[Cites 13, Cited by 0]

Kerala High Court

M.Kesava vs State Of Kerala on 8 April, 2026

                                                         2026:KER:31703

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

     WEDNESDAY, THE 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948

                          CRL.A NO. 2221 OF 2010

   AGAINST THE JUDGMENT DATED 14.10.2010 IN C.C. NO.40 OF 2004 OF

         ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE


APPELLANT/ACCUSED:

           M.KESAVA
           AGED 44, S/O.KARIYA(LATE), MUKHARI KANDAM,
           EDNAD VILLAGE, KASARGOD.


           BY ADVS.
           SRI.B.RAMAN PILLAI (SR.)
           SRI.ANIL K.MUHAMED
           SRI.R.ANIL
           SRI.T.ANIL KUMAR
           SRI.MANU TOM
           SHRI.SUJESH MENON V.B.
           SRI.SHYAM ARAVIND


RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

           SPL PP - RAJESH.A, SR PP - REKHA.S


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2026,
THE COURT ON 08.04.2026 DELIVERED THE FOLLOWING:
                                                                  2026:KER:31703
Crl.A. No. 2221 of 2010
                                       2



                                                                  "C.R"
                               JUDGMENT

Dated this the 8th day of April, 2026

The sole accused in C.C. No.40/2004 on the files of

the Court of the Enquiry Commissioner and Special Judge,

Kozhikode, has filed this appeal, under Section 374(2) of the

Code of Criminal Procedure, 1973 [hereinafter referred as

'Cr.P.C.' for short], challenging the conviction and sentence

imposed by the Special Judge, against him as per the

judgment dated 14.10.2010. The State of Kerala,

represented by the Special Public Prosecutor is arrayed as

the respondent herein.

2. Heard the learned senior counsel for the appellant

and the learned Special Public Prosecutor, in detail. Perused

the verdict under challenge and the records of the Special

Court.

3. Parties in this appeal shall be referred as

'accused' and 'prosecution', hereafter.

4. The prosecution case is that, the accused while

working as Village Extension Officer, Perla Circle and as such 2026:KER:31703

being a public servant abused his official position, committed

criminal misconduct, by adopting corrupt and illegal means,

demanded an illegal gratification of Rs.500/- for himself from

Sri.K.Abdulla, S/o.Mammunhi, Kuriadka, Perla P.O., Enmakaje

Village at about 4 P.M on 27-03-2003 and accepted Rs.200/-

at the Village Extention Office, Perla, for issuing a Stage

Certificate to the said Sri.K.Abdulla for producing the same

before the Block Development Officer, Manjeswar for getting

the 1st instalment of money under Indira Awaz Yojana

General Housing Scheme for construction of houses and

after accepting the bribe amount of Rs. 200/- he told to the

said Sri.Abdulla to pay the balance amount after encashing

the cheque. He further demanded an illegal gratification of

Rs.800/- for himself from K.Abdulla at 2 P.M on 29-04-2003 at

the Village Extension Office, Perla, for issuing the 2 nd Stage

Certificate (Rs.300/- being the balance bribe amount of 1 st

Stage Certificate and Rs.500/- being the bribe amount for

issuing the 2nd Stage Certificate) and accused accepted

Rs.500/- from PW1 and told him to pay the balance amount

of Rs.300/ before issuing the 3rd Stage Certificate and he

reiterated the demand for the balance bribe amount of 2026:KER:31703

Rs.300/- from him at 1.15 PM on 7-5-2003 at the Village

Extension Office, Perla, and in pursuance of the said

demand, the accused accepted for himself an amount of

Rs.300/- then and there, by way of bribe, from the said

Abdulla as a motive or reward for the official act mentioned

above and thereby, accused have committed criminal

misconduct and obtained undue pecuniary advantage for

himself. On this premise, the prosecution alleges commission

of offences punishable under Sections and 13(2) read with

13(1)(d) of the Prevention of Corruption Act, 1988

[hereinafter referred as 'P.C. Act, 1988' for short], by the

accused.

5. After framing charge for the above said offences,

the Special Court recorded evidence and completed trial.

During trial, PWs 1 to 9 were examined, Exts.P1 to P19 and

MOs 1 to 4 were marked on the side of the prosecution. Even

though, the accused was given opportunity to adduce

defence evidence after questioning him under Section

313(1)(b) of the Cr.P.C., he did not opt to adduce any

defence evidence.

