Kerala High Court

A.K.Rajendran vs State Of Kerala on 6 October, 2025

                                           2025:KER:72764




        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

  MONDAY, THE 6TH DAY OF OCTOBER 2025/14TH ASWINA, 1947

                 CRL.A NO. 1473 OF 2006

       AGAINST THE JUDGMENT DATED 29.07.2006 IN CC NO.16
 OF 1998 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR

APPELLANT/ACCUSED:
         A.K.RAJENDRAN
         AGED 47 YEARS
         S/O.KUMARAN, FORMER VILLAGE ASSISTANT,
         O/O. SPECIAL TAHSILDAR, LA III, KOCHI
         INTERNATIONAL AIRPORT, ANGAMALY.

         BY ADVS.
         SRI.R.ANIL
         SRI.DELVIN JACOB MATHEWS
         SRI.GEORGE PHILIP
         SRI.RAJU RADHAKRISHNAN

RESPONDENT/COMPLAINANT:
         STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.

         BY SMT.REKHA S., SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.09.2025, THE COURT ON 06.10.2025 DELIVERED THE
FOLLOWING:
                                                 2025:KER:72764

CRL.A.NO.1473 OF 2006
                               2


                                                            CR

                         JUDGMENT

Dated this the 6th day of October, 2025

The appellant, who was convicted and sentenced by the

Enquiry Commissioner and Special Judge, Thrissur, in

C.C.No. 16/1998 by judgment dated 29.07.2006, has preferred

this appeal, challenging the said conviction and sentence on

multiple grounds. The State of Kerala is the respondent herein.

2. Heard the learned counsel for the

appellant/accused as well as the learned Special Public

Prosecutor in detail. Perused the evidence available in the

records of the Special Court and the decisions placed by the

learned counsel for the appellant.

3. In a nutshell, the prosecution allegation is that, the

accused demanded Rs.25,000/- (Rupees twenty five thousand

only) as illegal gratification from PW1, Sri.Paul Varghese, as a

motive or reward for not making any reduction in the value of 2025:KER:72764

CRL.A.NO.1473 OF 2006

improvements of the land acquired for Kochi International

Airport and for disbursing the compensation. Accordingly, he

demanded and accepted Rs.10,000/- on 05.09.1997 and

again, Rs.15,000/- was demanded and accepted on

19.09.1997 and he was trapped along with Rs.15,000/- by the

trap team. Accordingly, the prosecution alleges commission of

offences punishable under Section 7 as well as under Section

13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988

(hereinafter referred to as 'PC Act' for short) by the accused.

4. According to the learned counsel for the

appellant/accused, initially, the Deputy Collector (LR), the

Special Tahsildar as well as the Village Assistant were arrayed

as accused in the First Information Statement as accused

Nos.1 to 3. After investigation, final report filed against the

appellant alone, excluding the others from the array of

accused. Thereafter, when PW1 was examined, he deposed

about demand of bribe by the Deputy Collector and Special 2025:KER:72764

CRL.A.NO.1473 OF 2006

Tahsildar also. Acting on the said evidence, by invoking the

power under Section 319 of the Code of Criminal Procedure

(hereinafter referred to as 'Cr.P.C.' for short), they got arrayed

as additional accused by the Special Court. However,

challenging the said order, the above persons approached this

Court and the said order was set aside and accordingly, their

case was quashed. According to the learned counsel for the

appellant/accused, in the instant case, the case of the

prosecution as well as the evidence given by PW1 is that,

accused Nos.1 to 3 in the First Information Report visited the

property of PW1 and demanded bribe for the purpose of not

reducing the value of improvements for the property assessed

as Rs.71,000/-. According to the learned counsel for the

appellant, the appellant, who is the Village Assistant, is low in

hierarchy, had any role either to reduce or increase the land

value for improvements. The prosecution records would show

that the demand was by the Deputy Collector and the 2025:KER:72764

CRL.A.NO.1473 OF 2006

Tahsildar, who were capable of doing the said exercise.

