANT/ACCUSED:
THOMAS.J
S/O JOSEPH, FORMER UDC, DISTRICT REGISTRAR
OFFICE ALAPPUZHA, KALARATHIL HOUSE,
KOKKOTHAMANGALAM, CHERTHALA.
BY ADVS.
SRI.C.PRATHAPACHANDRAN PILLAI
SRI.N.AJITH
SRI.R.SURAJ KUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
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2
Crl.Appeal No.2466 of 2009
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 29.01.2025, THE COURT ON 28.02.2025 DELIVERED
THE FOLLOWING:
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3
Crl.Appeal No.2466 of 2009
P.G. AJITHKUMAR, J.
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Crl.Appeal No.2466 of 2009
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Dated this the 28th day of February, 2025
JUDGMENT
The appellant is the sole accused in C.C.No.28 of 2008
on the files of the Court of Enquiry Commissioner and Special
Judge, Kottayam. He was tried on a charge alleging offences
punishable under Sections 7 and 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 (PC Act). He
was convicted and sentenced. Aggrieved thereby, this appeal
was filed under Section 374(2) of the Code of Criminal
Procedure, 1973 (Code).
2. The appellant was working as a U.D.Clerk in the
office of the District Registrar, Alappuzha. PW1 was the buyer
in sale deed No.2934/2001 of the Sub Registrar's Office,
Alappuzha. Proceedings were initiated for undervaluation in
respect of that sale deed from the office of the District
Registrar, Alappuzha. When PW1 approached the office, the
appellant told him that the deficit stamp duty would be
Rs.12,000/- but the same shall be reduced to Rs.3,000/-, if
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an illegal gratification of Rs.1,000/- was paid for himself and
the District Registrar. At about 4.20 p.m. on 23.10.2001, the
appellant received the said illegal gratification. Hence, he was
prosecuted.
3. When a charge was framed and read over, the
appellant pleaded not guilty. Therefore, the prosecution has
examined PWs.1 to 8 and proved Exts.P1 to P25. MOs.1 to 5
were identified. After closing the evidence of the prosecution,
the appellant was examined under Section 313(1)(b) of the
Code. He denied the incriminating circumstances appeared
against him in evidence. He pleaded that he did not demand
or receive any illegal gratification from PW1. PW1 came near
him at 4.00 p.m. on 23.10.2001 and placed a cover on his
palm, which he pushed aside. PW1 requested to hand that
over to the District Registrar as he was not able to give it
directly due to the rush in the room. However, at that time,
the police came and effected the seizure. He told the Dy.S.P.
about what had happened. In fact, PW1 was trying to bribe
the District Registrar since he had to issue the order. As a
matter of fact, the order fixing stamp duty was to be issued
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by the District Registrar. Thus, he maintained that he was
falsely implicated in the case. No evidence was adduced on
his side.
4. The trial court, after considering the evidence on
record, found the appellant guilty. The contention raised by
the appellant that when PW1 did not state supporting the case
of the prosecution, there was absolutely no evidence for
proving demand for illegal gratification. But that contention
was not accepted by the Special Court. Pointing out the
contradiction between the versions of PW2, the independent
witness to the seizure of the tainted currency notes from the
possession of the appellant and that of PW7, the seizing
officer, it was contended that there was no evidence for
receiving the tainted money, which were marked as MO1 and
MO1(a). The said contention was also not accepted by the
Special Court, holding that there was no serious conflict
between the evidence of PW2 and PW7. It was held that when
their evidence proved acceptance of the tainted notes by the
appellant and in the light of the circumstances leading to the
imposition of a lesser stamp duty in the sale deed in favour of
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PW1, it could be found that the appellant received illegal
gratification. Thus, the conviction was entered into.
5. Heard the learned counsel for the appellant and the
learned Senior Public Prosecutor as well as the Special Public
Prosecutor (Vigilance).
6. Ext.P12 is a copy of sale deed No.2934/2001 of the
Sub Registry, Alappuzha. Proceedings were initiated
concerning the said document for undervaluation. PW6, the
then Sub Registrar, Alappuzha, deposed about those facts.
The value of the property shown in that document is
Rs.90,000/-; whereas its actual value is Rs.1,50,000/-. He
submitted Ext.P11 report pointing out the undervaluation.