6. On appreciation of evidence, the Special Court 2026:KER:31703

found that the accused was guilty for the offences

punishable under Sections 7 and 13(2) read with 13(1)(d) of

the P.C. Act, 1988. Accordingly, the accused was convicted

for the said offences and sentenced as under:

"I therefore, convict and sentence the accused to undergo Rigorous Imprisonment for two years each and to pay a fine of Rs.2,000/- each and in default to undergo Rigorous Imprisonment for six months each more, for the offence under Section 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The substantive sentences shall run concurrently. Set off, if any, is allowed under Section 428 Cr.P.C. M.O-1 series are to be returned to PW-1, and M.Os-2 to 4, being valueless are to be destroyed, after the appeal period is over."

7. While assailing the verdict of the Special Court,

the learned senior counsel for the accused raised multifold

contentions. At the outset, the submission is that, this is a

case foisted as part of conspiracy hatched between the

Panchayat President and the Secretary of the Perla

Panchayat, who are in enimical terms with the accused.

According to the learned senior counsel for the accused, the

President had compelled the accused to include a large

number of nominees and relatives of the President and her 2026:KER:31703

two sons in the list of beneficiaries for getting loans and

subsidies. But, the accused did not oblige the President,

since they were not found to be eligible for gettings loans

and subsidies as per the norms and rules. At this juncture, in

order to put the accused in trouble, this case is foisted

against him. In this regard, it is submitted that, in this case

Ext.P1 FIS was recorded at about 10.30 a.m. on 07.05.2003

and pre-trap mahazar was prepared at about 10.40 a.m.

without a preliminary enquiry, since the Investigating Officer

also joined with the Panchayat President and Secretary to

trap the accused for no reason. It is argued further that,

during chief examination of PW1, he had given evidence

that, he had lodged a written complaint that too written by

George (the Panchayat Secretary) examined as PW5 and

entrusted the same to the Dy.S.P., who was examined as

PW7. According to the learned senior counsel for the

accused, as far as the evidence given by PW1, as to lodging

of awritten complaint in the above line, no cross-

examination effected. Therefore, the said evidence would

remain unchallenged. In this context, it is argued that, when

PW7, the Dy.S.P. was examined, his version is that, no such 2026:KER:31703

complaint was given. Similarly, PW5, who alleged to have

written the complaint stated to be given by PW1 in writing

before the Dy.S.P., was examined, he also denied the same.

This would go to show that PW1 was lying before the Court

as regards to lodging of a complaint. It is also submitted

that, in this case, even though PW2 was examined to prove

the pre as well as post trap proceedings, he was not placed

somewhere near the office of the accused to oversee and

corroborate the demand and acceptance of bribe by the

accused and therefore, no corroborative evidence from the

decoy witness is forthcoming to support the evidence of

PW1.

8. The learned senior counsel for the accused argued

further that, as per the evidence of PW5, the Panchayat

Secretary, he was absent on the day of trap at the office

during forenoon and he had reached the office during

afternoon. According to PW5, the accused also was not in the

office during the relevant time. The evidence of PW5 in this

regard is given emphasis to hold that the entire trap is a

concocted story. According to the learned senior counsel,

here the defense case is more probable than that of the 2026:KER:31703

prosecution. Therefore, the evidence adduced by the

prosecution is not free from doubt and the accused would be

entitled to the benefit of doubt. Accordingly, the learned

senior counsel for the accused pressed for interference in the

verdict impugned.

9. Repelling the contentions raised by the learned

senior counsel for the accused, the learned Special Public

Prosecutor submitted that, as far as lodging of a complaint

alleged to be written by PW5 before PW7 is concerned, the

same may be a mistake on the part of PW1, since PW5 and

PW7 categorically denied such a complaint. According to the

learned Special Public Prosecutor, the trap was in the year

2003 and the examination of PW1 was during the year 2010

i.e. after seven years. So, while giving evidence about an

occurrence of the year 2003, natural omissions, additions

and variations, by passage of time, that too when the

examination was after seven years is usual and the same

should not be given much emphasis to disbelieve the

evidence of PW1, which is categorical to prove the case of

the prosecution, supported by other evidence. It is also

pointed out that, as per the available evidence, the entire 2026:KER:31703

allegation as to demand and acceptance of bribe by the

accused have been proved by the prosecution without any

reasonable doubt. Therefore, the conviction and sentence

are liable to be sustained.

10. In view of the rival submissions, the points arise

for consideration are:

1. Whether the Special Court is justified in finding that the accused committed the offence punishable under Section 7 of the P.C. Act, 1988?