Accordingly, it is pointed out that the story of demand and

acceptance of Rs.25,000/- (Rs.10,000 + Rs.15,000) by the

accused is an improbable story and the appellant/accused

was made as a scapegoat to give clean chit to the Deputy

Collector and the Tahsildar, though they demanded the bribe

and made to accept the same by the accused under the guise

of accepting the amount for a 'Kuri' transaction.

5. It is pointed out by the learned counsel of the

appellant/accused further that, in this case, the demand, which

is the most essential ingredient to prove the offences under

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

has not been proved. Therefore, the prosecution failed to

prove the offences alleged against the accused, and in such

view of the matter, the conviction and sentence are liable to be

set aside.

6. In this connection, the learned counsel for the 2025:KER:72764

CRL.A.NO.1473 OF 2006

appellant/accused placed latest decision of this Court in Sunil

Kumar K. V. State of Kerala, reported in 2025 KHC 983. In

paragraph No.12 of the judgment, this Court observed the

ingredients 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 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 2025:KER:72764

CRL.A.NO.1473 OF 2006

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 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 2025:KER:72764

CRL.A.NO.1473 OF 2006

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."

7. It is contended by the learned counsel for the

appellant/accused further that, in a case where this Court was not

inclined to interfere with the conviction and sentence when

considered by the Apex Court in the latest decision of the Apex

Court in Pounammal K. v. State represented by Inspector of

Police, reported in 2025 KHC 6718, the Apex Court modified the

sentence for the period already undergone by confirming the

conviction and avoiding further sentence in respect of the accused

who was aged 76 years on the date of pronouncement of

judgment ie, 21.08.2025. Therefore, the sentence in this case

also, to be modified in tune with the decision in Pounammal's

case (supra), in the event this Court confirms the conviction in this 2025:KER:72764

CRL.A.NO.1473 OF 2006

case.

8. Whereas the learned Special Public Prosecutor

opposed this contention and zealously submitted that the

evidence of PW1, in support of demand and acceptance of

Rs.10,000/- initially on 05.09.1997 by the accused and

subsequently, Rs.15,000/- on 19.09.1997, was not at all shaken

during cross-examination to disbelieve him. Therefore, the

evidence of PW1 is sufficient to establish the ingredients as set

out in Sunil Kumar K's case (supra). Therefore, the

conviction and sentence do not require any interference. It is

also submitted that the cause of action adopted by the Apex

Court in Pounammal's case (supra) also, cannot be applied in

this case and the same is to be read in the facts of the said

case.

9. In this matter, though initially, FIR was registered

against accused Nos.1 to 3, but final report was filed against

the present accused only and the Special Court took 2025:KER:72764

CRL.A.NO.1473 OF 2006

cognizance for the offences punishable under Sections 7 and

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

accused/appellant and proceeded with the trial. Though during

trial, the Special Court invoked the power under Section 319

Cr.P.C. to proceed against the other accused, this Court set

aside the said order and accordingly, further trial proceeded

against the present appellant/accused alone.

10. The trial court relied on the evidence of PW1 to

PW8, Exts.P1 to P10 and MO1 to MO5. No evidence was let

in by the accused. On evaluation of the evidence, 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. Accordingly, he was convicted and sentenced to

undergo Rigorous Imprisonment for 5 years and to pay a fine of

Rs.50,000/- (Rupees Fifty Thousand only), in default to undergo

Rigorous Imprisonment for a further period of six months for the 2025:KER:72764

CRL.A.NO.1473 OF 2006

offence punishable under Section13(1)(d) read with Section

13(2) of the PC Act, 1988. He was also sentenced to undergo

Rigorous Imprisonment of 4 years and to pay a fine of

Rs.50,000/- (Rupees Fifty thousand only), in default to undergo

Rigorous Imprisonment for a further period of six months for the

offence punishable under Section 7 of the PC Act, 1988.