Ext.P13 is the note file and Ext.P14 is the notice issued to
PW1 in Form No.IIA. PW5, the successor Sub Registrar,
Alappuzha, proved Ext.P10 as per which deficit stamp duty of
Rs.3,000/- was imposed. From the said evidence, it has been
proved that proceedings were initiated from the office of the
District Registrar, Alappuzha against PW1 for undervaluation
of Ext.P12 sale deed and Rs.3,000/- was ordered to be paid
as stamp duty. It also stands proved that the stamp duty
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demanded was Rs.12,000/-. In the above context, the version
of PW1 that there was a demand for illegal gratification for
reducing the stamp duty in respect of Ext.P12 appears quite
probable.
7. The submission of the learned counsel for the
appellant is that if at all there was a demand for illegal
gratification, that was by the District Registrar and not by the
appellant. When the District Registrar was the authority to
decide what should be the proper stamp duty, the appellant,
who was only a Clerk, could not demand or accept any bribe
in that regard. The further submission is that when PW1 did
not state in court that the appellant demanded bribe, whereas
his intention was to pay bribe to the District Registrar, the
Special Court totally went wrong in finding the appellant
guilty. Regarding acceptance of the bribe by the appellant, it
was contended that evidence was insufficient to prove his
voluntary acceptance.
8. PW1 admitted his signature in Ext.P1, the
F.I.statement, the assertion in which is that the appellant
demanded illegal gratification for himself and the District
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Registrar. It is asserted in Ext.P1 that the appellant assured to
reduce stamp duty to Rs.3,000/- in the place of Rs.12,000/-.
However, in court, PW1 did not ascribe to the contents of
Ext.P1. He even went to the extent of saying that he signed in
a different paper. Thus, oral evidence to prove a demand for
bribe by the appellant is lacking.
9. PW1 deposed that he tried to give money to the
District Registrar, but could not, since there were other
persons in his room. Then he approached the appellant, who
was going to his seat in the hall room of that office, and
entrusted MO1 and MO1(a) currency notes with him to hand
over to the District Registrar. PW1 added that when the
appellant refused to accept it, as insisted by the policeman
along with PW1, he placed money in the hand of the
appellant. Thus, PW1 resiled from the complaint and his
statement in police with the result no evidence came from
PW1 regarding voluntarily acceptance of the bribe money by
the appellant.
10. PW2 is an independent witness. He stated about
receipt of MO1 and MO1(a) currency notes by the appellant.
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Of course, the appellant has a contention that PW2 was not
present at the time when PW1 gave money to him. That
question can be dealt with a little later.
11. As prearranged, a signal regarding payment of
bribe money to the appellant was passed on to the vigilance
team and PW7 together with members of his team and the
witnesses rushed to the office. It is the categoric version of
PW2 and PW7 that MO1 and MO1(a) were taken out by the
appellant from his pants pocket and given. A seizure mahazar,
Ext.P7, was prepared for the seizure of the currency notes,
MO1 and MO1(a). The phenolphthalein test was positive.
Regarding acceptance of that money by the appellant, the
version of PW1 also corresponds to the evidence tendered by
PW2 and PW7. When their oral testimonies are corroborated
by Ext.P7, there cannot be any doubt that MO1 and MO1(a)
currency notes were received by the appellant at his office.
The question is whether the appellant voluntarily received the
said currency notes in consequence of a demand for bribery.
12. A Constitution Bench of the Apex Court in Neeraj
Dutta v. State (Govt. of NCT of Delhi) [(2023) 4 SCC
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731] considered the law relating to the standard of proof and
the nature of evidence required in a case where the charge is for
the offences punishable under Sections 7 and/or 13(1)(d) of the
PC Act. The conflict between various decisions of the Apex Court
in the above regard was set at rest as well. The following are the
expositions of law laid down by the Apex Court:
"88. What emerges from the aforesaid discussion is
summarised as under:
88.1. (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.
88.2. (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.
88.3. (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.
88.4. (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
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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
Sections 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 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 Sections 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 Sections 13(1)(d)
(i) and (ii) of the Act.
88.5. (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
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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.
88.6. (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 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.
