Kerala High Court
Sam David vs State Of Kerala on 10 October, 2025
CRL.A NO. 244 OF 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF OCTOBER 2025 / 18TH ASWINA, 1947
CRL.A NO. 244 OF 2011
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.12 OF 2007 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
APPELLANT:
SAM DAVID
FORMERLY ASSISTANT ENGINEER,BLOCK PANCHAYATH OFFICE,
PERUMKADAVILA,, THIRUVANANTHAPURAM.
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,, ERNAKULAM. (CRIME NO. VC-6/2003/TVM VIGILANCE
AND, ANTICORRUPTION BUREAU, THIRUVANANTHAPURAM).
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
SPL PP VACB ADV.RAJESH .A, SRPP VACB ADV.REKHA.S
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.09.2025, THE COURT ON 10.10.2025 DELIVERED THE FOLLOWING:
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"C R"
A. BADHARUDEEN, J
=======================
Crl.Appeal No. 244 of 2011
======================
Dated 10th day of October. 2025
JUDGMENT
The sole accused in C.C.No. 12 of 2007 on the files of the
Enquiry Commissioner and Special Judge, Thiruvananthapuram is the
appellant and he assails the conviction and sentence imposed against him
in the above case dated 31.01.2011. The State of Kerala representing the
Vigilance and Anti-Corruption Bureau (for short, 'VACB') is the
respondent herein.
2. Heard the learned counsel for the appellant/accused and the
learned Special Public Prosecutor appearing for the VACB in detail.
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Perused the verdict under challenge as well as the records of the special
court in detail.
3. The prosecution alleges commission of offences punishable
under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act, 1988 (for short, 'the PC Act, 1988' hereafter) by the
appellant/accused. The specific allegation is that the appellant/accused
while working as an Assistant Engineer in the Perumkadavila Block
during March 2003 as such being a public servant abused his official
position and demanded gratification, other than legal remuneration,
from Sri Alosious @ Sathi, S/o Sathyanesan, Kandamthitta Kuzhivila
Veedu, Mukundara Desom, Vazhichal Village, Neyyattinkara Taluk, on
26.03.2003 at the Block Office, Perumkadavila. The amount demanded
by the appellant/accused was 10% of the bill amount of ₹63,500/-,
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which was due to the said Sri.Alosious for the construction of an
Anganwadi building carried out by him at Neyyar Dam. The
appellant/accused demanded the said amount as an inducement for
preparing the bill for ₹63,500/-. He repeated the demand to Sri Alosious
on 29.03.2003 at his office and, when Sri Alosious expressed his financial
difficulties, he reduced the demand to ₹6,000/- and directed him to pay
this amount on 31.03.2003. Pursuant to the earlier demand at about
6.45 p.m on 31.03.2003 the appellant/accused again repeated the
demand at his office and as a sequel thereof, he accepted ₹6,000/- from
Sri Alosious.
4. On filing of the final report, the Special Judge took cognizance
of the matter and proceeded with trial. During trial, PWs 1 to 8 were
examined and Exts.P1 to P16 along with MOs1 to 7 were marked on the
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side of the prosecution. Ext.D1 was marked on the side of defence as one
contradiction.
5. The learned counsel for the appellant/accused argued that there
are lapses in the prosecution evidence and the learned Special Judge
found that the appellant/accused had committed the offences
punishable under Sections 7 and 13(2) read with 13(1)(d) of the PC Act,
1988, ignoring the laches in the prosecution evidence. It is argued by the
learned counsel for the appellant/accused that this case was foisted at the
instance of PW1, the complainant, who was a member of the Youth
Congress, in collusion with PW3, who was working as an overseer in the
Block Panchayat Office, to trap the appellant/accused since he was not
willing to heed the illegal demands of PWs 1 and 3. In this connection,
the learned counsel read out the deposition of PW3. It is further argued
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that, according to the prosecution, the appellant/accused demanded
illegal gratification of ₹6,000/- from PW1 in connection with the
construction of an Anganwadi. However, no material was collected or
produced by the prosecution to prove that the appellant/accused had
any supervisory role in this work. In addition, he argued that although
the trap party reached the office of the appellant/accused in the morning,
the trap was carried out only at about 6.45 p.m. on 31.03.2003. In the
meantime, it has come out in evidence that PW1 entered the accused's
office two or three times. The specific case of the appellant/accused is
that, in order to wreak vengeance, PW1--a contract worker--placed the
MO2 currency notes inside the MO3 book and left at the office of the
appellant/accused without his knowledge, thereby enabling the
Vigilance to trap him. It is also pointed out that, in this case,
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phenolphthalein examination of the hands of the appellant/accused
was not conducted, since the prosecution has no case that the
appellant/accused directly accepted the notes. However, the
prosecution alleges that the notes produced were placed by PW1, as
directed by the appellant/accused in a notebook marked as MO3. In
such circumstances phenolphthalein test should have been conducted on
the notebook to substantiate the prosecution case.