2. Whether the Special Court is justified in finding that the accused committed the offence punishable under Section 13(2) read with 13(1)

(d)of the P.C. Act, 1988?

3. Whether the verdict of the Special Court would require interference?

4. Order to be passed?

11. Point Nos.1 and 2:- In this case, in order to

prosecute the accused, sanction to prosecute him got

marked as Ext.P19 was issued by the Commissioner, Rural

Development and she was examined as PW9 to prove the

same. She supported issuance of Ext.P19 and no cross-

examination effected to disbelieve her version. Thus, the

prosecution sanction is not at all under challenge. In fact, in 2026:KER:31703

order to prove the offences punishable under Sections 7 and

13(2) read with 13(1)(d) of the P.C. Act, 1988, it is mandatory

for the prosecution to prove the demand and acceptance of

bribe by the accused, in a convincing manner, without any

reasonable doubts.

12. Now, it is necessary to address the ingredients

required to attract the offences under Section 7 and Section

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

are extracted as under:-

Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company 2026:KER:31703

referred to in clause (C) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. Section 13:- Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct,-

a) xxxxx

(b) xxxxx

(c) xxxxxx

(d) If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.

13. 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 2026:KER:31703

demand and acceptance under Section 7 of the P.C.Act to be

said to be proved along with ingredients for the offences

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

2026:KER:31703

(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. 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 2026:KER:31703

must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or 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 2026:KER:31703

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."

14. 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 bribe by the

bribe giver without there being any demand from the public

servant and the latter simply accepts the offer and receives

the illegal gratification, it is a case of acceptance as per 2026:KER:31703

Section 7 of the Act. In such a case, there need not be a

prior demand by the public servant. The presumption of fact

with regard to the demand and acceptance or obtainment of

an illegal gratification may be made by a court of law by

way of an inference only when the foundational facts have

been proved by relevant oral and documentary evidence

and not in the absence thereof. On the basis of the material

on record, the Court has the discretion to raise a

presumption of fact while considering whether the fact of

demand has been proved by the prosecution or not. Of

course, a presumption of fact is subject to rebuttal by the

accused and in the absence of rebuttal presumption stands.

The mode of proof of demand and acceptance is either

orally or by documentary evidence or the prosecution can

prove the case by circumstantial evidence. The trial does

not abate nor does it result in an order of acquittal of the

accused public servant. Insofar as Section 7 of the Act is

concerned, on the proof of the facts in issue, Section 20

mandates the court to raise a presumption that the illegal

gratification was for the purpose of a motive or reward as 2026:KER:31703

mentioned in the said Section. The said presumption has to

be raised by the court as a legal presumption or a

presumption in law.

15. 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 2026:KER:31703

Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police's case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia's case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof 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 2026:KER:31703

the offences under the two Sections in the absence of evidence to prove the demand."

16. In this matter, the learned Special Judge relied on

the evidence of PW1 supported by other evidence to found

the ingredients to find commission of offences punishable

under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,

1988, by the accused. PW1 deposed that, he was a

beneficiary of housing scheme under Indira Awaz Yojana and

the accused was the Village Extension Officer, Perla Circle,

authorized to deal with the same. His evidence is that, after

completing the first stage of his house, he had approached

the accused for obtaining the first Stage Certificate for

getting the first instalment of the amount from the Block

Development Office. The accused demanded Rs.500/- for

issuance of the Stage Certificate. At that time, even though

PW1 was not willing to pay the amount he has given Rs.200/-

to the accused for obtaining the first Stage Certificate. The

total amount sanctioned for the construction of the house

was Rs.22,000/- from the Block Panchayat Office. This would

be paid in three instalments. The first instalment of

Rs.9,500/- to be paid after obtaining the first Stage 2026:KER:31703

Certificate. After accepting Rs.200/- the accused reiterated

the demand of the balance amount of Rs.300/- along with

Rs.500/- for the second Stage Certificate on that day itself,

viz. 27-3-2003. Subsequently, after completing the second

stage, he approached the accused and requested for the

second Stage Certificate. At that time, the accused

demanded Rs.800/- inclusive of the balance amount to be

paid to him at the time of issuing the first Stage Certificate.

