Kerala High Court
Sunil Kumar K vs State Of Kerala on 12 September, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
CRL.A NO. 323 OF 2020
CRIME NO.2/2012 OF VACB, KASARAGOD, Kasargod
AGAINST THE ORDER/JUDGMENT DATED 25.02.2020 IN CC NO.153 OF
2016 OF COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THALASSERY
APPELLANT/ACCUSED:
SUNIL KUMAR K,
AGED 47 YEARS
S/O. MADHAVA, GANESH NILAYA, ANANGOOR, KASARGOD.
BY ADV SRI.NANDAGOPAL S.KURUP
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI-682 031.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
22.08.2025, THE COURT ON 12.09.2025 DELIVERED THE FOLLOWING:
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"C R"
A. BADHARUDEEN, J
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Crl. Appeal No. 323 of 2020
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Dated 12th day of September 2025
JUDGMENT
Being aggrieved by the conviction and sentence imposed
against the appellant/accused, who is the sole accused in C.C. No.
153 of 2016 on the files of the Enquiry Commissioner and Special
Judge, Thalassery, the present appeal has been filed by the
appellant/accused. The State of Kerala, represented by the Vigilance
and Anti-Corruption Bureau (VACB), is the respondent.
2. Heard the learned counsel for the appellant/accused as well
the learned Special Public Prosecutor in detail. Perused the records
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of the special court and the decisions placed by the learned counsel
for the appellant/accused and the learned special Public Prosecutor .
3. The prosecution case is that the accused, while working as
Forester on special duty at the Forest Range Office, Kasaragod, abused
his official position and demanded illegal gratification from PW2 for the
release of a mini lorry bearing registration No. KL-14C-99, when the said
vehicle had been ordered to be released by the Chief Judicial Magistrate,
Kasaragod, on 23.01.2012. The further allegation is that the accused
negotiated with PW2 and reduced his initial demand for ₹10,000 to
₹5,000. Thereafter at about 2:30 p.m., on 06.02.2012 the accused
alleged to have demanded and accepted the bribe amount of ₹5,000
from PW2 at the forest quarters of the Forest Range Office,
Kasaragod, in consideration for releasing the said mini lorry. On this
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premise, the prosecution alleges commission of offences punishable
under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC
Act, 1988') by the appellant/accused.
4. On filing of the final report, the Special Judge took cognizance
of the matter and proceeded with trial. During trial, PWs 1 to 22 were
examined, and Exhibits P1 to P36, along with MO1 series, MO2, and
MO3, were marked on the side of the prosecution. On behalf of the
defence, Exhibits D1 and D2 series were marked. After hearing both
sides, the Special Court found that the accused had committed
offences punishable under Sections 7 and 13(1)(d) read with Section
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13(2) of the PC Act, and accordingly he was convicted and
sentenced for the said offences.
5. While challenging the verdict of the Special Court, the
prime contention raised by the learned counsel for the accused is
that PW2, the complainant, who was examined to prove the demand
and acceptance of illegal gratification amounting to ₹5,000 by the
accused, turned hostile to the prosecution. Even during his
cross-examination carried out at the instance of the Legal Advisor
for the prosecution nothing was elicited to establish the alleged
demand. Similar is the position as regards to the evidence of PW3
who was examined by the prosecution to prove demand and
acceptance of bribe by the accused. Excluding PWs2 and 3 no other
witnesses examined to prove demand of bribe by the accused.
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However, the Special Court relied on the testimonies of PW2,
PW13, and PW20, along with Ext. P5-- the First Information
Statement-- to conclude that the accused demanded and accepted
₹5,000 from PW2 for the release of the mini lorry, as alleged by the
prosecution. The learned counsel for the appellant/accused
submitted that the evidence of PWs 2, 13, and 20 in fact, not at all
established demand of ₹5,000 by the accused, and its consequential
acceptance. According to the learned counsel for the accused, the
Special Court relied on Ext. P5 (FIS) as a substantive piece of
evidence to prove demand, which is not supported by PW2 though
the same is legally unsustainable. Accordingly, the learned counsel
for the appellant/accused pressed for interference in the impugned
judgment. In support of his contention, he placed reliance on recent
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decisions of the Hon'ble Apex Court in State by Lokayuktha
Police, Davangere v. S.B. Nagaraj [2025 KHC OnLine 6519]
and Aman Bhatia v. State (GNCT of Delhi) [2025 KHC
OnLine 6430], particularly referring to paragraphs 25 and 51 to 55,
to contend that the initial elements of demand should be established
to apply the presumption under Section 20 of the PC Act, 1988.
