Kerala High Court

V.P. Asokan vs State Of Kerala on 25 October, 2025

                                                          2025:KER:79721
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

     SATURDAY, THE 25TH DAY OF OCTOBER 2025 / 3RD KARTHIKA, 1947

                        CRL.A NO. 275 OF 2013

       AGAINST THE JUDGMENT DATED 08.02.2013 IN CC NO.33 OF 2007 OF

  THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,KOZHIKODE.

APPELLANT/ACCUSED:

           V.P.ASOKAN
           FORMERLY VILLAGE MAN OF KAKKOOR VILLAGE OFFICE
           S/O.KELAPPAN,PARAYAROTTUMMAL HOUSE, KAKKOOR
           BY ADV.SRI.DEVAPRASANTH.P.J.
RESPONDENT/COMPLAINANT:
           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA,
           REPRESENTING DY.SP; VIGILANCE AND ANTI-CORRUPTION
           BUREAU,KOZHIKODE, PIN - 682 031
           BY SPL.PUBLIC PROSECUTOR SRI.RAJESH.A,VACB
              SR.PUBLIC PROSECUTOR SMT.REKHA.S.,VACB


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2025,
THE COURT ON 25.10.2025 DELIVERED THE FOLLOWING:
 CRL.A.NO.275 OF 2013           2
                                                         2025:KER:79721




                                                            CR
                          JUDGMENT

Dated this the 25th day of October, 2025

This appeal is at the instance of the sole accused in

C.C.No.33/2007 on the files of the Enquiry Commissioner and

Special Judge, Kozhikode, arising out of VC No.05/2005 of

Vigilance and Anti-Corruption Bureau, Kozhikode, challenging

conviction and sentence imposed against him in the said case, as

per judgment dated 08.02.2013.

2. Heard the learned counsel for the appellant and the

learned Public Prosecutor. Perused the records of the Special

Court.

3. In this case, the prosecution alleges commission of

offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2)

of the Prevention of Corruption Act, 1988 (for short, 'the PC Act,

1988' hereinafter), on the premise that the accused, while working

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as Village Man in the Village Office at Kakkoor, abused his official

position as public servant and demanded an illegal gratification of

Rs.100/- on 22.04.2005 from the complainant and thereafter,

demanded and accepted the same at 15.00 hrs. on 25.04.2005.

4. Acting on the final report filed before the Special Court,

the Special Court recorded evidence. PW1 to PW8 were examined,

Exts.P1 to P20 and MO1 to MO7 were marked on the side of the

prosecution. During cross examination, Ext.D1 contradiction also

marked as that of PW1. DW1 was examined and Exts.D1 to D2(a)

were marked on the side of the defence. Thereafter, the Special

Court found that the accused committed offences punishable under

Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act, 1988 and

sentenced him as under:

"In the result, the accused is sentenced to undergo Rigorous Imprisonment for a period of one year each and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo Rigorous Imprisonment for a period of three months for each of the offences punishable under Sections 7 and 13 (1) (d) r/w. 13 (2) of the Prevention of

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Corruption Act, 1988. The substantive portion of the sentences shall run concurrently. Accused is entitled to get set off under Section 428 of Criminal Procedure Code regarding the period of detention undergone by him. Since complainant has given evidence that M.O-1 currency note does not belong to him, it is ordered to be confiscated and M.O-2 to MO-7 bottles are to be destroyed as valueless after the expiry of the period of appeal."

5. While challenging the conviction and sentence imposed

against the appellant, the learned counsel for the appellant/accused

argued that, in this case, the prosecution relied solely on the

evidence of PW1, the complainant, to prove the demand and

acceptance of Rs.100/- as illegal gratification by the accused from

PW1 at 15.00 hours on 25.04.2005. But when PW1 was examined,

he turned hostile to the prosecution and during his cross

examination also, nothing was elicited to find the element of

demand. The learned counsel also pointed out that either the decoy

or other witnesses either not cited by the prosecution or none of

them given evidence supporting demand and in such view of the

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matter, the twin ingredients required to find the commission of

offences under Section 7 as well as Section 13(1)(d) r/w Section

13(2) of the PC Act, 1988, not specifically established. Therefore,

the Special Court went wrong in convicting and sentencing the

accused by finding that he had committed the said offences.

