Kerala High Court
S.Sreekumar vs State Of Kerala on 19 September, 2025
2025:KER:70115
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 19TH DAY OF SEPTEMBER 2025 / 28TH BHADRA, 1947
CRL.A NO. 2937 OF 2008
CC NO.5 OF 2008 OF THE COURT OF THE ENQUIRY COMMISSIONER &
SPECIAL JUDGE, (VIGILANCE), KOTTAYAM
APPELLANT/ACCUSED:
S.SREEKUMAR,
AGED 55 YEARS,
S/O.SANKARANKUTTY NAIR, SREEVILAS,ARAKKULAM, THODUPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.ANIL K.MUHAMED
SRI.R.ANIL
SRI.JOSEPH P.ALEX
SRI.SUJESH MENON V.B.
SRI.SHYAM ARAVIND
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY ADVS.SRI.A.RAJESH, SPL.PUBLIC PROSECUTOR, VACB
SMT.REKHA.S., SR.PUBLIC PROSECUTOR, VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.09.2025,
THE COURT ON 19.09.2025 DELIVERED THE FOLLOWING:
Crl.A.NO.2937 OF 2008 2
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CR
JUDGMENT
Dated this the 19th day of September, 2025
This appeal is at the instance of the sole accused in
C.C.No.05/2008 on the files of the Enquiry Commissioner and
Special Judge (Vigilance), Kottayam. Respondent is the State of
Kerala represented by the learned Public Prosecutor.
2. Heard the learned senior counsel for the
appellant/accused and the learned Public Prosecutor for the State of
Kerala representing the Vigilance and Anti-Corruption Bureau,
Kottayam.
3. In a nutshell, the prosecution case is that the accused
demanded Rs.500/- from PW2 for the issuance of Nijasthithi
Certificate in respect of the property owned by his father on
15.02.2003 and there is further allegation that for issuance of patta
in respect of the same property, a sum of Rs.2,000/- was also given
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by the father of PW2. On this premise, the prosecution alleges
commission of offences punishable under Sections 7 and 13(1)(d) r/w
Section 13(2) of the Prevention of Corruption Act, 1988 (for short,
'the PC Act, 1988' hereinafter), by the accused.
4. Reckoning the final report filed by the Investigating
Officer, the learned Special Judge took cognizance for the said
offences and proceeded with trial. During trial, PW1 to PW5 were
examined, Exts.P1 to P19 and MO1 to MO9 series were marked on
the side of the prosecution. DW1 was examined on the side of the
defence. Thereafter, the Special Court, on evidence, found that the
accused committed the offences and accordingly, he was sentenced
as under:
Hence for the conviction entered against the
accused for the offence under S.13(2) r/w. 13(1) (d) of
P.C. Act 1988, he is sentenced to undergo rigorous
imprisonment for a term of 3 years (Three years) and
in addition he shall pay a fine of Rs.10000/- (Rupees
Ten Thousand only) and in default of payment of such
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fine, he shall undergo rigorous imprisonment for a
term of six months and for the conviction entered
against him for the offence u/s.7 of P.C.Act 1988, he
shall undergo rigorous imprisonment for a term of 2
years (Two years). The above sentences shall run
concurrently. Set off shall be given to the accused as
provided by S.428 of the Cr.P.C. MO1 series shall be
returned to PW2 and MO9 series shall be forfeited to
state revenue. Mos 2 to 8 being valueless shall be
destroyed after appeal/ revision, if any.
5. While assailing the verdict of the Special Court, the
learned senior counsel appearing for the appellant/accused
vehemently contended that the Special Court failed to appreciate the
evidence on record, where the sole evidence to prove the demand, as
per the prosecution case, was the testimony of PW2, who had, in fact,
turned hostile to the prosecution. That apart, it is argued that the
specific case of the prosecution is that, earlier, Rs.2,000/- was given
when the application for issuance of patta was considered by the
accused. But, as per Ext.P6 and as per the evidence of the
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Investigating Officer, no such records could be found. It is pointed
out further that, normally, in trap cases, there would be instruction
to give signal by referring a signal in a particular mode. In the
instant case, the mode of signal not at all stated by any of the
witnesses, and the Mahazar also does not mention it. The main
contention of the accused is that, in any event, the essential
ingredients to prove the offences under Sections 7 and 13(1)(d) r/w
Section 13(2) of the PC Act, 1988, have not been established, since
demand and acceptance are not proved; and for this reason alone,
the conviction and sentence cannot be sustained.