6. It is pointed out further that as per the evidence of PW6, who
was the Secretary of the Kallikkad panchayat during 2003, the
documents pertaining to the works undertaken by the panchayat
including measurement book would be in the custody of the Panchayat
and the same could not be given to anybody. According to him, when
the works pertain to an amount above ₹1 lakh, the measurement would
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be done by the Assistant Executive Engineer, and when the works
pertain to an amount above ₹50,000/- the same would be measured by
the Assistant Engineer. He further stated that the completion certificate
for the work would be issued by the Panchayat President. However, as
deposed by PW1 in this case, the completion certificate was issued by the
Ward Member. Highlighting these anomalies the learned counsel pressed
for interference in the verdict of the trial court by giving benefit of doubt
to the appellant/accused. The learned counsel placed decision of this
Court reported in 2022 (5) KLT 433 Ajith Kumar v. State of
Kerala with reference to paragraphs 33-35 and 50-54 to contend that
failure to conduct phenolphthalein test on MO3 notebook is fatal to the
prosecution case.
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7. In addition to that another decision of the Apex Court
reported in (2007) 8 SCC 246 K Subba Reddy v. State of Andhra
Pradesh to contend that while acquitting the 2nd appellant/accused in
the crime in a case where conviction and sentence of the 1st
appellant/accused were confirmed earlier, the Apex Court held that
when the allegation is the return of the stock register when it is proved
that the appellant/accused had no role to play in the return of the stock
register the same would give benefit to the appellant/accused and
accordingly the 2nd appellant/accused was acquitted. This decision has
been pointed out to buttress his point that in the instant case the
appellant has no role in the work involved.
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8. Another decision reported in 2015 (3) KLT 989 Prakash
Pai v. State of Kerala has been placed with reference to paragraph
No.17 wherein this Court held as under:-
"17. The learned trial Judge relied on some decisions of the
Hon'ble Supreme Court to apply the presumption under
S.20(1) of the P.C. Act. The Hon'ble Supreme Court has
explained in so many decisions that the pre-requisite to apply
the said presumption is that there must be evidence to show
acceptance of illegal gratification by the accused. Even when
such demand and acceptance is proved, what is presumed
under S.20(1) of the P.C. Act is not the guilt of the accused.
What is presumed is only the purpose for which the
gratification was received by the accused. But here, even the
purpose cannot be presumed, because the whole prosecution
case is doubtful. Lakshmi underwent the pre-requisite tests
only on 28.7.1998 and 3.8.1998. PW6 is definite in evidence
that there is no question of scheduling an operation or
deciding an operation in such cases, without and before
conducting the pre-requisite anesthetic test and gynaecological
test. In such a situation, where the Doctor had no occasion to
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demand gratification or receive gratification before and
without conducting the pre-requisite tests for scheduling the
operation, or without identifying Lakshmi as a case of
ovarian cyst requiring an operation, the court cannot presume
that anything was received or demanded by the accused as a
motive or reward for conducting an operation. The
prosecution case is really doubtful. The evidence of PW1
assumes importance that one Bhaskaran was in fact behind
the complaint, that he had not brought any amount for
payment to the Doctor, and that the amount he actually
placed on the table of the Doctor was arranged by somebody. A
vicious trap will have to be doubted in the above
circumstances. When the prosecution is based on a trap, it
must be the concern of the court to examine the whole
materials, and find whether the trap is a genuine trap
arranged by the police on a genuine complaint or whether it is
a vicious trap which the police happened to make on a
mischievous complaint by somebody to trap the public
servant."
