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Kerala High Court
V.S.Suresh Kumar vs C.B.I.Cochin on 19 January, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 19TH DAY OF JANUARY 2026 / 29TH POUSHA, 1947
CRL.A NO. 1892 OF 2005
CC NO.2 OF 2004 OF SPECIAL JUDGE (SPE/CBI)-I ERNAKULAM
APPELLANT/S:
V.S.SURESH KUMAR
AGED 1 YEARS
S/O.LATE SREEDHARAN NAIR, HOUSE NO.31/676, VALIYA
VEETTIL, SUBHASH NAGAR, EDAPPALLY P.O..
BY ADVS.
SRI.ANIL K.MUHAMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
SRI.GEORGE PHILIP
SRI.RAJU RADHAKRISHNAN
RESPONDENT/S:
C.B.I.COCHIN
REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF
KERALA,, ERNAKULAM.
BY ADVS.
SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
SHRI.SREELAL N.WARRIER, SPL.PUBLIC PROSECUTOR, CENTRAL
BUREAU OF INVESTIGATION (CBI)
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CRL.A NO. 1892 OF 2005 2
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
16.12.2025, THE COURT ON 19.01.2026 DELIVERED THE FOLLOWING:
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CRL.A NO. 1892 OF 2005 3
'CR'
JUDGMENT
Dated, this the 19th day of January, 2026
The sole accused in C.C No.2 of 2004 on the files of the Special
Judge (SPE/CBI)-I, Ernakulam has filed this Criminal Appeal.
2. Heard the learned counsel for the appellant/accused and the
learned Special Public Prosecutor appearing for the CBI and perused the
records.
3. In this case, the prosecution alleges commission of offences
under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,
1988 ('PC Act, 1988' for short hereinafter) by the accused. The specific
allegation is that the accused who held the post of Enforcement Officer of
the Employees Provident Fund Organisation, Kochi from 18.6.2003 to
12.12.2003, while holding the post he had demanded Rs.30,000/- as illegal
gratification from M/s Paradigam IT Pvt. Ltd when they wanted to remit EPF
dues in Cochin office due to shifting of their office from Chennai to Kochi.
According to the prosecution, on 10.12.2003, the accused reached M/s
Paradigam IT Pvt. Ltd and met PWs 1 and 2 and collected documents and
demanded Rs.30,000/- for processing the request. Thereafter on
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12.12.2003, when the accused demanded and accepted Rs.30,000/-, as
illegal gratification. Then he was nabbed with bribe money.
4. The Special Court framed charge for the said offences and tried
the matter. During trial, PW1 to PW13 were examined, Exts.P1 to P50 and
MO1 to MO14 were marked on the side of the petitioner. Exts.D1 and D2
were marked on the side of the prosecution. Thereafter, the Special Court
found that the accused committed offences punishable under Sections 7
and 13 (2) r/w 13(1)(d) of the PC Act, 1988. Accordingly, he was
sentenced as under:-
"In the result, the accused is sentenced to undergo
rigorous imprisonment for three years and to pay a fine of
Rs.25,000/- in default, to undergo simple imprisonment for
one more year, under Section 7 of the Prevention of
Corruption Act, 1988. The accused is further sentenced to
undergo rigorous imprisonment for five years and to pay a
fine of Rs.25,000/-, in default, to undergo simple
imprisonment for one more year, under Section 13(2) r/w
Section 13(1)(d) of the Prevention of Corruption Act, 1988.
The substantive sentences of the imprisonments shall run
concurrently. It is made clear that the accused is entitled to
get set off, of the period of detention, if any, undergone by
him in connection with the investigation, inquiry and trial of
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this case under Section 428 Cr.P.C. The accused is
committed to the Central Prison, Thiruvananthapuram to
undergo the sentence imposed."
5. The learned counsel for the appellant/accused fervently argued
that the allegation of the prosecution that the appellant/accused visited the
office on 10.12.2003 is false and the same is not supported by any
evidence. It is pointed out that even though MO4 casette was also placed
during the trap proceedings to record the conversation between the
accused as well as PWs1 and 2, in Ext.P48 conversation, the same is
stated as telephonic conversation and in support of the same, the
conversation in Exhibit P9 would depict the words 'Hello Hello Hello'. Thus
it is argued that the authenticity of MO4 and Ext.P48 report was not
properly proved and the same could not be relied on. It is also pointed out
that since Exts.P9 and P48 are not believable, the evidence of PWs 1, 2
and 4 supporting demand and acceptance of Rs.30,000/- by the accused
also cannot be believed and therefore the conviction and sentence could
not stand. As such the same would require interference.