6. The learned Public Prosecutor argued that the evidence

of PW1 did not support the prosecution on the aspect of demand,

but the element of demand has to be inferred from the

circumstances, as held by the Apex Court in the decision in Neeraj

Dutta v. State, reported in [AIR 2023 SC 330].

7. Adverting to the rival arguments, the points arise for

consideration are;

(i) Whether the Special Court was right in

holding that the accused committed offence punishable

under Section 7 of the PC Act, 1988?

(ii) Whether the Special Court was right in

holding that the accused committed offence punishable

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under Section 13(1)(d) r/w Section 13(2) of the PC Act,

1988?

(iii) Whether the verdict would require interference?

(iv) The order to be passed?

8. Point Nos.(i) to (iv)

In this matter, PW1 was examined by the prosecution to

prove the demand and acceptance of a bribe, but he did not support

the prosecution. Accordingly, his previous statements, marked as

Exts.P2, P2(a) to P2(e), were relied upon by the prosecution. Apart

from that, it was through PW1 that Ext.P3, the application

submitted by PW1 at the Taluk Office for getting the land surveyed,

and Ext.P3(a), the receipt for payment of Rs.200/- towards the

survey fee, were marked in evidence. On cross-examination at the

instance of the legal advisor, nothing was elicited to establish the

demand and acceptance of a bribe by the accused, as alleged by the

prosecution.

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9. It is true that PW2 given evidence in support of the

prosecution. According to PW2, on 25.04.2005, when he was

working as Tahsildar [L.A.(N.H.)], Kozhikode, he went to the Office

of the Dy.S.P., Vigilance and Anti-Corruption Bureau, Kozhikode,

as per the direction given by the District Collector, along with the

Senior Superintendent of the Office of Revenue Divisional Officer,

Kozhikode. When they reached the room of the Dy.S.P., PW1 was

sitting inside. The Dy.S.P. introduced them to PW1, and he in turn

introduced PW1 to the Government officials. The Dy.S.P. informed

them about the details of the complaint given by PW1 and also

about the fact that Vigilance had registered the case based on that

complaint. The complainant handed Rs.100/- to the Dy.S.P., who

put the mark 'V' on the currency note. The number of the currency

note was recorded in the Mahazar. MO1 was the currency note

entrusted by PW1 to the Dy.S.P. Thereafter, the hands of the

complainant were dipped in Sodium Carbonate Solution, and there

was no colour change in the liquid; a sample of that liquid was

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taken in a bottle marked as MO2. A Rs.10/- currency note was then

given to the complainant, which he handled, and his fingers were

dipped in Sodium Carbonate Solution; there was no colour change,

and a sample was taken as MO3. Phenolphthalein powder was

smeared on the Rs.10/- note, which the complainant handled, and

upon dipping his hands in the solution, it turned pink; the sample

was marked as MO4. Phenolphthalein powder was then smeared

on MO1, which was put in the pocket of the complainant by a

policeman with instructions that the currency note was to be given

to the Village Man only if he demanded a bribe, and if he accepted

the amount, a signal had to be given to the policeman waiting

outside, who would signal the Dy.S.P. All of them then proceeded to

Kakkoor, reaching there at 3.00 p.m. The complainant was sent to

the Village Office along with two policemen, while the Dy.S.P. and

the official witnesses waited in the jeep. The Dy.S.P. received a

signal at 3.15 p.m., and the trap party went to the Village Office. At

that time, the complainant was coming out from the Village Office

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and had a secret conversation with the Dy.S.P. The trap party

entered the Village Office, Kakkoor, and enquired about the

identity of Village Man Asokan. The accused identified himself as

the Village Man, Asokan. The Dy.S.P. introduced him and the trap

party to each other. When asked whether he had received any bribe

from the complainant, the accused shook his head indicating that

he had not received any amount. When asked again, the accused

stated that the complainant had put the currency note in his pocket

by force and that he had not accepted any amount. At that time, the

Village Officer of Kakkoor arrived. The Dy.S.P. and the official

witnesses dipped their hands in the Sodium Carbonate Solution,

and there was no colour change; the sample was marked as MO5.