9. Repelling this argument, the learned Special Public Prosecutor
submitted that, in this case, the case of the prosecution is not as argued
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by the learned counsel for the appellant/accused. The prosecution case is
that the appellant/accused demanded 10% of the bill amount, totaling
₹63,500/-, from the complainant in order to prepare and encash the bill
for the work executed by him. According to the learned Special Public
Prosecutor, PW8, the investigating officer had given categorical evidence
that the appellant/accused was the only officer available to handle the
work and to pass the bill. That apart, PW1 gave evidence that when he
inquired at the Panchayat after the earlier Assistant Engineer was
relieved, he was advised to meet the appellant/accused on the assurance
that the appellant/accused would look after the work thereafter. It is
also pointed out that, in this case, the evidence of PW1 supported by
PW5 regarding the demand and acceptance of bribe by the
appellant/accused, is well-established by substantive evidence. In such a
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situation, the mere non-conduct of phenolphthalein test on the
notebook is of no significance. It is further pointed out that, on
scrutinizing the evidence of PW3, it has been revealed that he was
authorized by the appellant/accused to check and measure the work,
even though he was not properly authorized to do so, as such work
should have been carried out by the Assistant Executive Engineer. That
apart from the evidence of PW3, the argument advanced by the learned
counsel for the appellant/accused that he had colluded with PW1 and
manipulated the case could not be established and this contention was
raised to disbelieve the reliable evidence of PW3, the official witness,
since his evidence which is totally against the accused/appellant. It is also
submitted that, in the prosecution evidence, there is no iota of doubt to
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be adjudged in favour of the appellant/accused, since the prosecution
case stood proved beyond reasonable doubts.
10. On appraisal of the rival contentions, the following questions
arise for consideration.
1. Whether the special court rightly entered into the conviction
and sentence on the finding that the appellant/accused
committed offence punishable under Section 7 of the PC
Act, 1988?
2. Whether the special court is justified in holding that the
appellant/accused committed offence punishable under
Section 13(1)(d) r/w 13(2) of the PC Act, 1988?
3. Whether the verdict under challenge would require
interference?
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4. The order to be passed?
Points Nos. 1 to 4:-
11. While addressing these points the relevant evidence to be
gone through. PW1 examined in this case is the complainant. He
deposed that he was the beneficiary-convener for the construction of
Anganwadi Building No. 51 in Ward No. 5 (Neyyar Dam Ward) of
Kallikkadu Grama Panchayat. According to him, as per the terms of the
work, an amount of ₹22,500/- and rice worth ₹14,000/- were paid as
advance. PW1 stated that he had started the work when another person
was serving as the Assistant Engineer. That person was either transferred
or had retired from service, and in such contingency in the absence of an
Assistant Engineer the work was delayed for some time. He contacted
the Panchayat authorities and was informed that the appellant/accused,
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the Assistant Engineer of Perumkadavila Block Panchayat, was in charge
of this particular work and he would take measurements of the work
already done by PW1. He immediately contacted the appellant/accused
at his office at the Perumkadavila Block Panchayat Office. When he first
met the appellant/accused, the construction of the building was not yet
completed. Later, after completing the construction, he again contacted
the appellant/accused-Assistant Engineer. Then the
appellant/accused informed him that the measurement would be taken
by him through the overseer of his office, who was none other than PW3
in this case. According to PW1 then the measurements of the work were
taken by PW3, the Overseer of the Perumkadavila Block Panchayat
Office, as directed by the appellant/accused . PW1 deposed that after
the measurements were taken through PW3, he contacted the
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appellant/accused for passing his bill, whereupon the
appellant/accused demanded 10% of the bill amount as commission.