6. The learned counsel also argued that now the appellant has
been undergoing treatment for cancer and he is in a very pathetic
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condition, therefore in the event of confirming conviction, sentence may be
reduced to least minimum possible.
7. The learned Special Public Prosecutor argued that going by the
evidence of PWs 1, 2 and 4 supported by Exts.P9, P48, P7 entrustment
mahazar, Ext.P12 Recovery Mahazar, recovery of MO12 series soon after
the trap and positive Phenolphthalein test result on the hands of the
accused, substantially proved the ingredients for the offences alleged to be
committed by the accused. Therefore, the conviction and sentence would
not require any interference.
8. Having addressed the rival contentions, the points arise for
consideration are
(i) Whether the Special Court went wrong in finding that the
accused committed offence under Section 7 of the of the
PC Act, 1988?
(ii) Whether the Special Court went wrong in finding that
the accused committed offence under Section 13(2) r/w
13(1)(d) of the of the PC Act, 1988?
(iii) Is it necessary to interfere with the verdict under
challenge or reliefs can be granted?
Point Nos.(i) to (iii)
9. The prosecution mainly relied on the evidence of PWs 1, 2 and
4 to see the demand and acceptance of bribe by the accused as on
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12.12.2003, the date of trap. The Investigating Officer also supported the
evidence of the prosecution in the matter of demand and acceptance of
Rs.30,000/-. In this case, Ext.P50 sanction to prosecute the accused was
issued by PW13, the Central Provident Fund Commissioner and no
dispute was raised as to its sanctity. Therefore, there was proper sanction
to prosecute the accused.
10. First of all, the evidence of PW1 to be addressed. According
to PW1, he was the Accountant of M/s. Paradigm IT Pvt. Ltd and that he
had joined this company originally in October 1997. Its registered office
was in Chennai. PW2 was the Director of the Said company. He identified
the accused and deposed that on 12.12.2003 he had lodged Ext. P1
complaint against the accused with the CBI, Cochin. M/s. Paradigam IT
Pvt. Ltd. had a branch office at Panampilly Nagar, Kochi since September
2001 and the company was planning to shift its business gradually to
Kerala as PW2 was a native of Kerala. Ext.P2 is the true copy of the Board
Resolution of the company for starting a branch in Kochi. Even before his
joining at Chennai, the company was covered by EPF and the said
account was maintained at the Chennai Office of EPF up to September
2003. According to PW1, he was looking after the EPF remittances. Even
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prior to his transfer to Kochi office in October 2003, he went to the Chennai
office of the EPF and enquired about the formalities of shifting EPF
account to Kochi. They had directed him to approach the Chennai office of
EPF. After his joining duty at the office in Kochi, he visited the EPF office
at Kochi in November, 2003 and when he met the PRO there he was told
that the Commissioner was not present and was directed to come to the
office after one week with an application. On 21.11.2003 he went with the
application to the EPF office, Kochi and met PW8 Assistant Commissioner
and handed over Ext.P3 application to him. PW8 told him that he would
depute an inspector for verification. As nobody turned up for a week, PW1
again visited the EPF office, Cochin and met PW8. Then PW8 told him that
after Ramzan, somebody would come. Even after Ramzan, nobody turned
up and thereupon PW1 again contacted PW8 over the phone. At that time,
he was informed that he had already deputed an inspector to visit the
office. PW1 deposed further that on 10.12.2003, his receptionist (got
examined as PW3) informed him that one Mr. Suresh Kumar from EPF
had came and thereupon he went to the reception and after introduction,
took the said Suresh Kumar to his room. He identified the said suresh
Kumar as the accused at the dock. The accused asked PW1 about the
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purpose. PW1 explained the purpose and showed him the copy of Ext. P3
also. Then the accused told him that a coverage proforma had to be filled
up. Then PW1 took the accused to PW2 who was sitting in the first floor
and introduced the accused to him, and PW1 returned to his room along
with the accused/appellant.
11. PW1 testified further that after lunch at 1.45 p.m, PW1 and
the accused came to the room of PW1 and filled up the proforma for
coverage and verified the contributions for October and November, 2003.
The accused dictated the covering letter and a declaration letter which
were also prepared. Then the accused asked PW1 to take a DD for the
contribution of October and November, 2003. As the bank time was over
PW1 told the accused that it would be furnished on the next day itself.