Substantive sentences shall run concurrently. The bail bonds

of the accused were cancelled.

11. Adverting to the rival submissions, the following

questions arise for consideration:-

1. Whether the special court is justified in holding that the accused committed offence punishable under Section 7 of the PC Act, 1988?

2. Whether the special court went wrong in holding that the accused committed offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act, 1988?

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CRL.A.NO.1473 OF 2006

3. What are the essentials to be proved to sustain conviction and sentence under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act ,1988?

4. Whether the verdict under challenge would require interference?

5. The order to be passed?.

12. In the instant case, the trial court relied on the

evidence of PW1, the defacto complainant, to hold that the

prosecution had succeeded in proving that the accused had

demanded and accepted Rs.15,000/- at 11:00 a.m. on

19.09.1997, in addition to Rs.10,000/- received prior to that on

05.09.1997. That apart, the evidence of PW2, the independent

trap witness, and PW6 and PW7, the trap laying officers also

were given adherence to justify the verdict of the trial court.

Coming to the evidence of PW1, he testified that the landed

property of PW1 in Nedumbassery was acquired for the

purpose of construction of Kochi International Airport. The total 2025:KER:72764

CRL.A.NO.1473 OF 2006

compensation would come to Rs.27 lakh. Out of the same,

Rs.71,000/- was the value of improvements. The land

acquisition proceedings were held in Land Acquisition Special

Tahsildar's Office, LAIII for Kochi International Airport in

Angamaly. The accused was the Village Assistant therein.

Sri.Padmanabha Panicker (PW3) was the then Special

Tahsildar of the said office. Raghunandanan was the Deputy

Collector of Land Acquisition at that time whose office was at

Civil Station, Kakkanadu. During August 1997, the accused,

PW3 and Raghunandanan came to inspect his properties.

During this time, the accused demanded bribe of Rs.25,000/-

from PW1. Deputy Collector Raghunandanan told PW1 that if

he did not pay that amount he would reduce the value of

improvements. According to PW1, he understood that accused

had demanded that amount for himself, PW3 and

Raghunandanan. PW1 was told by Sri. Padmanabha Panicker

and Raghunandanan that if PW1 paid Rs.25,000/- to the 2025:KER:72764

CRL.A.NO.1473 OF 2006

accused, the matter would be set at right. On September 5,

1997, he met the accused at his office and paid Rs 10,000/-.

Thereafter, the Special Tahsildar (PW3) issued a cheque for

Rs.7,68,311/-. The accused told him that only if he paid the

balance bribe amount of Rs.15,000/-, the cheque for the

balance compensation amount would be issued. As PW1 was

not prepared to pay balance bribe amount, he went to

Thiruvananthapuram and complained to the Superintendent of

Police, Vigilance Headquarters Unit therein. PW6, the then

Deputy Superintendent of Police at Vigilance Headquarters

Unit, Thiruvananthapuram recorded the statements of PW1

and obtained the signature therein on September 18, 1997 at

11 AM. He identified the said FIS as Ext.P1. Thereafter, the

independent witnesses PW2 and CW5 came there. In their

presence, on the instruction of PW6, PW1 produced

Rs.15,000/-, the trap money, which consisted of 30 currency

notes of Rs.500/- each. Those currency notes were marked as 2025:KER:72764

CRL.A.NO.1473 OF 2006

the MO1 series, as identified by PW1. PW6 noted the

numbers of those currency notes in Ext.P1(a) F.I.R. and

obtained the signatures of PW2 and Sri. Baby John (CW5).