6. The learned senior counsel placed decision of the Apex
Court in Meena (Smt.) w/o Balwant Hemke v. State of
Maharashtra reported in [(2000) 5 SCC 21], where the Apex
Court dealt with offence under Section 5(1)(d) r/w Section 5(2) of the
Prevention of Corruption Act, 1947 to contend that offence under the
PC Act also to be proved like any other criminal offence and the
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prosecution has to prove the charge beyond reasonable doubt and
the accused should be considered innocent, till it is established
otherwise by proper proof of acceptance of the illegal gratification,
the vital ingredient necessary to be established to procure a
conviction for the offences under consideration and mere recovery of
currency note, that too, lying on the drawer of table of the accused by
itself would not be sufficient to prove acceptance of bribe.
7. Another decision of this Court in P.A.Hariharan v.
State of Kerala reported in [2021 SCC OnLine Ker 1651] has
been placed with reference to paragraph No.28 to contend that the
statement made by the accused to the police officer during the course
of investigation of the case is inadmissible in evidence in view of the
embargo under Section 162 of the Code of Criminal Procedure, 1973
and under Sections 25 and 26 of the Indian Evidence Act, 1872. This
decision has been placed by the learned senior counsel for the
appellant/accused, since the evidence of the Investigating Officer in
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this line also was given by the Special Court to find demand and
acceptance of bribe by the accused.
8. Decision in State of Lokayuktha Police, Davanagere
v. C.B.Nagaraj reported in [2025 SCC OnLine 1175] has also
been placed by the learned senior counsel to buttress the point that
there is no cavil that while a reverse onus under specific statute could
be placed on an accused, even then, there could not be a presumption
which would cast an uncalled for onus on the accused.
9. Another decision of the Apex Court in Mir Mustafa Ali
Hasmi v. State of A.P. reported in [(2024) 10 Supreme Court
Cases 489] was referred with reference to paragraph Nos.28 and
31, where the Apex Court considered the Constitution Bench decision
in Neeraj Dutta v. State (NCT of Delhi) reported in [(2023) 4
SCC 731], to contend that the Trap Lying Officer makes efforts to
verify the factum of demand of bribe by the public servant before
initiating the trap proceedings and the factum of demand of bribe
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would also be verified by recording the telephonic conversation
between the decoy and the suspect public servant by using a
recording device secretly at the hands of the decoy witness to record
the conversation which would transpire during the course of
acceptance of bribe by the public servant.
10. In another decision of the Apex Court in
K.Shanthamma v. State of Telangana reported in [(2022) 4
SCC 574], it has been pointed out to highlight the procedure of trap.
11. Latest decision of the Apex Court in Sambasiva Rao M.
v. State of Andhra Pradesh reported in [2025 KHC OnLine
6618] and the decision in Madan Lal v. State of Rajasthan
reported in [(2025) 4 SCC 624] have been placed by the learned
senior counsel to contend that proof of demand of bribe by public
servant and its acceptance are the essentials to prove the offences
under Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988.
12. It is pointed out by the learned senior counsel for the
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appellant further that, the Constitution Bench in Neeraj Dutta's
case (supra) laid down certain principles in paragraph No.68 and
when the said case was considered, the Apex Court allowed the
appeal and set aside the judgment impugned after holding that the
demand should be for payment of money by way of gratification to
prove the essential ingredient of demand. He has placed the said
decision by a two bench of the Apex Court reported in [2023 KHC
6268], Neeraj Dutta v. State (Govt. of N.C.T. of Delhi).
13. The learned Special Public Prosecutor opposed the
contentions raised by the learned senior counsel for the
appellant/accused. At the same time, the learned Special Public
Prosecutor submitted that PW2 was examined in this case to prove
the demand and acceptance of bribe by the accused, turned hostile to
the prosecution and he did not support the prosecution in the matter
of demand and acceptance of Rs.500/- by the accused on 15.02.2003.
But, according to the learned Special Public Prosecutor, following the
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ratio in the decision in Neeraj Dutta v. State (NCT of Delhi)
reported in [(2023) 4 SCC 731], demand should be inferred from
the circumstances where the demand in money was recovered from
the possession of the accused. Therefore, the ingredients are
proved, as rightly found by the Special Court and in such a case,
there is no necessity to interfere with the verdict under challenge.