According to PW1, then the accused told him, 'other than the regular
contribution, you have to pay something to me and my officers' and the
accused told him that in Kerala there was such a practice when new
coverage would be considered. According to PW1, he understood that the
accused was demanding bribe. PW1 told the accused that they had never
paid any money to any Department and that they had never paid any such
money at EPF office in Chennai also. Then the accused replied that
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Kerala is not like Tamil Nadu and in Tamil Nadu many companies were
there and in Kerala only a few companies and hence there was such a
practice. PW1 told the accused that he was not the decision making
authority and that he would convey this demand to PW2. As all the papers
were ready for the signature of PW2, he took the papers and went to the
office room of PW2, who signed the same and he told PW2 that the DD
could be taken only on the next day.
12. PW1 deposed further that the accused then told PW2 that he
would come on 16.12.2003 and asked him to keep the DD ready on that
day. Then PW1 told PW2 in the presence of the accused that the accused
was demanding some other payment. PW2 asked PW1 as to "what is that
other payment?" accused told PW2 in Malayalam which PW1 could
understand. According to PW1, the accused forwarded the same demand
to PW2 also in Malayalam. PW2 told the accused that they would not make
any such extra payment. PW2 directed PW1 to take the accused to the
room of PW1 and to explain the position. PW1 took the accused again to
his room and then also the accused repeated the very same demand. Then
PW1 asked the accused "what is your expectation sir?". The accused told
him that including himself there were three people were involved, namely,
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Assistant Commissioner, Regional Commissioner and himself. Then PW1
told the accused that when he met PW8 he had not made any such
demand. The accused replied that PW8 would not ask PW1 directly as
PW1 was a new person and that PW8 would collect it through his
subordinates only. When PW1 asked the accused "what is your
expectation?' the accused asked PW1 Rs. 10,000/- each for three officers
including himself. PW1 was really shocked to hear such a demand for Rs.
10,000/- each for three persons. Then the accused told PW1 to think about
the grade of the officers and stated that anything less than Rs. 10,000/-
would be too bad. Once again PW1 told the accused that he would tell the
same to PW2 again. PW1 stated that the accused had asked him whether
the part payment could be made at that time itself when PW1 informed him
that they were making cheque payment and they had no money in cash
with them. Then the accused asked PW1 whether the DD and other
payment could be made on 12.12.2003 to which PW1 replied that he would
consult PW2 and would make it ready on 12.12.2003. Further, according to
PW1, the accused told him that the accused would come at 1 p.m on
12.12.2003 and reminded him to keep the DD and the amount ready. PW1
collected the mobile number of the accused and further gave him the
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originals as well as the photocopies of the papers required to obtain the
new coverage. The accused left the office of PW1.
13. PW1 testified further that, Immediately after the departure of
the accused, PW1 met PW2 and informed him about the demand of
Rs.30,000/- by the accused. PW2 was also really shocked to hear the
same. Then PW2 told PW1 that they should not leave such people and in
this regard a complaint to be lodged. At 6 p.m on that day PW2 came to the
room of PW1, showed him Ext.P4 the copy of the print out of a complaint
addressed to the Central Vigilance Commission (CVC), and told him that
they would wait for the response from the CVC. There was no response
from the CVC till 4.30 p.m on 11.12.2003. According to PW1, the date
noted in Ext.P4 as '12.10.2003' was in American style which they followed
the month would come first and the date would come next and therefore,
the correct date is '10.12.2003'. At 4.30 p.m on 11.12.2003 PW2 came to
the room of PW1 at the office and told him that they would go to the office
of the Vigilance o lodge the complaint. They went to the Vigilance-cum-Anti
Corruption Office near the North Railway Station,Kochi and met one
inspector and told him about the complaint. Then they were advised to
approach the CBI office with the complaint as the accused was a Central
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Government Officer. As it was late they decided to make the complaint to
the CBI on the next day. They returned to office and drafted Ext. P1
complaint in which PW1 affixed his signature as PW2 had to make frequent
visits to foreign countries. On 12-12-2003, PW1 and PW2 went to the CBI
Office, Kochi at 9 a.m and met the SP and lodged Ext.P1 complaint, who
inturn called PW11 Additional SP and introduced them to PW11 and asked
PW11 to discuss the matter with them. PW11 took them to his room, read
Ext. P1 complaint and put questions to them. As PW2 had to leave urgently
for official matters, he sought leave from PW11 and left. According to PW1,
he explained everything to PW11. PW11 told PW1 to produce the bribe
amount by 10.30 a.m. PW1 immediately went to the office and then to the
Bank and arranged the DD and the cash. PW1 proved Ext.P5 application
for the pay order and Ext.P6 series cheques of the pay order and cash.
After collecting the DD and the cash, PW1 went to his office, handed over
the DD to PW3 receptionist, and came back to the CBI office with the cash.
14. The evidence of PW1 would show that at 10.30 a.m on
12.12.2003, he went to the CBI office with the bribe amount of Rs.30,000/-
and met PW11. At that time some other officers were also present there.
