Appellant is aggrieved by the conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, “the Act”) and the sentences imposed thereunder by the Enquiry Commissioner and Special Judge, conducting trials under the said Act.
2. Case against the appellant is thus:
While working as Sub Registrar, Peerumedu, the appellant demanded illegal gratification from PW2 to a tune of `3,500/- for registering seven documents. Subsequently she reduced the bribe amount to `3,000/-. On 08.11.1999 at about 11.30 a.m. she accepted `2,000/- towards part payment of the illegal gratification from PW2 and registered only five documents and refused to register the remaining two documents as the entire amount demanded by her was not paid by PW2. It is the prosecution case that the appellant reiterated her illegal demand for `1,000/- on 20.11.1999 at about 2.00 p.m. also. On 23.11.1999 at about 2.20 p.m. she accepted `1,000/- from PW2 from her office and thereby committed the above said offences.
3. Prosecution examined seven witnesses and marked 17 documents. Two witnesses were examined on the defence side and 13 documents were marked by the defence. MOs 1 to 9 series are the material objects exhibited by the prosecution.
4. Heard Sri. Babu Karukappadath, the learned counsel for the appellant and Smt.V.H.Jasmine, the learned Public Prosecutor. I have carefully perused the evidence in the records.
5. The appellant was a public servant defined under Section 2(c) of the Act at the material time is not a disputed point. Likewise, there is no dispute raised against Ext.P1, the order of sanction for prosecution issued by PW1, the then Registration Inspector General, Kerala. So the question coming up for resolution is whether the appellant demanded bribe from PW2 as alleged and whether she received the amount as stated by the prosecution.
6. Prosecution case unfolded through evidence is thus: PW2 is an agriculturist residing near Peerumedu. He wanted to sell out 40 cents of land to seven persons. Apart from his land, those belonging to his aunt and brother were also proposed to be sold. His sister, Smt.Sulfath was the holder of a scribe licence. She prepared 13 sale deeds. When these sale deeds were presented for registration, the appellant, then Sub Registrar at Peerumedu, rejected all these deeds for one flimsy reason or another. PW2 got seven sale deeds prepared through another licensed scribe. When the documents were presented for registration, about three days prior to the trap, the appellant demanded bribe at the rate of `500/- for each document. PW2 informed the appellant that it was difficult to pay bribe since the purchasers were members belonging to Scheduled Caste and financially they were in lower strata. The appellant took an adamant stand that she would not register the documents unless the bribe was paid. Finally, PW2 agreed to pay `2,000/- to the appellant and after further deliberations, the appellant reduced the rate of bribe to `3,000/-. Then PW2 gave `2,000/- to the appellant as bribe and `1,525/- towards the registration fees for five sale deeds, at the rate of `305/- per document. After two days, PW2 went to the appellant for getting the remaining two sale deeds registered. At that point of time also, the appellant demanded the balance bribe money of `1,000/- and registration fees of `610/-. As PW2 was not inclined to pay any further bribe, he preferred a complaint to PW7, then Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Idukki. Thereafter, PW7 recorded the statement of PW2, which is marked as Ext.P2. PW7 registered the case. He arranged for the presence of two independent witnesses namely, CW2 and PW3. On 23.11.1999, at about 8.45 p.m. Ext.P2 FIS was prepared and all the formalities for accomplishing a trap were made by PW7. As instructed by PW7, PW2 produced trap money consisting of two currency notes of `500/- denomination. PW7 noted serial numbers of the currency notes and put identification marks on the same. At the trial, the notes are proved as MO1 series. As directed by PW7, one Constable demonstrated the Sodium Carbonate - Phenolphthalein test. He smeared phenolphthalein powder on the decoy currency notes and handed them over to PW2. PW7 instructed PW2 that the notes should be given to the appellant only on specific demand on her part. It was also instructed that after giving the bribe, PW2 should show signal so that detection could be made.
7. At about 10.00 a.m., all of them proceeded to the office of the appellant and reached there at 12.30 p.m. Since nothing did happen before lunch break, they waited till 2.00 p.m. to lay the trap. It is the case of PW2 that he told the appellant that he had brought the amount demanded by her besides the registration fees. Definite case of PW2 is that when he offered the amount to the appellant, she asked PW2 to place the amount on the table. In fact, the prosecution has no case that the appellant accepted the bribe money in her hand. When PW2 placed the amount on the table, the appellant put a register on the currency notes. PW2 handed over the documents to the appellant, who in turn gave it to the Head Clerk (PW4) for verification. On verification, PW4 found out certain omissions in the documents. PW2 took back the documents and went out of the office stating that he would add the omitted words. He showed the pre-arranged signal. On receipt of the signal from PW2 at about 2.20 p.m., PW7 and the trap witnesses rushed into the office of the appellant. PW7 revealed identity and questioned the appellant whether she did receive any amount from PW2. Although the appellant answered in the negative, she was throughly perplexed. Ultimately the notes kept under the register were unearthed. Hand wash of PWs 3 and 7 and CW2 was taken, but there was no colour change to the lime solution. MO2 is the sample of that solution. Right hand wash of the appellant was taken, which is marked as MO3. There was no change of colour of solution. Left hand of the appellant was washed and the colour of the lime solution turned pink. MO4 is the sample of that solution. On the instruction of PW7, PW3 took the currency notes from the table and they were found tallying with the descriptions noted earlier. Corner portion of the currency notes were dipped in the sodium carbonate solution, thereby giving the same pink colour. Thereafter hand wash of PW3 was taken and the solution turned pink. MOs 5 and 9 are the samples of those solutions. MO7 is the receipt found under MO1 series currency notes. Corner portion of MO7 was dipped in the sodium carbonate solution and that also turned pink, which is marked as MO8. Thereafter, the appellant was arrested. Ext.P14 is the arrest memo. Ext.P5 is the mahazar prepared narrating all the details regarding the detection of offence.