The currency notes were then smeared with Phenolphthalein

powder by the Inspector, Sri.Jamaludhin (CW6) and were

placed in the pocket of the shirt of PW1 to give the same only

when demanded by the accused. All of them then met PW7,

Sri.Christy Bastian, another Deputy Superintendent of Police

therein, for further proceedings. PW7, PW1, the independent

witnesses and the trap team members then proceeded to the

office of the accused in Angamaly in two vehicles. They

reached Aluva in the night and took rooms at Thettayil Tourist

Home, Paravoor Junction. On the next day morning, PW7

called PW1, PW2 and CW5 to his room and told them about

the complaint of PW1. PW7 instructed PW1 to give a signal by

scratching his hair once the bribe was demanded and

accepted by the accused. Thereafter, they proceeded to the 2025:KER:72764

CRL.A.NO.1473 OF 2006

office of the accused in Angamaly. On the instruction of

PW7, PW1 proceeded to the office of the accused. Thereafter,

PW1 went to the office room of the accused. The accused

asked him whether he had brought the amount. PW1 replied

in the affirmative and took MO1 series currency notes, from his

pocket and gave the same to the accused. The accused took

the amount in his right hand and put the same in the right

pocket of his pants. PW1 then went outside and gave the

pre-arranged signal. PW7, PW2, CW5 and the trap team

members entered into the office of the accused. PW1

identified the accused by pointing him to PW7 and told

PW7 that accused had demanded and accepted the bribe

amount.

13. PW1 had categorically sworn that during August

1997 accused came to inspect the properties and met PW1

and demanded Rs.25,000/- for not making any reduction of

the value of improvements and for disbursing the 2025:KER:72764

CRL.A.NO.1473 OF 2006

compensation amount without any delay. Although PW1 was

meticulously cross-examined, nothing elicited to discredit his

evidence in the matter of demand and acceptance of MO1

series by the accused, after demanding and accepting

Rs.10,000/- prior to that. PW1 asserted that he paid

Rs.10,000/- to the accused on September 5, 1997 at the office

of the accused, as the compensation awarded was more than

Rs.20 lakh and on that date, the Special Tahsildar (PW3)

issued the cheque for Rs.7,68,311/- being part of the

compensation amount awarded.

14. The version of PW1, that he visited the office of the

accused and received the cheque, as mentioned above, was not

disputed by the accused and this aspect as could be discernible

from Ext. P2, the file pertaining to the same. In fact, there were

two land acquisition proceedings against PW1, viz., 2025:KER:72764

CRL.A.NO.1473 OF 2006

LAC672/96 and LAC688/96. Ext. P2 was the file of

LAC688/96. In page 109 of that file, PW1 had acknowledged

the receipt of the said cheque on September 5, 1997, which is

not disputed. All these facts clearly proved the version of PW1

that he met the accused on September 5, 1997 and paid

Rs.10,000/- and only thereafter, PW3 issued that cheque. In

fact, nothing extracted during cross-examination of PW1 that

he had any grudge or animosity towards the accused. Thus,

the learned Special Judge believed the evidence of PW1

regarding the prior demand and acceptance of bribe by the

accused, as alleged by the prosecution.

15. The counsel for the accused argued that the award

was passed in 1996, that thereafter accused could not do

anything in respect of that award and that therefore, the

version of PW1 that the accused came to inspect his lands

and demanded bribe could not be believed. PW1 had

explained that after passing award, he complained to District 2025:KER:72764

CRL.A.NO.1473 OF 2006

Collector and thereafter, the accused came to inspect the

lands. That apart, during cross-examination of PW1, when the

learned counsel for the accused attempted to extract evidence

to the effect that the accused had not demanded any amount

from PW1, PW1 reiterated that the accused demanded bribe

of Rs.25,000/- when he came to inspect the land which was

meant for acquisition. During cross-examination, he reiterated

that the said demand was made by the accused at his office

also. In fact, as already discussed, the evidence of PW1 was

not shaken during cross-examination.