88.7. (g) 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. Of course, the
said presumption is also subject to rebuttal. Section 20 does
not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption of fact
referred to above in sub-para 88.5(e), above, as the former
is a mandatory presumption while the latter is discretionary
in nature."
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13. It was thus held that mere acceptance of receipt of
an illegal gratification without anything more would not make
it an offence under Section 7 or 13(1)(d) of the PC Act. In a
case where obtainment of gratification is proved, demand for
the same shall be proved to constitute an offence. Of course,
it is not always necessary that direct evidence is adduced in
regard to the demand. As held in para 88.6(f) in the event the
complainant turned "hostile", demand of illegal gratification
can be proved by letting in the evidence of any other witness,
or documentary evidence or by circumstantial evidence. For
that reason alone the trial does not abate nor that an order of
acquittal is axiomatic. It was also held that a presumption of
obtainment of illegal gratification can be drawn if foundational
facts are proved. The question whether there was a demand
for illegal gratification by the appellant has to be considered in
the light of the aforementioned principles of law.
14. On the complaint of PW1, the case was initiated.
His initial assertion was that the bribe was demanded by the
appellant for himself and the District Registrar. Receipt of the
tainted money, MO1 and MO1(a) by the appellant is proved.
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But when PW1 resiled from his statement before the police
and shied away from stating in court that the appellant made
a demand, his evidence is not available to prove a demand by
the appellant for illegal gratification.
15. Prosecution therefore has to depend on evidence of
PW2 to prove the demand or the voluntary acceptance of the
tainted notes by the appellant, especially when the police man
who accompanied PW1 to the office of the appellant was not
examined. PW2 deposed in court that he accompanied PW1 till
the door of the room where the appellant was sitting. The
learned counsel for the appellant raised contentions that one
cannot see something happened inside the said room through
the door. The more serious contention raised is that on
account of the discrepancy between the oral testimonies of
PW2 and PW7 and also Ext.P7 mahazar, the claim of PW2
that he witnessed PW1 handing over money to the appellant
cannot be believed.
16. While PW2 stated that after reaching near the
Registrar's office in the police jeep along with PW7 and others,
he went along with PW1 to that office. PW7 deposed that
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PW1 was sent to the District Registrar's office along with
policemen. PW7 further stated that he along with the
witnesses; inferably the independent witnesses together went
to the office. That was after getting the signal about handing
over money to the appellant. Conspicuously Ext.P7 mahazar
does not contain a statement as to who were all went to the
Sub Registrar's office initially or rather whether PW2
accompanied PW1 to the office. When such a material
contradiction occurred in the evidence, the claim of PW2 that
he saw the appellant voluntarily accepting the tainted
currency notes from PW1 cannot be believed without some
independent corroboration. Even applying the proposition
contained in paragraph 88.4(d)(i) in Neeraj Dutta (supra)
solitary version of PW2 cannot be used to find that the
appellant made a demand for illegal gratification or that he
voluntary received the tainted currency notes enabling the
court to draw a presumption of receiving illegal gratification.
17. The learned Special Public Prosecutor would submit
that witnesses cannot be expected to recollect and narrate the
entire version with photographic memory after a long period
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of time. The Apex Court took such a view in Vinod Kumar
Garg v. State (Government of National Capital Territory
of Delhi) [(2020) 2 SCC 88]. Therefore, a small variation in
the evidence of PW2 with that of PW7 cannot be a reason to
disbelieve PW2 altogether. As stated, evidence of PW1, the
complainant, is not available to prove demand of illegal
gratification. When the prosecution has to depend upon the
sole testimony of PW2 to prove that fact, his evidence should
be of sterling quality. In view of discussion made above about
the nature of the evidence of PW2 that it is not fully reliable, I
am unable to agree with the submission of the learned Special
Public Prosecutor. Since the prosecution failed to prove
beyond doubt that the appellant made a demand for illegal
gratification for him and/or for the District Registrar for
reducing the stamp duty, the charge against him stands not
proved. The finding of the Special Court in that regard cannot
therefore be upheld. The conviction and sentence of the
appellant are liable to be set aside.
Accordingly, this appeal is allowed. On setting aside the
conviction and sentence as per the impugned judgment, the
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appellant is acquitted. He is set at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