6. On the other hand, the learned Special Public Prosecutor
submitted that, in the present case, even though PWs 2 and 3 were
cited by the prosecution to prove the alleged demand and acceptance
of ₹5,000 by the accused, they turned hostile to the prosecution. As
a result, their testimonies do not provide any direct evidence to
establish the demand. However the learned Special Public
Prosecutor placed decision of the Apex Court in 2001 KHC 1382
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M. Narasinga Rao v. State of Andhra Pradesh with reference
to paragraph 6, 9 and 20 to contend that in the said case the Apex
Court relied on the evidence of PW7 who recorded Ext.P2
complaint as that of PW1 (the complainant therein) examined
therein who turned hostile to the prosecution and taking note of
said evidence coupled with the fact that the accused was caught
redhandedly with the currency notes alleged to be demanded and
accepted by him, the Apex Court found in paragraph No.21 that
from those proved facts the court could legitimately draw a
presumption that the appellant received or accepted the said
currency notes on his own volition and accordingly the conviction
and sentence imposed by the special court as well as the High Court
were confirmed by the Apex Court. It is pointed out by the learned
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Special Public Prosecutor that in Neeraj Dutta v. State (Govt. of
NCT of Delhi, 2022 (7) KHC 647 the Apex Court considered
the question as to whether any conflict in two decisions, viz (1)P.
Sathyanarayana Murthy v. District Inspector of Police and
Another Andhra Pradesh 2015 (10) SCC 152 and (2) Jayaraj
B v. State of Andhra Pradesh 2014 (13) SCC 55 (three
Benches) with that of M. Narasinga Rao v. State of Andhra
Pradesh 2001 (1) SCC 691 in as much as to the nature and quality
of proof necessary to sustain a conviction for the offences under
Sections 7 and 13(1)(d)(i) and (ii) of the PC Act 1988, in the
absence of the complaint letting in direct evidence owing to the non
availability of the complaint or owing to his death or other reason,
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whether the demand for illegal gratification could be established by
other evidence.
7. 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?
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?
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?
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4. Whether the verdict under challenge would require
interference?
5. The order to be passed?.
Point Nos. 1 to 5:
8. In the present case, PW19 registered the crime, PW21
conducted the investigation, and PW22 filed the charge sheet before
the court. The prosecution examined PW2, the complainant, and
PW3, a friend of PW2, who accompanied PW2 to prove that the
accused demanded and accepted ₹5,000 for the release of the mini
lorry, as alleged. However, on reading of the evidence of PW2, it is
clear that he turned hostile to the prosecution and his evidence in no
way supported the prosecution case as regards to demand and
acceptance of bribe by the accused. Even though he was
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subsequently cross-examined by the Legal Advisor, nothing was
elicited to support the allegation of demand by the accused. The
same is the position as regards PW3, who did not support the
prosecution case in as much as demand and acceptance of
Rs.5,000/- by the accused from PW2. Thus the evidence PW3 also
does not contain anything to establish the alleged demand.
According to the learned counsel for the appellant/accused, even
though the Special Court found that the combined evidence of PWs
2, 13, and 20 along with Ext.P15(FIS) established the demand of
bribe money marked as MO1 series, by the accused, the said
evidence is quite insufficient to prove the demand beyond
reasonable doubt. Therefore, the essential ingredients to establish
the commission of the offences are not made out. In view of this, the
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appellant/accused is entitled to the benefit of doubt and therefore
the verdict impugned is liable to be reversed.
9. Coming to the evidence of PW2, he narrated how his lorry
got in the custody of Kasaragod Forest Range Office. When the
timber of PW3 was brought in his lorry, Badiyadka Police seized the
vehicle and timber and registered a case. Thereafter the lorry was
taken to the Forest Office, Kasaragod. He along with PW3 filed a
petition before Chief Judicial Magistrate Court, Kasaragod and
release of the vehicle was ordered accordingly. In the petition filed by
him, the Court directed to produce the documents of his vehicle
and after a few days he received a phone call from the forest office
informing to make available the documents pertaining to the
vehicle. He went along with PW3 to release the mini lorry and given
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his mobile phone number to the accused and informed the accused
about the petition filed by him to release the vehicle. The witness
identified the accused at the dock. He had produced Ext.P3 order of
the Chief Judicial Magistrate Kasaragode on the assertion that the
order was produced before the Forest Office, Kasaragod on the same
day. In fact, PW2 did not support the prosecution case as regards to
demand and acceptance of Rs.5,000/- by the accused. PW3 also in
no way supported the prosecution case.