8. Learned counsel for the appellant contended that the prosecution case cannot be accepted either on legal or on factual grounds. He placed strong reliance on Ext.D13, which is a complaint submitted by the appellant to the Home Minister, State of Kerala through proper channel. Learned counsel for the appellant submitted that this is a classic example where an honest officer was entangled and entrapped in a corruption case to wreak vengeance of PW7 and some of his associates. It is contended that PW2 was also having reasons to be spiteful towards the appellant. PW2's sister was a licensed scribe attached to the Sub Registrar's Office, Peerumedu, wherein the appellant was the Sub Registrar. She obtained a Government job at the relevant time. PW2 presented certain documents written by his sister, who was a Government employee at the material time, for registration before the appellant. The appellant took a definite stand that a Government employee cannot pursue other avocations of profit during the currency of employment and the documents prepared by her could not be registered. PW2 informed the appellant that if the documents were not registered, he would suffer financial loss. Since the appellant adhered to a principled stand, PW2 became enmical towards her. PW2 made a further demand to provide him 200 copying sheets. That was also turned down by the appellant because copying sheets could be given only to licensed persons. It is the case of the appellant that PW2 is a busy body eking out a livelihood as a middleman. PW7 called the appellant one day over phone and tried to influence her in order to help out one of his close associates. PW7 wanted the appellant to refrain from forwarding certain documents registered in the name of one Kasim to the District Registrar for taking action against undervaluation. Said Kasim was the house owner of PW7. In spite of the insistence by PW7, the appellant reported undervaluation in respect of three documents of said Kasim, which antagonized PW7. Learned counsel for the appellant therefore contended that the case was foisted on her by PWs 2 and 7 to tarnish her reputation and endanger her job. Learned counsel further contended that true facts mentioned in Ext.D13 were submitted to the Government immediately after the incident. It is, therefore, contended that the appellant has a consistent case from very beginning. Learned counsel further submitted that the defence case was not properly considered by the trial Judge.
9. Learned counsel for the appellant argued that even if we accept the prosecution case that the appellant received two currency notes of `500/- denomination, she cannot be held guilty as the statute governing registration of documents enjoin the Sub Registrar to do so. Reliance is placed on some provisions of the Registration Act, 1908 and the Registration Rules (Kerala). Section 80 of the Registration Act falling under Part XIII of the statute says that all fees for the registration of documents under the Act shall be payable on the presentation of such documents.
10. My attention is drawn to Rule 29(i) of the Registration Rules (Kerala), which reads as follows:
“29(i) A document for registration other than copy of a document forwarded under Section 89 of the Act shall be presented in person, with the prescribed fees, direct to the Registering Officer and not to a clerk or peon.”
11. On the above footing, it is argued by the learned counsel for the appellant that it was the statutory duty of the appellant as the Sub Registrar to accept a document when presented for registration along with the prescribed fees. Prosecution case is that PW2, as instructed by PW7, produced the documents for registration along with `1,000/- by way of two decoy currency notes, each of `500/- denomination. Learned counsel for the appellant vehementally argued that neither PW2 nor PW7 or PW3 has a case that in addition to the two decoy currency notes of total worth `1,000/-, the required registration fees, ie. `610/-, was also paid by PW2. That is an important circumstance in this case. A person, who wanted to entrap a corrupt public servant should have taken enough precautions to see that he/she is falling in the trap. In other words, PW2, the self proclaimed morally correct person aggrieved by the demand for bribe, or PW7, the experienced Police Officer working in the Vigilance and Anti Corruption Bureau, who laid the trap, should have taken care to see that PW2 handed over the bribe money to the appellant and also the statutory fees for registration of documents. As rightly contended by the learned counsel for the appellant, there is no explanation at all offered by PW2 or PW7 for not paying the admitted registration fees of `610/- for registering two documents on the date of detection of the alleged offence. Learned counsel for the appellant further contended that PW2 was legally bound to remit `610/- as registration fee for two documents and the appellant, as Sub Registrar, was legally bound to accept the amount along with the documents presented for registration. It is also important to note that as a person well versed in these matters, PW2 should have presented the statutory fees separately. Going by the above statutory provisions, it cannot be said that the appellant accepted bribe from PW2, contended the learned counsel. Furthermore, the learned counsel argued that had PW2 paid `1,000/- not by way of two notes in `500/- denomination, but in lesser denominations like `50/- or `100/-, then it could have been contended by the prosecution that the appellant accepted bribe because she could not have accepted any amount in excess of `610/-. Instead of giving the exact fees of `610/-, PW2 remitted `1,000/- by way of two `500/- currency notes and hence, the appellant was forced to receive it, contended the learned counsel. To controvert this contention of the appellant, the prosecution has no convincing reply. It is true that the appellant as the Sub Registrar, was bound to collect fees from a party, who wanted to get a document registered. It is equally true that the party could have remitted the exact fees to the Sub Registrar as the quantum of the fees was an ascertained sum. Instead of doing that, payment of `1,000/- by way of two `500/- currency notes smeared with phenolphthalein powder, that too with the absolute certainty in the mind of giver that the recipient was legally bound to accept it, cannot be said to constitute acceptance of bribe. Therefore, the prosecution case is highly doubtful and unconvincing if viewed from this angle.