16. PW2 examined in this case is the then Assistant

Engineer, PWD, the independent witness, who participated in

the pre and post trap proceedings. PW2 testified that, he

appeared before the Dy.S.P., Vigilance, on the date of trap. On

September 18, 1997 afternoon, he along with the Vigilance

team, including PW1 and other independent witness

proceeded to the office of the accused in Angamaly in two 2025:KER:72764

CRL.A.NO.1473 OF 2006

vehicles. In the night at about 10 PM, they reached near

Aluva and took rooms at Thettayil Tourist Home at Paravoor

Junction. In the morning at about 10 O' clock, PW7 called

PW1, PW2 and CW5 to his room and explained about the

significance of Phenolphthalein-Sodium Carbonate test.

Thereafter, at about 10.30 AM, they proceeded to the office of

the accused. Then as instructed by PW7, PW1 went inside

the office of the accused. After sometime PW1 came outside

and gave the pre-arranged signal by scratching his head.

Thereafter, PW7, PW2, CW5 and the members of the trap

team entered the office of the accused. PW7 asked the

accused whether he had received the amount from PW1. The

accused answered in the affirmative and said that he had kept

the amount in his right side pocket of the pants. PW7 then

took sodium carbonate solution in a glass and dipped his

fingers in it and there was no colour change. He identified the

said solution as MO2. Then the right hand fingers of the 2025:KER:72764

CRL.A.NO.1473 OF 2006

accused were dipped in a separate sodium carbonate solution,

soon the colour of the solution turned pink. He identified the

said solution as MO3. On the instruction of PW7, PW2 took

MO1 series currency notes from the right pocket of the pant of

the accused. They compared the numbers and denomination

of those currency notes with the numbers mentioned in

Ext.P1(a) and found the same were one and the same. The

corners of those notes when dipped in sodium carbonate

solution, the solution showed pink colour change. MO4 was

that said solution. The pants of the accused was taken after

giving a dhothi to him and when the right side pocket portion of

the pants was sprinkled with sodium carbonate solution, the

said portion showed pink colour change and he identified MO5

as the said solution.

17. PW6 and PW7 are the then Dy.S.P.s of Vigilance

Headquarters Unit who laid the trap. PW6 testified that at about

11 AM on September 18, 1997, PW1 came to his office and gave 2025:KER:72764

CRL.A.NO.1473 OF 2006

Ext.P1 First Information Statement. Acting on the same, he

registered Ext.P1(a) F.I.R. According to him, MO1 series

currency notes were produced by PW1 and PW6 noted the

numbers and denomination of trap money in Ext.P1(a) itself and

then phenolphthalein powder was smeared on MO1 series

currency notes entrusted to him. Then the same were placed in

the left pocket of the shirt of PW1 and thereafter, PW1, the

independent witnesses and trap team members were sent to

PW7 for further proceedings in this case.

18. The learned counsel for the accused argued that

PW6 admitted in cross-examination that PW1 came to his office

on 17-9-1997 and that therefore, the version of PW6 that Ext.P1

was recorded on 18-9-1997 cannot be believed and that the

accused is entitled to acquittal on that ground. When cross-

examined, PW6 stated that on 17-9-1997, PW1 met the

Superintendent of Police and he did not meet him. His evidence

on that aspect was supported by PW1 and PW7, another Deputy

Superintendent of Police of Vigilance Headquarters Unit who laid 2025:KER:72764

CRL.A.NO.1473 OF 2006

the trap and conducted investigation. Therefore, this contention

is not sustainable.

19. Apart from their evidence, the evidence of PW3, who

earlier arrayed in the FIR as an accused, was given emphasis by

the prosecution to prove the contents of Exts.P2 and P4 files

pertaining to the acquisition. The learned counsel for the

accused argued that the evidence of PW3, who is one among

the co-accused, on various stages of this case, as mentioned

herein above, could not be relied on. Shockingly, the learned

counsel himself relied on the evidence of PW3 to hold that all

the three accused persons in the FIR were together visited the

property for assessing the valuation, where the learned Public

Prosecutor argued that the entire documents regarding valuation

as per Exts.P2 and P4 were prepared by the accused. Anyhow,

Exts.P2 and P4 are public documents. PW3 deposed that Exts.