Around 11 am, PW4 and CW4 also came and they were introduced to him.
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PW1 read out the copy of Ext. P1 complaint and explained it to all there.
Thereafter the demonstration of Sodium Carbonate Phenolphthalein test
was conducted. Sodium Carbonate solution was prepared and the same
was colourless. PW11 asked PW1 to produce the bribe amount. When he
produced the same, the CBI officials smeared phenolphthalein powder on
the said currency notes and CW4 was asked to count the currency notes.
After his counting the currency notes, he was again asked to dip his right
hand fingers in the fresh sodium carbonate solution. When he did so, the
solution turned pink. The resultant solution was preserved, sealed and the
signatures of the witnesses were obtained on the same. The same was
identified as MO1. The CBI officials search the body of PW1 and recorded
his belongings. Then the powder coated currency notes were placed in the
left side of the pocket of the pants of PW1 and prior to that they had noted
the denomination and serial numbers of the currency notes. PW11
directed PW1 not to touch the currency notes unless and until demanded
by the accused. He was also directed to take PW4 along with him by his
scooter and take him to his office room and permit PW4 to sit in his office
room and to introduce PW4 to the accused as his company staff. PW11
further instructed PW1 to come out of room and to scratch his head with his
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fingers on the demand and acceptance of bribe by the accused. PW11
showed PW1 a micro cassette recorder and a brand new micro cassette
and played the same. The said micro cassette was empty. Then PW1
recorded his voice first introducing him. Then PW1 introduced himself.
Then PW4 and CW4 also introduced themselves and those voice were
recorded. The recorder was switched off and PW1 was instructed how to
operate it and same was given to him. He put the micro cassette recorder
in his shirt's pocket. The same was entrusted to him for recording the voice
of the accused when accepting the bribe. PW1 was instructed to keep the
recorder in his room during the conversations. Ext. P7 mahazar in respect
of all these proceedings was drawn up in which the witnesses affixed their
signatures. The denomination and numbers of the currency notes smeared
with Phenolphthalein powder were also mentioned in Ext.P7.
15. Then PW1 went to his office with PW4 on his scooter. They
reached there before 1 pm and PW1 took PW4, to his room. PW4 sat in the
room facing the computer. After a few minutes, PW11 came to the room for
examining the arrangements. He placed the tape recorder in a plastic tray
and put some papers over it and placed it on the table. PW11 instructed
PW1 to switch on it immediately before the accused entering the room and
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to switch off the AC and open the window slightly and cover it with the
curtain. Even though the accused told that he would come at 1 pm, he did
not come at 1 pm. PW1 and PW4 waited in the room till 2.30 pm then they
went to the near by shop and had some cool drinks. According to PW1, then
he thought it fit to call the accused. He made a call to the accused from the
STD booth at the cool drinks shop to the mobile phone of the accused. The
accused told him that he was in Vyttila in a hotel an had ordered for some
food and would be coming after the lunch. Then PW1 and PW4 returned to
the room of PW1 at the office and waited. PW4 sat before the computer and
was facing south. PW1 sat by facing north in front of the table of PW1, there
were two chairs. By 3.30 p.m, PW3 receptionist called PW1 over the
intercom and told him that the accused had come. He immediately switched
on the tape recorder and asked PW3 to let the accused in. By pushing the
door, the accused entered to the room of PW1. The accused had to push the
door strongly as the door was little tight. The accused sat in front of the
table of PW1 facing him and told him that when he had called him, he was in
a hotel and also that there was traffic jam. The accused asked PW1 whether
DD was taken. Then PW1 told him that DD was ready. PW1 asked PW3
over the intercom to bring the DD. PW3 brought the DD, and he handed over
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it to the accused. The accused further asked PW1 whether it was for two
months contribution and then PW1 told the accused that it was for the
months of October and November, 2003 and that they had paid the
contribution at Chennai for the period up to September, 2003. When the
accused looked at PW4, PW1 told him that he was the office staff and that
he was under training for proceeding to the Chennai office. Then PW1 asked
the accused whether "anything other than DD?" and the accused said
"nothing". Then PW1 asked the accused "what else"?. The accused
answered "ball is in your court". According to PW1, by asking "anything
other than DD", what he meant was whether any other document was
necessary for registration.
16. Then PW1 told the accused that he had discussed with his
Director about the payment, and the Director was not ready for such
payment as they never paid anything to any other departments in Chennai
and further told him that PW8 had not asked him anything when he met him.