Subsequently, he demanded Rs.800/- inclusive of the

balance amount to be paid at the time of issuance of the

second Stage Certificate. Since he was not willing to pay the

amount, he straight-away gone to the office of the Dy.S.P.,

Vigilance and Anti-corruption Bureau, Kasaragod, on 7-5-

2003 at 10.30 A.M. He had stated factual events of the case

and that was reduced into writing by the Dy.S.P. and the

same was signed by him, which he identified and marked as

Ext.P-1. Subsequently, two Gazetted Officers reached the

Vigilance Office and they were introduced to him and the

facts of the case was narrated to them also. In their presence

Rs.300/- (100 x 3) was entrusted to the Dy.S.P. by PW1, for

giving as bribe money to the accused. That amount was 2026:KER:31703

identified as MO-1 series. A demonstration of the

phenolphthalein test was conducted on a one rupee currency

note and after preparing an entrustment Mahazar MO-1

series was received by the Dy.S.P. After smearing

phenolphthalein powder on MO-1 series currency notes and

after noting the number in the entrustment Mahazar, which

was marked as Ext.P-2, given to PW1 for handing over to the

accused only on demand. After completing all the formalities

they were proceeded to the Village Extension Office, Perla, at

about 11.30 Α.Μ. They reached nearby the Perla junction at

1.00 P.M and PW1 and a Police Constable alighted from the

vehicle and as directed by the Dy.S.P. they had gone to the

Village Extension Office. The complainant gone to the Village

Extension Officer's Office, where the accused was seated. On

seeing PW1, the accused demanded the amount of Rs.300/-.

PW1 handed over Rs.300/- to the accused and the accused

accepted the same with his right hand and put it into his

shirt pocket. Then, PW1 came out of the room and gave

signal to the Police Constable, who was waiting in front of the

Village Extension Office. After sometime the Police Party

came to the office and the accused was arrested and the 2026:KER:31703

amount was recovered. The application as well as the

Agreement executed by him for obtaining the amount were

marked as Exts.P-3 and P-3(a) respectively.

17. Apart from the evidence of PW1, PW7, the Dy.S.P.,

who laid the trap also was examined to prove the

prosecution allegations. His evidence is that, on 7-5-2003,

PW1 came to his office and narrated the facts of the case. He

had taken down the complaint and after obtaining the

signature of PW1 therein, a case was registered by him. The

complaint so taken down by him was marked as Ext.P-1 and

the FIR registered got marked as Ext.P-1(a) also tendered in

evidence through him. According to him, he made a request

for obtaining the services of two Gazetted Officers as

witnesses, from the General Manager of the District

Industries Office. As per the request, PW-2 and CW-3 were

present in the office. PW1 was introduced to them. PW1 had

produced Rs.300/- (100 x 3) before him as trap money. After

noting the number of the currency notes he had prepared

the entrustment Mahazar, which was marked as Ext.P-2 and

after conducting phenolphthalein test in a one rupee

currency note, they were proceeded to the Village Extension 2026:KER:31703

Office, Perla Circle. The currency notes entrusted by PW1

was identified as MO-1 series. Then they reached nearby the

Village Extension Office, Perla, at about 1.00 P.M. The

accused as well as one Police Constable and an Inspector,

were alighted from the vehicle and they were gone to the

Village Extension Office. After obtaining the signal they have

proceeded to the Village Extension Office. PW1 had pointed

out the accused from the verandah. Then, they were gone to

the accused and he introduced himself as well as the witness

to him. They have searched themselves in person and

nothing was recovered. Then their hands were also

immersed in the sodium carbonate solution. No colour

change had occurred. Then, he asked the accused about the

amount received from PW1. The accused denied it. When the

hands of the accused were immersed in the sodium

carbonate solution, the solution showed pink colour change.

Then, he questioned about the bribe money he had stated

that he had accepted the amount and kept in the shirt

pocket. Then, he directed PW2 to take the amount from his

shirt pocket. After recovering the amount that was immersed

in the sodium carbonate solution, then the solution showed 2026:KER:31703

pink colour change. The solution was seized. The accused

was arrested and the Arrest Memo was marked as Ext.P-17.

When sodium carbonate solution was sprinkled in the pocket

portion of the shirt worn by the accused at the time of trap,

it also turned into pink colour. The shirt was sized and

identified as MO-4. The Work Register Ext.P-4 and the

Beneficiary List Ext.P-5 kept on the table of the accused were

also seized. A recovery Mahazar Ext.P-6 was prepared from

there and the witnesses and the accused himself were

signed in it. Subsequently, the accused, documents and the

properties were brought to the Vigilance Office. The

properties were shown in the property list, which was

marked as Ext.P-18. The investigation was conducted as per

his direction by the Inspector. He had questioned the

Additional Development Officer for identifying the signature

of the Sanctioning Authority and recorded his statement.