Even though PW1 expressed his inability to pay the bribe and explained
his financial constraints, the appellant/accused was not willing to pass
the bill without receiving the 10% commission. PW1 testified that,
despite contacting the appellant/accused continuously for three days,
the appellant/accused did not yield to his request. Thereafter, the
appellant/accused reduced the demand to Rs.6,000/- (Rupees Six
Thousand only) and insisted PW1 pay this amount for getting the bill
passed. PW1 further stated that on the next day, or at the latest the third
day after this demand, he approached the office of PW8, the Dy.S.P.,
VACB, Thiruvananthapuram, and lodged Ext.P2 First Information
Statement. He also submitted Ext.P1 complaint before PW8 on
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30.03.2003. According to PW1, the appellant/accused had directed
him to pay the amount of Rs.6,000/- (Rupees Six Thousand only)
before 31.03.2003. He further stated that he obtained Ext.P3
completion certificate from the ward member, as instructed by the
appellant/accused. He also deposed about entrustment of Rs.6,000/-
(Rupees Six Thousand only) marked as MO2 by him to PW8, the DySP
and entrusted back to him after smearing phenolphthalein over the
same. According to PW1, he alighted from the jeep at Perumkadavila
and proceeded to the office of the appellant/accused by bus, alighting in
front of the accused's office. He further stated that he entered the office
of the appellant/accused and spoke with another person, after which
the appellant/accused directed him to wait outside. PW1 deposed that
when the stranger inside the office left, he again entered the office, and
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the appellant/accused informed him that there was heavy rush in the
office and that he would attend to him shortly. At that juncture,
according to PW1, the appellant/accused asked him whether he had
brought the money demanded. PW1 further stated that there was heavy
rush outside the office, and those standing outside could watch the
proceedings through the window. The appellant/accused therefore
informed him that he would attend to him after the ease of rush. By that
time, it was around 11:00 a.m., and PW1 went outside and waited in the
verandah in a position from which the appellant/accused could clearly
see him from inside the office. PW1 further stated that the
appellant/accused left the office after closing the doors and returned
within five to ten minutes. PW1 again entered the office, but the
appellant/accused directed him to come after the lunch break. PW1
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returned at about 1:30 p.m., at that time the appellant/accused was still
present in the office. According to PW1, one Sambasivan, examined as
PW4 in this case, came to visit the appellant/accused . PW4 entered the
room and spoke with the appellant/accused for some time. Thereafter,
PW1 was called inside, and according to him, PW4 asked whether he had
brought the money demanded by the appellant/accused. The
appellant/accused then directed PW1 to hand over the money to PW4
at a place outside the office. PW1 stated that he was unwilling to hand
over the money to PW4 and informed him that he had sent another
person to obtain a loan in order to pay the amount to the
appellant/accused. He added that he had stated this to avoid the
presence of PW4 during the transaction. PW4 again entered the office,
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came out, and informed PW1 that the appellant/accused was busy with
other matters and would call him after the rush was over.
12. PW8, the Dy.S.P., VACB, Thiruvananthapuram Unit, deposed
that on 30.03.2003, at about 3 p.m., PW1 came to his office and gave
Ext.P2 First Information Statement to the effect that the
appellant/accused had demanded bribe of Rs.6,000/- (Rupees Six
Thousand only). PW8 stated that he registered Ext.P2(a) FIR. After
registering the FIR, PW1 informed him that he had also brought a
written complaint, and accordingly Ext.P1 complaint was appended by
PW8 along with Ext.P2(a) FIR. Since PW1 did not have the amount of
Rs.6,000/- (Rupees Six Thousand only) with him on 30.03.2003, he
informed PW8 that he would bring the money the next morning, i.e., on
31.03.2003. PW8 further stated that he sent a letter on 30.03.2003 to the
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Additional District Magistrate requesting the presence of two gazetted
officers to witness the trap. Pursuant to this request, PW2 and CW2
gazetted officers--appeared before PW8 at about 7.30 a.m. on
31.03.2003 at his office.