Then the accused told PW1 that PW8 had not asked PW1 directly; but
would collect through the accused only. Further PW1 asked the accused as
to whom else other than the Assistant Commissioner payment should be
made. The accused told that Regional Commissioner should be paid and
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further said "only three persons". Then the accused asked PW1" is it
ready?", PW1 told the accused that it was ready. Then accused looked at
PW1 and PW1 took the said phenolphthalein smeared currency notes and
gave the same to the accused. Then the accused asked "how much is this?"
PW1 replied "thirty." PW1 further told the accused that for the convenience
of the accused he brought it in thousands and asked him to count the same.
Then the accused answered "for what purpose?". PW1 told him that it was
not in bundles, it was loose and it was better to count the notes. Then the
accused asked PW1 a cover, which PW1 gave. The PW1 told the accused
that as the money was handed over to the accused, the accused had to do
the work very fast. At that time the accused replied "don't worry, it is my
responsibility, my senior officers are also involved in this, it will be done
immediately."
17. According to PW1, the accused asked for two more covers and
told him "why should I keep this much money in my brief case. I can give it
to my officers also today itself. It is Friday, they can take it to their home".
PW1 gave two more covers to the accused. The accused counted the
currency notes and separated it as three groups of Rs. 10,000/- each and
placed it in three separate covers. The accused put one cover containing
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Rs.10,000/- in the portion of 'MO2' brief case and the other two covers in the
outer pocket of MO2 brief case. According to PW1, whatever conversations
he had narrated above was not word by word conversation but those were
from his memory. According to PW1, the accused had asked him not to
account this money as commission paid; but to account it like some
allowances to staff. PW1 identified the said three covers which he had given
to the accused as M03 series.
18. According to PW1, thereafter the accused asked him whether
he could meet PW2. Then PW1 told him that PW2 was busy with some
projects. Then the accused asked his visiting card and he gave the same.
The accused by stating that "everything O.K", went out of the room with MO2
brief case and PW1 followed him. On seeing one CBI Officer standing
outside his room, PW1 gave the pre-arranged signal by scratching his hair.
Then other CBI officers along with PW11 came there and stopped the
accused. PW11 asked the accused to go inside the room of PW1. Along with
the accused all of them went inside the room of PW1. Then PW11 revealed
his identity to the accused and asked him whether he had taken Rs. 30,000/-
bribe money. The accused was shocked for sometime and could not speak
for sometime. Again the question was repeated by PW11 and then the
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accused nodded his head to the effect that he had accepted the bribe
amount. PW11 asked the accused as to for whom he collected the money
and where it was kept. The accused replied that Rs.10,000/- was for his
Assistant Commissioner, Rs. 10,000/- was for his Regional Commissioner
and Rs.10,000/- was for himself and stated that the amount was kept in his
MO2 brief case. PW11 switched off the tape recorder kept on the table. PW1
identified MO4 as the micro cassette used for recording the conversations.
MO4 cassette was checked and it was understood that the conversation was
recorded. Fresh Sodium Carbon solution was prepared. The accused was
asked to dip his right hand finger in the solution and on doing so, the
colourless solution turned pink. The same was preserved, sealed, and
marked, which was identified as MO5. Likewise, the left hand fingers of the
accused were also tested and when he dipped his left hand fingers in the
colourless sodium carbonate solution, it turned pink and the same was also
preserved, sealed and marked. The same was identified as MO6.
19. PW11 arrested the accused and asked the accused to produce
the bribe money. The accused opened the outer zip of MO2 and took two
covers and handed over it to PW11. PW4 and CW4 were asked to take out
the currency from the said covers and to verify the same. They compared
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currency notes and found it tallying with the numbers noted in Ext. P7. Then
PW11 asked the accused to produce the money. The accused opened the
main portion of MO2 and took out one cover and handed over to PW11. The
witnesses were asked to take out the currency notes from it and to verify It.
On verification it was found that its numbers were also tallying with the
numbers noted in Ext.P7. PW11 tested MO3 series covers also with sodium
carbonate solution which was poured in to it. On doing so the colour of the
solution showed pink colour change. Each covers were separately marked
and the solution was separately collected and sealed. MO7 got identified as
the solution taken and preserved from 'X' cover. MO8 got identified as the
solution taken and preserved from 'Y' cover. MO9 got identified as the
solution taken and preserved from 'Z' cover. The body of the accused was
searched. In his shirt pocket there were some papers and the visiting card
given by PW1. PW1 identified the said visiting card as M010. The name
"Ravi George M.D" is written by the accused in M010. Thereafter they
searched MO2 and Ext.P8 DD which was given by PW1 to the accused was
seized from MO2 brief case. The photocopy of the DD was taken and got it
attested by the independent witnesses. After retaining the said copy, the
original of the DD was returned to PW1. From MO2, along with other papers,
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MO11 identity card of the accused was also seized. Ext.P8 was
subsequently cancelled by them and they remitted the amount in Madras.