14. In consideration of the arguments tendered, the points
arise for consideration are:
(i) Is it correct to say that the Special Court rightly entered
into conviction for the offence punishable under Section 7 of the PC
Act, 1988?
(ii) Is it correct to say that the Special Court rightly entered
into conviction for the offence punishable under Section 13(1)(d)
r/w Section 13(2) of the PC Act, 1988?
(iii) Whether the verdict would require interference?
(iv) The order to be passed?
15. Point Nos.(i) to (iv)
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In this matter, this case was emanated recording Ext.P1
statement given by PW2 before trap. Reading the deposition of PW2,
he deposed that he made a complaint before the Vigilance Office,
Thodupuzha when his father applied for possession certificate and
Nijasthithi Certificate of his property to avail loan before the Village
Officer, Baisenvalley. But, those certificates were not issued, even
though his father reached the office on several occasions. Thereafter,
the Village Officer deputed the Village Assistant to inspect the site
and accordingly, a plan was drawn. Later, he was informed to reach
the office on the next day. When PW2 reached the Village Office, the
accused handed over plan and sketch, but Nijasthithi Certificate was
not issued stating that the same was to be issued from Taluk Office.
He had produced the documents except Nijasthithi Certificate before
the Bank and the Manager insisted for production of Nijasthithi
Certificate to grant the loan. According to PW2, he borrowed
Rs.2,000/- from Parthipan, a provisional store owner and his friend,
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to give to the Village Officer and accordingly, his father given
Rs.2,000/- to the Village Officer and on the date of his examination,
the father was no more. He stated further that he had given Ext.P2
complaint and the same would bear the signature. But he denied the
prosecution case that his father had given Rs.2,000/- to the accused
for getting patta. Later, he did not support the prosecution case as
regards to demand of Rs.500/- and acceptance of the same from him
by the accused. Thus, the evidence of PW2, who is the only witness
cited by the prosecution to prove demand and acceptance of bribe by
the accused, turned hostile to the prosecution and no evidence is
available as that of him to support the prosecution case as to demand
and acceptance of Rs.500/- by the accused. As regards to the
acceptance of Rs.2,000/- from PW2 as alleged by the prosecution,
PW2's version is that, the amount was given by his father prior to the
demand of Rs.500/-.
16. PW3 examined in this case is the decoy witness, who
accompanied the trap team. In fact, he deposed about his
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appearance before the Dy.S.P. and presence of PW2 and other
witnesses. He deposed about Phenolphthalein demonstration test
and production of 500 rupee note by PW2 before the Dy.S.P. and
seizure of the same by the Dy.S.P. after putting his signature on the
water mark and noting the numbers. He identified the said notes as
MO1 series. Later, he deposed about entrustment of MO1 series back
to PW2 with direction to give the same only when demand by the
accused. According to him, he was directed by the Dy.S.P. to show a
sign by using his hand, but he did not depose as to the mode of sign.
He also deposed that on getting the signal, the trap party including
the Dy.S.P. entered into the office of the accused. PW2 stated that
when the accused demanded the money, he had paid the same and
when the accused was questioned regarding the money, he received
from PW2 stating that he placed the same at the drawer of the table.
He deposed about examination of the trap party and Phenolphthalein
test on their hands to rule out pink colour change in their hands. He
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deposed that when the left fingers and right fingers of the accused
was dipped in separate sodium carbonate solution, there was pink
colour change and the solution so recovered were MO3 and MO4.
On examining the drawer of the table, money was found kept inside a
battery hard board. PW3, who was examined in court, identified the
MO1 series, and when the same was dipped in sodium carbonate
solution, it turned pink. Thus, the evidence of PW3 is confined to pre
and post trap proceedings and the evidence, in no way, support
demand of bribe by the accused.
17. PW4 is another decoy witness and he also support pre and
post trap proceedings. Similarly, PW5, the Trap Laying Investigating
Officer supported the prosecution case as spoken by the decoy witness.
18. In this matter, one among the series anomaly pointed out by
the learned senior counsel for the accused is that, in this case, FIS was
lodged at 7.00 a.m. on 15.02.2003 and as per the evidence of PW2,
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PW3 and PW5, it was brought out that PW5 had informed PW3 and
PW4 to be present at the Village Office on the previous date even
before registering the FIR, based on Ext.P1 FIS given by PW2.