13. PW2 was the Special Tahsildar, Land Acquisition,
Kesavadasapuram, during 2003. He, along with CW2, who was also
Special Tahsildar, Land Acquisition, PWD Southern Circle, appeared
before PW8 on 31.03.2003 at about 8 a.m. Since CW2 passed away at
the time of evidence he could not be examined in this case.
14. Corroborating the evidence of PW1, PW3 deposed that he was
the Overseer of the Perumkadavila Block Panchayat Office during 2003
and that, during his tenure, the appellant/accused was the Assistant
Engineer. He had testified that the Kallikkadu Panchayat was within the
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jurisdiction of the Perumkadavila Block Panchayat. According to him,
works up to ₹50,000/- have to be measured by the Overseer, whereas
works above ₹50,000/- have to be measured by the Assistant Engineer.
He further stated that, for the works carried out under the Grama
Panchayat, the assistance of the Assistant Engineer of the Block
Panchayat was sought by the Grama Panchayat, as per a letter issued
from the Panchayat either to the Assistant Engineer or to the Block
Development Officer. The crucial evidence of PW3 would show that for
all works above ₹50,000/-, the supervision of the work, its
measurements, preparation of bills, and related tasks would be at the
helm of the Assistant Engineer. PW3 deposed that he was aware of the
construction of Anganwadi Building No. 51 in the 5th Ward, i.e., the
Neyyar Dam Ward of Kallikkadu Grama Panchayat. He identified
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Ext.P7 as the record of the measurements taken by him in respect of the
aforesaid work of Anganwadi Building No. 51 in Ward No. 5 of
Kallikkadu Grama Panchayat. He added that Ext.P7 was prepared in his
own handwriting and that he had visited the site and taken the actual
measurements for its preparation. He testified further that he had
perused Ext.P8, the estimate for the said work, before taking the
measurements recorded in Ext.P7. He stated that it was actually the duty
of the appellant/accused, the Assistant Engineer, to take the
measurements in accordance with the Ext.P8 estimate, and that, as
directed by the appellant/accused, he visited the work site of
Anganwadi Building No. 51 in Ward No. 5 of Kallikkadu Grama
Panchayat and took the measurements recorded in Ext.P7. He further
stated that he had also seen Ext.P5, the copy of the Measurement Book,
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before taking the measurements for Ext.P7. He added that he could not
state with certainty who was the Assistant Engineer who had signed
pages 1 to 7 of Ext.P5. He admitted that in page 7 of Ext.P5 the
measurements had been check-measured by the Assistant Executive
Engineer, DRDA, Thiruvananthapuram. According to him, the work
measured by him excluded the works covered in pages 1 to 7 of Ext.P5.
He further stated that he prepared Ext.P7 only to assist the
appellant/accused and that on previous occasions also he had assisted
the Assistant Engineer in taking measurements. He further stated that
on 27.03.2003 the appellant/accused was locked up in his office in
connection with a dispute regarding certain bill matters. During
cross-examination he admitted that Ext.P7 did not specify the work. He
also stated that he could not say who appointed the Assistant Engineer
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of Nemom to take the measurements recorded in Ext.P5. He added that
when he prepared Ext.P7, PW1 was present, and according to him, he
suggested payment of an amount of Rs.63,500/- (Rupees Sixty-Three
Thousand Five Hundred only) for the works actually undertaken as
reflected in Ext.P7. PW2, the Gazetted Officer confirmed that he was
present before PW8 at 08.00 a.m. on 31.03.2003 in compliance with the
order of the District Collector. He testified that PW8 explained the
details of the case to the witnesses. PWs 1, 2, and 8 stated that the
reaction of phenolphthalein powder in lime water was demonstrated to
them. A ten-rupee note was taken, smeared with phenolphthalein
powder, and handed over to a police constable. When the constable
dipped his fingers in lime water, the liquid turned pink. The same
ten-rupee note was also dipped in lime water, and there was a pink
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colour change both in the lime water and on the note. The liquid was
collected in a bottle, sealed, numbered as 'A', and signed by PW2, CW3,
and PW8. This bottle was identified by these witnesses as M.O.1. It is
further stated by these witnesses that PW1 produced an amount of
Rs.6,000/-, comprising one 1,000/- rupee note, nine 500/- rupee notes,
and one 100/- rupee note. The serial numbers of these currency notes
were recorded in a mahazar. The notes were smeared with
phenolphthalein powder and placed inside the left pocket of PW1, with
instruction not to handle the same unless demanded by the
appellant/accused. A mahazar was prepared documenting all these
details and Ext.P4 was the mahazar pertaining to the same. PW2 was the
second signatory, and PW1 was the third signatory to Ext.P4.