20. Thereafter the tape recorder was played and the transcription of
the communication was made. The transcription got marked as Ext.P9. In
Ext. P9, non-audible portions were kept blank. Ext. P10 sketch of the room of
PW1 was prepared. Ext. P11 sketch of the ground floor of the office building
also was prepared. Ext.P12 detailed mahazar regarding the recovery was
prepared. PW1 also affixed his signature along with other witnesses in
Ext.P12. The application for allotment code number given by PW1 to the
accused on 10.12.2003 got marked as Ext.P13 series. The declarations given
by him got marked as Ext.P14 series.The profoma given by PW1 to the
accused got marked as Ext.P15 series. The challan copies of the payments
made for August and September 2003 were also handed over to the accused
by PW1 on 10.12.2003 and the same marked as Ext.P16 series. Further,
according to PW1, his specimen voice was taken during investigation, for
which Ext. P17 mahazar was prepared. He identified the trap amount as
MO12 series.
21. According to PW2, he was the MD of M/s. Paradigm IT Pvt. Ltd.,
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at Panampilly Nagar at Ernakulam having registered office in Chennai. He
was an M Tech holder from the IIT Madras who passed out in 1991.
According to him in M/s. Paradigm Technologies Pvt. Ltd., Chennai, himself
and his friend and classmate Mr. Chandrasekhar were the Directors. They
started a branch of M/s. Paradigm Technologies Pvt. Ltd. as well as M/s.
Paradigm IT Pvt. in Kochi in 2001. The Directors of the same were himself,
his wife, Chandrasekhar and Mr. Tom Vansteelandt. Originally there were
only Directors. During the period between 2001-2002, PW2 was made the
Managing Director. According to him, being a Keralite he wanted to move to
Kochi. PW1 was the accountant in M/s. Paradigm IT Pvt. Ltd. and he was
maintaining their EPF accounts at Chennai. When PW1 moved to Kochi, he
wanted to shift the EPF account to Kochi. Ext.P3 letter was issued by PW2 in
this connection. According to him, he asked PW1 to do the formalities for
shifting the accounts and it was therefore Ext.P3 was issued.
22. According to PW2, after repeated attempts by PW1, somebody
from the EPF departments visited his office and had first came and met PW1.
Then PW1 introduced him to PW2. PW2 identified the accused as the said
person. According to him, after meeting the accused first, he (PW2) went for
lunch and then at about 3.30 p.m PW1 along with the accused again came to
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the room of PW2. They had in the meantime prepared all the necessary
forms for transfer of account and they brought all those papers for signature.
PW2 affixed his signature in Ext. P13 series, P14 series, P15 series and P18
series. These documents were placed for his signature by PW1 in the
presence of the accused. Then PW1 told him that a pay order for around
Rs.65,000/- also to be taken for remitting the contribution for two months and
since banking hours were over, he said that, it could be taken later. Then
PW1 told PW2 that the accused was saying about some more payments also
and then PW2 asked PW1 as to 'what was that'. At that time, the accused
told PW1 in Malayalam 'there are some other formalities also.' Then the PW2
asked the accused as to 'what is the formality?', as PW2 could understand
that the accused was asking for bribe. Then the accused told him that 'there
is a formality of paying an amount to the officers of the Provident Fund Office
when starting a new PF account like this.' Then PW2 told the accused that
fom 1999 they were contributing at Chennai and they used to pay only their
dues and they did never make any extra payment at Chennai and as they are
following all the Rules and Regulations correctly they need not pay any extra
amount. According to PW2, what the accused told him next was the main
thing that annoyed him much, the accused told "Kerala is not like Tamil Nadu,
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Kerala has a peculiarity". According to PW2, the accused told him that some
extra payment should definitely made to him and his bosses. As PW2
became annoyed hearing all these, he did not elaborate much and asked
PW1 take the accused to his room and to explain their stand. So he was
taken by PW1. PW2 was busy with his work. On the day at 4.30 pm PW1
again came to his room and told him that the accused was demanding Rs.
30,000/- for him and his bosses. PW2 immediately told PW1 that "it is
outrageous and such people cannot be left alone". It was a wednesday. PW1
told him that the accused would come to collect the amount on friday ie,
12.12.2003. Then PW2 told PW1 'you go, I will take care of this matter.' Then
PW2 searched the internet, obtained the address of the Central Vigilance
Commission (CVC) and sent a complaint to CVC by email. The copy of the
said e-mail got marked as Ext.P4. He took a print out of it and showed it to
PW1. Till He took a print out of it and showed it to PW1. Till about noon
next day nobody responded. The crime branch office was next to his office at
Panampailly Nagar.