The hands of the accused were then dipped in the solution, which

turned pink; the sample was marked as MO6. The Dy.S.P. asked

PW2 to search the pocket of the accused, and PW2 found Rs.100/-

inside, which on verification was identified as the currency note

entrusted to PW1 by the Vigilance Police. A portion of that currency

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note was dipped in the solution, which turned pink, and the sample

was marked as MO7. Sodium Carbonate Solution was sprinkled in

the pocket of the shirt worn by the accused, and the portion of the

pocket where the solution was applied turned pink. The accused

was arrested by the Dy.S.P., and his shirt was taken into custody

after giving him a new shirt. The Attendance Register, marked as

Ext.P6, and the Miscellaneous Certificate Issue Register, marked as

Ext.P7, which were seen on the table of the accused, were taken

into custody by the Dy.S.P. Before leaving the office, a Mahazar was

prepared stating the details of the acts done at that office, which

was marked as Ext.P4. Ext.P5 was the Recovery Mahazar prepared

at the Village Office, Kakkoor, stating the acts done at the Village

Office, Kakkoor by the trap party. Thereafter, PW2, along with

Inspector of Vigilance Jaison Abraham and PW8 went to the house

of the accused and conducted a search. Ext.P8 was the Search List

prepared regarding the search of the house, but no important

documents were seized. They then returned from the Village Office,

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Kakkoor to the Vigilance Office along with the accused and the

seized articles. Ext.P9 series was the Site Plan of Kakkoor Village

Office. The person arrested from the Village Office, Kakkoor, was

the accused in this case. In cross-examination, PW2 stated that

they had reached the Vigilance Office between 10.45 a.m. and 11

a.m. on 25.04.2005. When the Dy.S.P. informed the witnesses

regarding the details of the complaint, policemen entered the room.

PW2 did not know whether they had heard the details of the

complaint, as they were not in uniform, but from their behavior

and conversation with the Dy.S.P., PW2 understood that they were

policemen. The complainant remained seated inside the room

while PW2 was present until the trap party proceeded to Kakkoor.

PW2 did not make any enquiries with the complainant regarding

the contents of the complaint, nor did the complainant tell him

anything. He had not seen the Dy.S.P. engage any particular person

to follow the complainant. The trap party entered the room where

the Village Assistant was sitting. He did not know whether a person

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named Ramadas had accompanied the complainant. He denied the

suggestion that the accused had admitted receiving the Rs.100/- or

that the Dy.S.P. instructed him to keep the note in his pocket. All

conversations between the accused and the Dy.S.P. were not

recorded in the Recovery Mahazar; only relevant facts were

recorded. The accused never stated that the currency note kept by

him was given by the complainant requesting change. During the

search of the house, it was observed to be the residence of a person

with lower income, and no modern equipment was seen. PW2 had

not seen the examination of the complainant's body or the

accused's body search after arrest. He denied having given false

evidence and stated that he had not met any person named

Ramadas on the day of the trap.

10. Apart from the evidence of PW2, the decoy, PW3

supported filing of Ext.P3 application by the complainant to the

Vigilance and seizure of the same as per Ext.P10 Mahazar. PW3,

PW4, PW5, PW6 and PW7 supported the prosecution case

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regarding the procedure of trap proceedings and none of the

witnesses deposed in support of demand of bribe by the accused.