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15. PWs 1, 2, and 8 stated that they proceeded from the office of the
Dy.S.P., Vigilance (PW8), to the office of the appellant/accused at
about 9:30 a.m. On the way, at Neyyattinkara TB Junction, the vehicle
was stopped, and PW1 was instructed that if the appellant/accused
accepted the bribe money, he should give signal by wiping his face with a
handkerchief. PW2 stated that he, along with CW2 and the police
constables, positioned themselves in such a way that they could observe
the activities inside the accused's office. He further stated that although
PW1 initially went inside the office, he later came out and waited in the
verandah. PW2 testified that he could clearly see the interior of the office
through both the front door and the window. PW8, the Dy.S.P., stated
that he directed the witnesses to the office of the appellant/accused and
waited outside the office compound.
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16. PW2 and PW8 stated that by about 11:00 a.m., PW2 was called
back to avoid any doubts arising from the presence of additional persons
near the office of the appellant/accused. The presence and intervention
of PW4 as stated by PW1 is corroborated by the evidence of PW4. He
admitted that he had been examined before the Magistrate regarding
these incidents and had narrated the entire episode, which was read over
to him. He confirmed that the statements recorded by the Magistrate
were correct. It is true that the statement under Section 164 Code of
Criminal Procedure was recorded by the Judicial First Class Magistrate.
PW4 admitted the statement recorded before the Magistrate, confirming
that it was read over to him and that he understood that the same
reflected his actual versions. PW4 further stated that he was acquainted
with PW1 and had also seen him at the office of the appellant/accused.
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He testified that on the day the appellant/accused was arrested, he, along
with one Shaji, went to the office of the appellant/accused in relation to a
work undertaken by Sri.Shaji as convener. He stated that at about 2:00
p.m. on 31.03.2002, when he visited the accused's office, he saw PW1 at
the verandah. He and Shaji entered the office, and then PW1 also came
inside. The appellant/accused instructed PW4 to receive the money
from PW1. PW4 testified that he did not receive the money because
PW1 informed him that another person had gone to obtain the amount
as loan. PW4 further stated that he then left for Thiruvananthapuram
and learned the next day that the appellant/accused was arrested.
According to PW4, his statement was recorded by the Magistrate and the
statement so given was true and correct. During cross-examination, he
admitted that he was the appellant/accused in C.C.35/2005 registered
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by the Vigilance Police, and that for that purpose he had been called to
the Vigilance Office several times. He stated that the Dy.S.P. informed
him that his name would be excluded from the said case if he was willing
to give such a statement. He further stated that the Magistrate asked
whether he was giving the statement voluntarily or under direction from
any other person. PW4 added that what he stated before the Magistrate
was based on facts narrated to him by the Investigating Officer. During
re-examination by the learned Legal Adviser, he admitted that he did not
know who was the Investigating Officer who registered the case against
him.
17. Apart from the evidence of PW1 the prosecution relied on
PW5 the police constable who was one among the members of the trap
party led by PW8 and he deposed that he, along with the Head
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Constable, Sub-Inspector, and two official witnesses, waited in front of
the office of the appellant/accused and witnessed the entire
proceedings. According to him, there were two windows on the
northern and eastern sides of the front door of the room of the
appellant/accused. There was also a half-door, and he was positioned
by the side of one of the windows. He stated that even if the half-door
was closed, he could see the incidents occurring inside the room through
the window. He waited there from 10:30 a.m. He further stated that
between 11:00 a.m. and 1:30 p.m., PW1 entered the accused's room
twice and returned. According to him, after 2:00 p.m., one person
entered the accused's room, and thereafter PW1 was called inside; then
the former person then left the room. He further stated that, two days
prior to the occurrence, news items appeared in newspapers describing
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the appellant/accused as a corrupt person, and for that reason, he was
directed by the Dy.S.P. to be present there by wearing a lungi and shirt.