23. PW2 deposed that next day afternoon ie, 11.12.2003 he went to
the Crime Branch office and asked somebody regarding this. There he was
directed to approach the Kerala Government Vigilance Office and therefore,
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he along with PW1 came to the Vigilance office in the evening on the same
day, from where he was to approach the CBI with the complaint as the
accused is a Central Government Officer. Then they came back to their
office and drafted a complaint to the SP, CBI, Cochin. As it was late, they left
home and on the next morning at about 9 am they visited the CBI office.
According to PW2, that was an extremely busy period for him as it was
December. They were sent to the SP, CBI from the reception. After hearing
them, the SP called PW11 to his room. PW11 came and he along with PW1
went to the room of PW11. PW2 once again explained PW11 briefly and
sought excuse as he was very busy. PW2 went to his office after entrusting
the matter with PW1 and PW11. Ext.P1 is the complaint given to the CBI. On
12.12.2003 he was available in his office for the whole day. He issued Ext.P6
series cheques to PW1. PW1 came to him after 10 am, obtained Ext. P6
series cheques, went away and brought the DD and the cash. After entrusting
the DD with the receptionist, PW1 went back to the CBI office. At around 1
p.m, PW1 gave him an intercom call from his room in the office and stated
that CBI has taken up the matter. After 3 p.m one of his staff came and told
him that the accused came and obtained the bribe and the CBI people caught
the accused. PW4 also fully supported the versions of PW1 and PW2.
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24. In this case, crime was registered based on Ext.P1 complaint
lodged by PW1 and Ext.P7 is the entrustment mahazar whereby the
complainant entrusted Rs.30,000/- to the detecting officer and he in turn
gave back the same to PW1 to give the same to the accused.
25. Even though the accused raised a contention that he did not
visit M/s Paradigam IT Pvt. Ltd on 12.12.2003, the evidence of PW3, the
receptionist of M/s Paradigam IT Pvt. Ltd, is clear to the point that the
accused visited M/s Paradigam IT Pvt.Ltd.
26. It is true that MO4 micro casette was placed at the time of
trap and the recordings were stated as 'Hello Hello Hello' as could be seen
from Ext.P48. But before that there was introduction by K.Senthil Kumar,
Simon P.J and K.Sreekumar who are PWs 1, 2 and 4 and it was thereafter
a pause' Hello Hello Hello,' Yes sir, Note it.' Even though in Ext.P48 the
expert stated that he had examined Q1, recorded telephonic conversation
and in fact the same is not telephonic conversation and it is the direct
conversation. Merely because the expert stated that the conversation as a
telephonic conversation, the same is not a reason to disbelieve Ext.P9 and
Ext.P48 report suggesting that the voice marked as Ext.Q1(A) is the voice
of the same person whose specimen voice marked as S1(A) (Sri.K.Senthil
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Kumar) and voice marked as Q2(A) is the voice of same person whose
specimen voice is recorded and marked as Ext.S-2A (Sri.Suresh Kumar)
beyond reasonable doubt.
27. Coming to substantive evidence, the evidence of PWs 5, 7
and 11 required to be discussed. Here, the evidence of PW5 who had
been working as Assistant EPF Commissioner, Kochi would show the
procedure for getting remittance of EPF dues and according to him for
which code numbers should be allotted by the Assistant Provident Fund
Commissioner in charge of Enforcement. In the instant case, PW8 affixed
his signature in Ext.P3 letter and PW6 made an endorsement 'Depute
Sri.Sureshkumar'. Ext.P30 is the carbon copy of the work assignment
prepared on the basis of Ext.P3 endorsement and Ext.P31 is the coverage
in relation to M/s Paradigam IT Pvt. Ltd. PW7 who worked as UD clerk in
Enforcement Section-I at the EPF Office, Ernakulam during 2003 gave
evidence that Ext.P3 letter reached her through PW6 and she made
Ext.P32 office note and the same was put up to PW6 and Exts.P30 and
P30(a) were prepared by her. PW8 who was working as Assistant
Commissioner to the EPF Office had given evidence. PW11, who was
working as an Additional SP also supported Ext.P1 statement given by
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PW1 and registration of Ext.P1 FIR viz, RC/29/A/2023. He also supported
the evidence of PWs 1, 2 and 4 in the matter of pre-trap as well as post-
trap proceedings.