10. Coming to the evidence of PW19, the Deputy
Superintendent of Police (DySP) who conducted the trap, he
deposed that PW2 arrived at his office and stated that his mini lorry
bearing registration No. KL-14C-99, which was in the custody of
the forest authorities, was ordered to be released by the Chief
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Judicial Magistrate Court, Kasaragod, on 23.12.2013. PW19 further
stated that when he handed over the release order to the Forest
Range Officer/the accused herein he demanded bribe to the tune of
₹10,000. Regarding this aspect, PW19 conducted a pre-verification
and advised PW2 to again attempt for the release of the vehicle. He
instructed that if the release was not successful, PW2 should
approach him. Subsequently, PW2 and PW3 informed PW19 that
the vehicle had not been released and that the accused demanded
bribe of ₹5,000, as he was unwilling to release the vehicle without
getting this amount. Accordingly, the statement of PW2 was
recorded in this regard, which is marked as Ext. P5. Pursuant to Ext.
P5, Crime No. VC-02/2012 was registered under Section 7 of the
PC Act, 1988 and the FIR got marked as Ext. P5(a). PW19 further
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deposed about the arrival of two Gazetted Officers, PW6 and CW3,
who came at his request. He also testified regarding the production
of ₹5,000 (five notes of ₹1,000 each), marked as MO1 series, by
PW2, and the preparation of Ext. P8 mahazar documenting the
same. PW19 also spoke about the phenolphthalein test and the
subsequent pink colour change to the sodium carbonate solution.
He deposed that he had entrusted MO1 series to the accused with
instruction to deliver the same to the accused upon demand.
PW19 further testified about their arrival near the office at 2:30
p.m. and the signal given by PW2, through PW3, indicating the
accused's acceptance of the MO1 series. He deposed about the
phenolphthalein test conducted by the officials, which showed no
colour change. According to PW19, when he inquired about the
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money received, the accused stated that it was inside a black bag on
the table in the quarters (the place of occurrence). Acting on
PW19's direction, PW6 opened the door, took the bag, and
recovered the MO1 series notes. He also deposed about dipping the
accused's hands in sodium carbonate solution, which resulted in
pink color change to the solution. Additionally, he deposed about
the recovery of Ext. P10, a file related to the release of the vehicle,
produced by PW8.
11. The question to be considered herein is whether, in the
absence of direct evidence from PW2 and PW3 to prove the
demand, the Special Court was justified in holding that the
prosecution succeeded in establishing the demand for a bribe by the
accused. It is true that in the absence of direct evidence, the court
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may rely on circumstantial evidence to infer demand. However, the
crucial question in this case is whether the demand--one of the
most essential ingredients to prove offences under Sections 7 and
13(1)(d) read with 13(2) of the Prevention of Corruption Act--has
been established through circumstantial evidence.
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
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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
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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
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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.
13. Coming back to the facts of the present case, there is no
direct evidence to establish that the accused demanded Rs. 5,000/-
from PW2, since PWs 2 and 3, who were examined by the
prosecution to prove the demand of bribe by the accused turned
hostile to the prosecution. On evaluating the circumstances
otherwise brought in evidence even though the bribe money was
recovered from a black bag on the table of the accused and the hands
of the accused when dipped in sodium carbonate solution the same
showed pink colour change the same by itself are insufficient to hold
that the accused demanded bribe money (MO1 series) from PW2 as
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alleged by the prosecution. Therefore the prosecution miserably
failed to prove the essential ingredients to prove the offences
punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,
1988. Therefore contra finding entered into by the Special Court by
giving emphasis to the available evidence including Ext.P5 FIS is
erroneous. It is shocking to note that the special judge given
reliance to Ext.P5 FIS to find demand though the maker of the same
not supported the same and he disowned the same.
14. In the result this appeal succeeds and the verdict of the
special court is set aside. Consequently the conviction and sentence
imposed against the appellant/accused stand set aside and he is set at
liberty forthwith. His bail bond stands cancelled.
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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
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER NUMBERED E1. 1362/2012
DATE 08.06.2021PASSED BY THE CHIEF FOREST
CONSERVATOR, NORTHERN CIRCLE, KANNUR