18. PW6 was the Secretary of Kallikkadu Grama Panchayat during
2003. He was examined to prove that he had received the records back
from the Investigating Officer as per Ext.P12 Kaichit. During
cross-examination, he stated that the custodian of the M Book was the
Panchayat and that it would not be handed over to the convener. He
added that all works above ₹50,000/- have to be measured by the
Assistant Engineer. PW6 further stated that the work relating to
Kallikkadu Grama Panchayat was supervised by the Assistant Engineer
of Perumkadavila Block. He added that, as per Ext.P5, the Assistant
Engineer of the Special Building Section No. III, Nemom,
Thiruvananthapuram, measured the work of PW1 in March 2002,
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which was check-measured by the Assistant Executive Engineer, DRDA,
Thiruvananthapuram, as seen from Ext.P5. During re-examination, he
stated that for passing the final bill, it must be approved by the Assistant
Engineer.
19. While appreciating the evidence of PW4 the special court
found that PW4's statements regarding being called several times to the
Vigilance Office, being informed that he would be excluded from
C.C.35/2005, and that his statements were based on facts narrated by
the Dy.S.P., were false and concocted to assist the appellant/accused.
However, during chief-examination, he admitted all the facts stated by
him before the Magistrate and narrated the entire incident that occurred
at 2:00 p.m on 31.03.2003. He also admitted that he had visited the
office of the appellant/accused at 2:00 p.m. on 31.03.2003 in
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connection with the passing of the bill of his friend Shaji, and that the
said bill was passed by the appellant/accused and subsequently
encashed. Moreover, PW4 reiterated before this Court what he had
stated before the Magistrate. In these circumstances, his claim that the
statement before the Magistrate was made at the direction of the Dy.S.P.
could not be accepted. Therefore, the evidence of PW4 corroborated the
version of PW1 regarding the presence of PW4 and his involvement in this
occurrence and the demand of bribe by the appellant/accused as alleged
by the prosecution.
20. In Ajith Kumar's case (supra) this Court given benefit of
doubt to the appellant/accused therein, in a case, where the
appellant/accused escaped from the room after realising that the
vigilance team had reached there through the back door and rubbed his
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left hand on the bark of a rubber tree and also on the Dhoti. In the said
case non-conduct of phenolphthalein test on the bark of the rubber tree
and Dhoti was found to be a material omission to record acquittal of the
appellant/accused. In fact the ratio of the decision has no application in
this case as the facts of the said case is different from the facts in the
present case. In the instant case, the prosecution alleges that the bribe
money was placed inside a book as instructed by the appellant/accused,
and the same was seized therefrom.
21. 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:-
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
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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 (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.
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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.
22. 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 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
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gratification and the subsequent acceptance as a matter
of fact. This fact in issue can be proved either by direct
evidence which can be in the nature of oral evidence or
documentary evidence.
(c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also
be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne in
mind:
(i) if there is an offer to pay by the bribe giver
without there being any demand from the public
servant and the latter simply accepts the offer
and receives the illegal gratification, it is a case
of acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the
public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe giver accepts the
demand and tenders the demanded
gratification which in turn is received by the
public servant, it is a case of obtainment. In the
case of obtainment, the prior demand for illegal
gratification emanates from the public servant.
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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
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,
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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 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."
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23. Thus, the legal position as regards to the essentials 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 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
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fact of demand has been proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the appellant/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
appellant/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.