After completing the investigation he has laid the charge

against the accused before Court.

18. PW2, the official witness, who accompanied the

trap team, examined in this case was the Manager of the

District Industries Office, Kasaragod and he deposed in 2026:KER:31703

support of the prosecution evidence in tune with the version

of PW1 and PW7 as regards to preparation of pre-trap

mahazar and post trap mahazar and nothing extracted

during cross-examination to disbelieve his version.

19. PW3 examined was the then Block Development

Officer, Manjeswar Block Panchayat, since 13-9-2001. On 15-

5-2003 and according to him, he had produced certain

documents before the Vigilance Dy.S.P., Kasaragod. Those

documents got marked Exts.P-3 and P-3(a). The Stage

Certificate issued by the accused was also produced by him

before the Dy.S.P., which was marked as Ext.P-7. As per

Ext.P-7, the accused had recommended for giving Rs.9,500/-

as first instalment amount to PW1. Another Stage Certificate

which was marked as Ext.P-8 was issued by the accused to

PW1 on 29-4-2003, in which it was recommended for passing

an amount of Rs.7,500/-. The Cheque Issue Register of Indira

Awaz Yojana Project for the year 2002-03 was also produced

by him. The certified copy of the relevant pages were

marked as Ext.P-9. The Housing Register for the year 2002-

03 was also produced by him and the attested copy was

marked as Ext.P-10. A mahazar was prepared by the police 2026:KER:31703

for seizing those documents, which got marked as Ext.P-11.

As per Indira Awaz Yojana, a beneficiary would get

Rs.22,000/- for constructing a house. That was given from

the Block Office in three instalments. The beneficiaries were

elected by the Grama Sabha. That list had to be given to the

Panchayat Board. After accepting it, subsequently that would

be forwarded to the Block Development Office. Along with

the application, the income certificate obtained from the

Village Office and the Enquiry Report of the Village Extension

Officer and the decision of the Panchayat Board and the

Agreement of the applicant were also to be obtained. In

Ext.P-3(a) Agreement, it was signed by the accused as a

witness. There were two Village Extension Officers in the

Perla Village. The accused was the Village Extension Officer

of Perla Circle. Janu Naik was the Village Extension Officer of

the Kattumukke Circle. The order of appointment of both

these Village Extension Officers produced by the Block

Development Officer got marked as Ext.P-12. According to

him, the Village Extension Officers would have to produce

the work report in daily diary in two times in one month

before the Block Development Office. The daily diary of Perla 2026:KER:31703

Circle from February, 2002 to 7/9/2003 was produced and

marked as Ext.P-13. The accused was working under him.

After arresting the accused, the Dy.S.P., Vigilance informed

the arrest of the accused to him. The key of the office was

directed to be given to the Secretary of the Panchayat, since

the other Village Extension Officer was on leave. It was

deposed by PW3 that, the Vigilance Police had questioned

and recorded his statement as part of investigation.

20. PW4 examined was the Village Extension Officer,

Puthige. On 15-5-2003, he was in full additional charge of

Perla Circle Village Extension Officer. On 27-5-2003, he has

produced three documents to the Vigilance Police. The

Attendance Register of Perla Circle Village Extension Office

from October, 2002 was produced and marked as Ext.P-14.

The Posting Order of the accused was also produced by him

which already got marked as Ext.P-12. The Mahazar

prepared for seizing the above documents was marked as

Ext.P-15. As per Ext.P-13, the accused has took charge as

Village Extension Officer, Perla Circle, on 19-2-2003.

21. PW9 examined was working as the

Commissioner, Rural Development. He deposed that, on 20- 2026:KER:31703

3-2004, she had issued the Sanction Order to prosecute

Kesava, the accused in this case and Ext.P-19 sanction

order tendered in evidence through her. The Commissioner,

Rural Development, is the competent authority to remove

the Village Extension Officer from the service. Before

issuing the Sanction Order she had verified all the

connected records and applied her mind.

22. Here, the prosecution sanction is not under

challenge, rather the same has been proved by the

prosecution to accept the same. On perusal of the evidence

discussed, the prime witness to prove the necessary

ingredients to constitute offences under Sections 7 and

13(2) read with 13(1)(d) of the P.C. Act, 1988, is PW1,

supported by the evidence of PW2, the decoy witness and

PW7, the Dy.S.P., who laid the trap.