P2 and P4 files of his office relating to the acquisition of land of

PW1. Ext.P4(a) was page No. 1 in Ext.P4 file which is the

Mahazar of the land of the accused. Ext.P4(b) was the sketch of 2025:KER:72764

CRL.A.NO.1473 OF 2006

that land. Ext.P4(c) was the list of the improvements therein.

Ext.P4(d) was the 'Thandaper kanakku' of that land. Ext.P4(e)

was the award. Ext.P4(f) was the notice issued to PW1. The

award was for Rs.20,48,832/-, In Exts. P4(a), P4(b), P4(c) and

P4(d), accused had signed. In Exts.P4(e) and P4(f), PW3 had

signed. Similarly in Exts. P2(b) to P2(g), accused had signed. In

that case, the award was for Rs.7,68,311/-. Ext. P2(h) was the

award issued to PW1. Ext.P2(i) was the notice. Ext. P2(k) was

the petition filed by PW1 for issuance of the cheque. On the

back of the same, PW3 endorsed that a cheque for

Rs.7,68,311/- was issued to PW1 on September 5, 1997.

Ext.P2(a) was the receipt for having received the cheque. Thus,

these documents would clearly show that on September 5, 1997

PW1 had received the cheque from PW3 which probabilise the

version of PW1 that he had met the accused on that date.

Further Exts. P2 and P4 files would show that the accused was

actively involved in assessing the compensation of the land and

he had prepared the valuation thereof.

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CRL.A.NO.1473 OF 2006

20. It is relevant to note that in order to prove Exts.P2(a),

(b) and (c), PW4, the then Valuation Assistant in the office of the

accused, also was examined. She deposed that she was

present at the time of the trap in the office of the accused and

had seen PW1 entering to the office of the accused and coming

out after some time. However, even though she was cross-

examined to disbelieve the version, the same was not

succeeded and the evidence of PW5 also would fortify the

prosecution case as to arrival of PW1 in the office of the accused

on the date of trap on 19.09.1997 and the presence of the

accused on the date of trap at the office.

21. According to the learned counsel for the

appellant/accused, during cross-examination, PW1 had given

evidence that, he had attempted to make his property, which was

under acquisition, originally as wet land to dry land, but accused

Nos.1 to 3 in the FIR not allowed the same. According to him,

because of this denial, PW1 was in inimical terms with the

accused and accordingly, a false trap case was foisted. But 2025:KER:72764

CRL.A.NO.1473 OF 2006

when this aspect was suggested to PW1 that he was in inimical

terms with the accused, on this count, PW1 readily answered

that he had no grievance in this regard.

22. Now, it is necessary to address the essential 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:

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, 2025:KER:72764

CRL.A.NO.1473 OF 2006

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

(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 2025:KER:72764

CRL.A.NO.1473 OF 2006

but which may extend to ten years and shall also be liable to fine.

23. 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 (Govt. of N.C.T. of Delhi), 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 2025:KER:72764

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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 2025:KER:72764

CRL.A.NO.1473 OF 2006

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 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 2025:KER:72764

CRL.A.NO.1473 OF 2006

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 witness who can again let 2025:KER:72764

CRL.A.NO.1473 OF 2006

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."

24. 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 2025:KER:72764

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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 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 2025:KER:72764

CRL.A.NO.1473 OF 2006

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.

25. In paragraph No.12 of the decision in Sunil Kumar's

case (supra), this Court observed the ingredients, as already

extracted.