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24. 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 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
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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 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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25. In this case, the prosecution relied on the evidence of PW1 to
prove the demand and acceptance of bribe by the appellant/accused at
6:45 p.m. on 31.03.2003 from PW1, for the purpose of preparing a bill
of Rs.63,500/- (Rupees Sixty-Three Thousand Five Hundred only) due
to PW1 for the construction of the Anganwadi building carried out by
him at Neyyar Dam. The case put forward by the appellant/accused is
that he had no role in dealing with the work, as the same was not
handled by him. However, the evidence of PW1, supported by the
testimony of PW3, the Overseer, would establish that, as authorised by
the appellant/accused, PW3 had measured the work for the purpose of
preparing the bill, and that the appellant/accused had demanded bribe
for finalising the bill and encashing the same. Since PW3 has given
categorical evidence supporting the prosecution case, as deposed by
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PW1 and PW8, the learned counsel for the appellant/accused
contended that the entire case was foisted at the instance of PW3.
However, nothing has been pointed out by the learned counsel for the
appellant/accused to show any animosity between the
appellant/accused and PW3, who was a subordinate officer under him,
so that PW3 to be inimical towards the appellant/accused. Therefore,
this contention cannot be appreciated. Even at all the works were
otherwise supervised or check-measured by the Assistant Executive
Engineer, DRDA, Thiruvananthapuram, as contended by the
appellant/accused, it is evident that, for the purpose of finalising the
bill, the measurement was taken by PW3 as directed by the
appellant/accused and accordingly bill preparation started. Though
PW3 was cross-examined at length with an attempt to shake his version,
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the same did not succeed in any manner. Apart from the evidence of
PW1, PW2, the Gazetted Officer, also deposed to the pre-trap as well as
post-trap proceedings, including the recovery of the bribe money from
the possession of the appellant/accused. Thus, the contention raised by
the learned counsel for the appellant to disbelieve the prosecution case
appears to be untenable. In this regard, the evidence of PW6, who was
the Secretary of Kallikad Grama Panchayat during 2003, to the effect
that the work had to be approved by the Assistant Engineer for passing
the final bill, also is relevant.
26. Regarding the contention raised by the learned counsel counsel
for the accused that prior to trap PW1 entered the room of the accused
two or three times, the categorical evidence of PW1 is that he entered so
in the presence of the accused as called by him. If so, the case put up by
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the accused that PW1 placed MO2 in the note book in the absence of
the accused also must fail.
27. Thus, on reappreciation of the evidence, it has to be held that
the Special Court rightly appreciated the evidence on record and found
that the appellant/accused had committed the offences punishable
under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988. The said conviction, therefore, does not
require any interference.
28. Coming to the sentence the special court imposed rigorous
imprisonment for a period of two years and to pay fine of Rs.2,500/-
(Rupees Two Thousand Five Hundred only) or the offence punishable
under section 7 of the PC Act, 1988 and in default of payment of fine
rigorous imprisonment for a period of two months also was imposed.
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Similarly for the offence punishable under section 13(2) r/w 13(1)(d) of
the PC Act, 1988 the appellant/accused sentenced to undergo rigorous
imprisonment for a period of two years and to pay fine of Rs.2,500/-
(Rupees Two Thousand Five Hundred only) and in default of payment
of fine the appellant/accused would undergo rigorous imprisonment
for a period of two months.
29. Having considered the facts and circumstances of the case, and
taking into account the prayer made by the learned counsel for the
appellant/accused seeking reduction of sentence, I am inclined to
reduce the sentence to the minimum permissible under law.
30. In the result this criminal appeal allowed in part. The
conviction imposed by the special court is upheld and the sentence
stands modified as under:-
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1. The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of six months and to pay fine of
Rs.2,500/- (Rupees Two Thousand Five Hundred only) for the
offence punishable under section 7 of the PC Act, 1988 and in
default of payment of fine the appellant/accused shall undergo
default rigorous imprisonment for a period of two weeks.
2. The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of one year and to pay fine of
Rs.2,500/- (Rupees Two Thousand Five Hundred only) for the
offence punishable under section 13(2) r/w 13(1)(d) of the PC
Act, 1988 and in default of payment of fine the appellant/accused
shall undergo default rigorous imprisonment for a period of two
weeks.
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31. The order suspending sentence and granting bail to the
appellant/accused is cancelled and his bail bond also is cancelled.
Accordingly, the appellant/accused is directed to surrender before the
special court forthwith to undergo the modified sentence.
32. If the appellant/accused 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