According to the learned senior counsel, no materials placed or no
remote piece of evidence would fortify why and on what basis PW5 -
Dy.S.P. informed the Gazetted Officers before getting of complaint
regarding demand of bribe. Even though it is argued by the learned
Special Public Prosecutor that this was occurred due to the
inexperience of PW5, since this was the first trap managed by him,
the fact remains is that, as per the evidence of PW3, PW4 and PW5,
intimation to secure the presence of PW3 and PW4 was given on the
previous day before registering FIR and the same shadows the
prosecution case and its genuineness.
19. Now, it is necessary to address the ingredients required to
attract the offences under Section 7 and Section 13(1)(d) r/w Section
13(2) of the PC Act, 1988. The same are extracted as under:-
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Section 7:- Public servant taking gratification
other than legal remuneration in respect of an
official act. - Whoever, being, or expecting to be a
public servant, accepts or obtains or agrees to accept or
attempts to obtain from any person, for himself or for
any other person, any gratification whatever, other than
legal remuneration, as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for
rendering or attempting to render any service or
disservice to any person, with the Central Government
or any State Government or Parliament or the
Legislature of any State or with any local authority,
corporation or Government Company referred to in
clause (C) of section 2, or with any public servant,
whether named or otherwise, shall be punishable with
imprisonment which shall be not less than three years
but which may extend to seven years and shall also be
liable to fine.
Section 13:- Criminal misconduct by a public
servant. - (1) A public servant is said to commit the
offence of criminal misconduct,-
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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 but which
may extend to ten years and shall also be liable to fine.
20. 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
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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
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
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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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21. In the case at hand, the prosecution examined PW2 to
prove the demand and acceptance of MO1 series notes by the accused
on the date of trap as well as demand and acceptance of Rs.2,000/-
prior to that by the accused. But, PW2 turned hostile to the
prosecution and he did not support the prosecution even on his cross
examination at the instance of legal advisor of the prosecution.
Apart from the evidence of PW2, the Special Court relied on the
statement made by the accused to the Dy.S.P. admitting demand and
acceptance of bribe, was given emphasis by the Special Court to find
the demand. As pointed out by the learned senior counsel for the
accused/appellant, the statement made by the accused to a police
officer during the course of investigation of the case, is inadmissible
in evidence in view of the taboo contained in Section 162 of the Code
of Criminal Procedure, 1973 equivalent to Section 181 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, and also under Sections
25 and 26 of the Indian Evidence Act, 1872 pari materia to Sections 31
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and 32 of the Bharatiya Sakshya Adhiniyam, 2023. Therefore, the
learned Special Judge went wrong in giving emphasis to the said
statement as a piece of evidence to find the demand. Similarly, it is
equally well settled that merely because a reverse burden is cast upon
the accused, that by itself takes away the duty of the prosecution to
prove the allegations beyond reasonable doubts and the reverse
burden would be operative only when primary burden cast upon the
prosecution is discharged. On evaluation of the evidence in the
context of the discussion made hereinabove, in the instant case,
insofar as the demand for bribe by the accused and consequential
acceptance of Rs.500/- on 15.02.2003 by the accused are concerned,
no direct evidence is forthcoming, since PW2 turned hostile to the
prosecution.
22. Coming to the other evidence also, the same would not justify
the demand contemplated under Sections 7 and 13(1)(d) r/w Section
13(2) of the PC Act, 1988. Thus, the Special Court went wrong in
holding that the prosecution successfully proved the
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ingredients for the offences and entered into conviction. It is for
these reasons, the conviction and sentence imposed by the Special
Court without support of sufficient evidence are liable to be set aside
and the appeal is liable to succeed.
In the result, this appeal succeeds. The verdict under challenge
stands set aside and the appellant/accused is acquitted for the
offences under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC
Act, 1988 and he is set at liberty forthwith. The bail bond stands
cancelled.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
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APPENDIX OF CRL.A.NO.2937 OF 2008
APPELLANT'S ANNEXURES
THE CERTIFIED COPY OF THE JUDGMENT IN
ANNEXURE A C.C.NO.5 OF 2008 OF THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
KOTTAYAM DATED 29-11-2008.
RESPONDENT'S ANNEXURES : NIL