26. Coming to the contention raised by the learned

counsel for the accused/appellant, in the decision in

Pounammal K.'s case (supra), where the Apex Court modified

the sentence for the period already undergone, i.e., the sentence

lesser than the statutory minimum, it could be gathered that the

Apex Court exercised the said power under Article 142 of the 2025:KER:72764

CRL.A.NO.1473 OF 2006

Constitution of India. In this connection, it is relevant to refer

another decision of the Apex Court in Dashrath v. State of

Maharashtra, reported in 2025 KHC 6456, where the Apex

Court considered the question as to whether power conferred

under Article 142 of the Constitution of India can be exercised to

reduce a minimum sentence prescribed in the Statute. In the

said decision, the Apex Court held that the excise of power

conferred by Article 142, in a case such as the present where a

minimum sentence is prescribed by the statute, cannot be

tinkered, for, the same would amount to legislation by the Court;

and, prescription of a term of sentence quite contrary to what the

Parliament has legislated would be legally impermissible. The

statutory prescription in relation to punishment for a minimum

period, unless challenged, cannot be reduced by this Court even

in exercise of powers under Article 142 of the Constitution.

27. Going by the decision in Dashrath's case (supra),

the power under Article 142 of the Constitution of India also

could not be invoked to reduce a sentence than the minimum 2025:KER:72764

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sentence provided by the statute, as the same would amount to

legislation by the Court overstepping on the domain of the

legislature, which is impermissible.

28. Following the decision in Pounammal' s case

(supra), referred by the learned counsel for the

appellant/accused also, this Court cannot reduce the sentence

beyond the statutory minimum, since no power under Section

142 of the Constitution of India bestowed on this Court.

Therefore, this contention could not be appreciated in the matter

of sentence.

29. On scrutiny of the evidence, it could be gathered that

the evidence of PW1 not at all shaken during cross-examination

to disbelieve his version as to demand and acceptance of

Rs.10,000/- by the accused on 05.09.1997 as well as

Rs.15,000/- on 19.09.1997. Even though it is argued by the

learned counsel for the accused/appellant that there was delay

in producing the FIR before the court, it is discernible that the

trap was laid in Ernakulam district whereas the FIR was 2025:KER:72764

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registered in Thiruvananthapuram. The FIR available in this case

was not clear to read when the FIR was received by the Court

and the same was in a dilapidated condition. Even if it is

accepted that the FIR was received only on 20.09.1997 by the

Court, considering the fact that, the trap was on 19.09.1997, the

delay is too short or no substantive delay. Therefore, this aspect

has no much significance to hold that the same is fatal to the

prosecution.

30. On re-appreciation of the relevant evidence, relied on

by the Special Court to find commission of offences under

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

Act, 1988 by the accused, it is discernible that the Special court

rightly appreciated the evidence available to hold that the

accused initially accepted Rs.10,000/- on 05.09.1997 and

thereafter, again, demanded and accepted Rs.15,000/- on

19.09.1997 as illegal gratification to establish the ingredients to

find commission of the above offences. In such view of the

matter, the conviction imposed by the Special Court is only to be 2025:KER:72764

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confirmed.

31. Coming to the sentence, the same can be modified

considering the request of the learned counsel for the appellant,

to the statutory minimum.

32. In the result, this criminal appeal stands allowed in

part. The conviction imposed by the Special Court is confirmed,

but the sentence stands modified as under:

(i) The appellant/accused is sentenced to undergo

Rigorous Imprisonment for one year and to pay a fine of

Rs.50,000/- (Rupees Fifty thousand only) for the offence

punishable under Section13(1)(d) read with Section 13(2) of the

PC Act, 1988, in default of payment of fine, the

appellant/accused shall undergo Rigorous Imprisonment for a

further period of three months.

(ii) The appellant/accused is sentenced to undergo

Rigorous Imprisonment for a period of six months and to pay a

fine of Rs.35,000/- (Rupees Thirty five thousand only) for the

offence punishable under Section 7 of the PC Act, 1988,in 2025:KER:72764

CRL.A.NO.1473 OF 2006

default of payment of fine the appellant/accused shall undergo

Rigorous Imprisonment for a further period of two months,