11. Apart from that, PW8 had given evidence that, while he

was working as Inspector, Vigilance & Anti-Corruption Bureau,

Kozhikode, he had participated in the trap conducted on

25.04.2005. Thereafter, he had searched the house of the accused

and prepared Ext.P8 Search List. He had conducted the

investigation of this case from 26.04.2005 onwards. He had

prepared Ext.P16 Scene Mahazar on 26.04.2005 and produced the

properties seized before the Court after preparing Ext.P17 Property

List. He had filed Ext.P18 report for adding Sections 13(1)(d) and

13(2) of the Prevention of Corruption Act, 1988, in the F.I.R. He

had seized the Service Book of the accused as per Ext.P19 Seizure

Mahazar. He had also seized Ext.P3 application and the connected

documents on 15.06.2005 as per Ext.P10 Mahazar. He had filed

Ext.P20 report for correcting the date shown in Ext.P16 Scene

Mahazar. PW8 stated that he had questioned the witnesses, except

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CW2. CW1 had given statements as evidenced by Exts.P2, P2(a) to

P2(e). The charge sheet had been submitted by Dy.S.P. Raj

Mohanan Nair. In cross-examination, he stated that he had been a

member of the trap party and that there were officers above his

rank in the Vigilance & Anti-Corruption Bureau for conducting the

investigation of this case. He admitted that the Movement Register

of the Village Office, Kakkoor, had not been seized by him. He

further stated that a person sitting at the place marked as '4' in

Ext.P9 sketch could not see the person sitting at the position

marked "Village Officer" in the sketch. Different handwritings were

seen on pages 56, Item Nos.44 to 48 of Ext.P7 Miscellaneous

Certificate Issue Register, and no steps had been taken to identify

those handwritings. He did not know whether the body search of

PW1 had been conducted before or after proceeding for the trap. He

had not enquired about the duties of the Special Village Office. On

searching the house of the accused, it was found to be the house of

a poor person. In re-examination by the Additional Legal Adviser,

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he stated that PW4 had identified the handwriting of the accused

and had confirmed that the report was written by the accused. He

admitted that he had not taken any steps to verify the handwriting

scientifically. In further cross-examination, he stated that he had

not seen any document to show that the accused had been

entrusted with preparing the report.

12. On an analysis of the entire evidence, it could be

observed that none of the witnesses supported the most essential

ingredient of the offence, namely, the demand for illegal

gratification, as alleged by the prosecution. The Special Court,

however, convicted the accused by inferring from the attendant

circumstances, particularly based on the recovery of MO1 currency

note from the accused.

13. Now, it is necessary to address the ingredients required

to attract the offences under Section 7 and Section 13(1)(d) r/w

Section 13(2) of the PC Act, 1988. The same are extracted as

under:-

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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 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. xxxxx (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.

14. In this connection, it is relevant to refer a 5 Bench

decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta

v. State, where the Apex Court considered when the demand and

acceptance under Section 7 of the P.C.Act, 1988 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, 1988 and in paragraph No.68, it

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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 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

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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 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

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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

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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.

(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."

15. Thus, the legal position as regards to the essentials

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under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act, 1988, is

extracted above. Regarding the mode of proof of demand of bribe, if

there is an offer to pay bribe 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 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

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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.

16. In this context, it is relevant to refer the decision of this

Court in Sunil Kumar K. v. State of Kerala reported in [2025

KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025,

wherein in paragraph No. 12, it was held as under:

"12. Indubitably in Neeraj Dutta's case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M.Narasinga Rao, with regard to the nature and quality of proof necessary to

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sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence"

of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police's case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences

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punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia's case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand."

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17. Adverting to the evidence available in this case, it is to be

noted that, as per the statutory requirement, in order to sustain a

prosecution alleging commission of offences punishable under

Section 7 as well as under Section 13(1)(d) r/w Section 13(2) of the

PC Act, 1988, the demand and acceptance of bribe or illegal

gratification - the twin ingredients must be proved by the

prosecution beyond reasonable doubt. In the instant case, since

PW1, who was examined by the prosecution to prove the demand

and acceptance of bribe by the accused, did not support the

prosecution in the matter of demand, and no other evidence is

available to see the demand, it is held that the Special Court went