28. On a perusal of evidence of PWs 1, 2 and 4 and other
witnesses, even though they were subjected to searching cross-
examination, nothing extracted to shake their versions. No material
contradiction also found to be extracted. Therefore, their evidence found to
be wholly reliable. Thus the Special Court rightly found that the prosecution
succeeded in proving that the accused while working as Enforcement
Officer of the Employees Provident Fund Organisation, Kochi demanded
Rs.30,000/- as illegal gratification on 12.12.2003 and in consequence
thereof, he accepted the same. That apart, the bribe money marked as
MO12 series were recovered from him and when his hands were dipped in
Sodium Carbonate solution as part of the Phenolphthalein test, the same
showed the pink colour change, strongly supporting the prosecution case.
29. Although it is argued by the learned counsel for the
accused/appellant that the conversation between the accused and PW1 for
which Ext.P48 expert opinion also was obtained could not be relied on
because the same would depict the conversation as that of a telephonic
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conversation, it appears that in fact mere use of 'Hello Hello Hello' during
conversation and on misunderstanding, the expert opined that the same as
telephonic conversation. Therefore, the same by itself is not a reason to
discard expert opinion and recorded conversation which would support the
prosecution case. Most importantly, apart from the telephonic conversation,
substantive evidence of PW1, PW2 and PW4 supported by the evidence of
the other witnesses available sufficiently established the prosecution case,
without iota of reasonable doubt. Thus even without the support of the
recorded conversation, the prosecution allegations are proved beyond
reasonable doubt with the aid of substantial evidence discussed in detail.
30. 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 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
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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. xxxxx
(2) Any public servant who commits criminal misconduct shall
be punishable with imprisonment for a term which shall be
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not less than four years but which may extend to ten years
and shall also be liable to fine.
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 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
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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. 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
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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, 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
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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."
31. 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
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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 mentioned in the said Section. The said presumption has to be
raised by the court as a legal presumption or a presumption in law.
32. To sum up, this Court is of the view that the learned Special
Judge rightly entered into conviction finding commission of offences
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punishable under Sections 7 and 13(2) r/w 13(1)(d) of the PC Act, 1988 by
the accused/appellant and the said conviction does not require any
interference.
33. Coming to the sentence, the medical condition of the
petitioner as argued by the learned counsel for the accused/appellant can
be considered, but that may not by itself would not be sufficient to reduce
the sentence beyond statutory minimum, as such a course of action is not
legally permissible since a court has no power to reduce the sentence
beyond the statutory minimum unless the penal statute does not provide
so.
34. In view of the above, the appeal is allowed in part and the
conviction imposed by the Special Court is confirmed and the sentence is
modified as under:-
(i) The accused/appellant is sentenced to undergo simple
imprisonment for a period of six months for the offence
punishable under Section 7 of the PC Act, 1988 and to pay fine
of Rs.10,000/-. In default of payment of fine, the
appellant/accused to undergo simple imprisonment for a period
of one month.
(ii) The accused/appellant is sentenced to undergo simple
imprisonment for a period of one year for the offence punishable
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under Sections 13(2) r/w 13(1)(d) of the PC Act, 1988 and to pay
fine of Rs.5,000/-. In default of payment of fine, the
appellant/accused to undergo simple imprisonment for a period
of two weeks.
35. The substantive sentence shall run concurrently and the
default sentences shall run separately. The accused is entitled to get set
off.
36. The order suspending execution of sentence and granting bail
to the accused/appellant is vacated with a direction to the
accused/appellant to surrender before the Special Court forthwith to
undergo the modified sentence without fail.
Registry is directed to forward a copy of this order to the learned
Special Judge for information and execution of the modified sentence.
Sd/-
A. BADHARUDEEN
JUDGE
Sru
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APPENDIX OF CRL.A NO. 1892 OF 2005
PETITIONER'S ANNEXURES
Annexure A TRUE COPY OF THE CERTIFICATE DATED 17-11-2014
ISSUED FROM AIMS, KOCHI
Annexure -B TRUE COPY OF CERTIFICATE ISSUED FROM AIMS,
KOCHI DATED 3-3-2018
Annexure-C TRUE COPY OF THE DISCHARGE SUMMARY ISSUED
FROM AIMS, KOCHI DATED 14-4-2022
Annexure -D TRUE COPY OF THE CERTIFICATE DATED 05-12-2023
ISSUED BY DR.SUBRAMANIA IYER OF AMRITA
INSTITUTE OF MEDICAL SCIENCES, KOCHI
Annexure-E THE CERTIFICATE DATED 05-12-2023 ISSUED BY
DR.PRAVEEN V.P OF THE DEPARTMENT OF
ENDOCRINOLOGY AT AIMS, KOCHI
Annexure-F TRUE COPY OF THE CERTIFICATE DATED 05-12-2023
ISSUED BY DR.SANDEEP SURENDRAN AT AIMS KOCHI