23. On perusal of the evidence of PW1, in fact,

nothing extracted to disbelieve his version in the matter of

demand and acceptance of bribe by the accused for

issuance of stage certificates for getting money under

Indira Awaz Yojana, as stated by him. But, as pointed out by 2026:KER:31703

the learned senior counsel for the accused, during

examination PW1 had a version that a written complaint

was lodged by him before the Dy.S.P. on the date of

registration of the FIR and the same was one prepared in

the handwriting of PW5, who was the Panchayat Secretary.

However, PW5 and PW7 categorically denied the said

statement of PW1. This argument has been advanced by

the learned senior counsel for the accused to contend that,

the accused put up a specific case that he was implicated

in this crime, since the Panchayat President and Secretary

were in inimical terms with him as he did not obey their

command to include their kith and kin in the list of

beneficiaries under the scheme. Now, the question poses

for consideration is, because of this version given by PW1

during his examination after seven years of recording his

statement by the Police itself would take away his evidence

as wholly unbelievable and unreliable, in a case where the

bribe money was recovered from the possession of the

accused soon after the trap in consonance with the

consistent evidence of PW1 positing demand and 2026:KER:31703

acceptance of bribe by the accused/appellant. It is relevant

to note that, after seven years of the occurrence, when

PW1 was examined before the Court, for the first time, he

had given evidence that he had lodged a written complaint

regarding the demand and acceptance of bribe by the

accused and the said version was emphatically denied by

PW5 as well as PW7. Be it so, the version of PW1 is to be

read as a mistake by loss of memory and in fact, if such a

complaint was lodged raising the same allegations in

Ext.P1, the prosecution would not suffer any harm in

placing the same as part of prosecution records. In such a

situation, this challenge by itself is held as insufficient to

disbelieve the evidence of PW1.

24. It is true that, on getting information from PW1,

on the date of trap, the FIR was registered after one hour,

without opting for a preliminary enquiry. The law is well

settled that, preliminary enquiry may be opted by the

Investigating Officer, once he found it is necessary to rule

out possibility of false implication, merely acting on the oral

version of the complainant. But, when the Investigating 2026:KER:31703

Officer felt that the statement regarding the alleged

demand of bribe by a public servant is genuine to be acted

upon, then preliminary enquiry is not mandatory. Therefore,

non conduct of preliminary enquiry is not a reason to

disbelieve the prosecution case, which in fact supported by

the evidence of PWs 1, 2 and 7 and other witnesses

discussed in detail.

25. Regarding the animosity in between the accused

as well as the Panchayat President and the Secretary (PW5)

is concerned, during examination of PW5, he candidly

denied the same. PW1 also denied any such animosity. It is

interesting to note that, apart from putting such a defense,

even no remote evidence forthcoming to find any animosity

as alleged and thus the defense case found to be without

support of any convincing evidence, rather than a version

or stand taken by the accused.

26. According to the learned senior counsel for the

accused, the decoy witness did not witness the demand

and acceptance of bribe and the same would affect the

prosecution case, for want of proof of the said ingredients 2026:KER:31703

with the aid of the decoy witness. In fact, proof of the

ingredients to attract the offences punishable under

Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,

1988, are concerned, the law discussed in Neeraj Dutta's

case (supra) will hold the field and as per which, the

evidence of the complainant alone, if reliable, is sufficient

to act upon the same, even in cases if he would turn hostile

to the prosecution. Therefore, this challenge also must fail.

27. Thus, on re-appreciation of evidence it could be

seen that the prosecution successfully proved the

ingredients to bring home the offences punishable under

Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,

1988, by the accused beyond reasonable doubt and none of

the contentions raised by the learned senior counsel for the

accused to hold otherwise found to be convincing or

acceptable. Therefore, the finding of the learned Special

Judge that the accused committed the above offences is

only to be justified. In consequence thereof, the conviction

entered into by the learned Special Judge is liable to

sustain.

2026:KER:31703

28. Coming to the sentence, I am of the view that

some leniency in the matter of sentence can be considered,

in the interest of justice.

29. Point Nos.3 and 4:- In the result, this appeal stands

allowed in part. The conviction imposed by the learned

Special Judge is confirmed. In the interest of justice, the

sentence imposed against the accused for the offences

punishable under Sections 7 and 13(2) read with 13(1)(d) of

the P.C. Act, 1988, is modified as under:

i. The accused is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for two weeks, for the offence under Section 7 of the P.C. Act, 1988.

ii. The accused is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for two weeks, for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988.