12. Learned counsel for the appellant pointed out the definite suggestions put to PWs 2 and 7 to show that they nurtured ill-feelings towards the appellant. Notwithstanding that they denied the case suggested by the defence on the basis of Ext.D13, I find considerable amount of probability in the defence case. It is all the more clear if we consider the manner in which the trap was arranged, especially when things were so arranged that by no reason the appellant could have avoided acceptance of the decoy notes handed over by PW2.
13. On a careful scanning of the oral evidence adduced by PW2, the complainant; PW3, the gazetted officer, who witnessed the trap and PW7, the trapping officer, I find valid reasons to accept the defence case that there was no attempt to handover `1,000/- to the appellant as bribe, allegedly demanded by the appellant, over and above the prescribed registration fees. Absence of such a case for the prosecution is a great infirmity. It is seen from their evidence that the appellant did not accept bribe in her hand. PW2 would depose that he was asked to place the money on the table top and thereafter the appellant placed a register on it. During cross-examination of material witnesses as well as through the evidence of DW2 the defence suggested a case that PW2 clandestinely slid the decoy notes under a book kept on the appellant's table. DW2 would testify that he saw PW2 standing by the side of appellant's table and taking away documents from the appellant for making some corrections suggested. It is an indisputable proposition that evidence adduced by the defence witness cannot be straight away discarded without a close scrutiny. The totality of circumstances brought out by the defence through the cross-examination of material prosecution witnesses and the examination of defence witness show that the prosecution case is highly improbable. PW2 was a former Head Clerk of the Sub Registrar's Office, Peerumedu. Through this witness the defence elicited that PW2 was working as a middleman for many persons. His sister was a scribe licensee. PW4 also stated that while working as a Government employee, a person cannot function as a scribe. PW4 in cross-examination deposed that the decoy notes were pointed out by PW7, the Dy.S.P., which were kept under a register placed on the appellant's table. This would indicate that there was a concerted attempt to ensure that the appellant could not have avoided receipt of two `500/- currency notes smeared with phenolphthalein powder.
14. Let us now consider the nature of charges levelled against the appellant. Allegation is that she committed two offences under the Act, viz., taking gratification other than legal remuneration in respect of an official act and criminal misconduct by obtaining through corrupt or illegal means a valuable thing, viz., cash in this case.
15. Section 7 of the Act deals with acceptance of illegal gratification by a public servant. It provides for punishment of a public servant taking bribe and not for the giver of bribe. It reads as follows:
“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.
Explanations.- (a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”
On a scrutiny of this Section, it is evident that mere demand or solicitation of gratification by a public servant would not constitute an offence. It must have a bearing on doing or forbearing to do any official act. In order to bring home the guilt of a public servant, it is not necessary to prove that he has actually accepted or obtained illegal gratification. It is enough if it is shown that he had agreed to accept illegal gratification. The words “obtains or attempts to obtain” include threat or extortion. In order to attract the offence, it is not essential that the payment of illegal gratification should be made into the hands of the public servant. It may be made into the hands of a person designated by him. Supreme Court in Trilok Chand Jain v. State of Delhi (AIR 1977 SC 666) held that the question whether a Government servant taking tainted money had the requisite incriminating motive is one of fact.
16. In catena of decisions, it has been observed that it is somewhat difficult to establish the charge under this Section, as direct evidence, in most cases, will be meagre and of a tainted nature. But, the prosecution cannot be allowed to relieve of any part of its burden to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been given due weight and still room exists for taking a view that the possibility of innocence has not been excluded, however strong the suspicion may be, the accused is entitled to acquittal. (see Sita Ram v. The State of Rajasthan (AIR 1975 SC 1432), Suraj Mal v. The State (Delhi Administration) (AIR 1979 SC 1408), J. A. Naidu etc.
v. State of Maharashtra(AIR 1979 SC 1537) and Ayyasami v. State of T.N. (AIR 1992 SC 644)) . In one case, the Apex Court held that where in a trap case tainted money was recovered from the drawer of the accused's table and the trap witness stated that the accused had asked to put the money in the drawer, in the absence of corroborating evidence it cannot be relied upon, more particularly when the plea of the accused that it was planted in his absence and without his knowledge was found to be probable. The accused was found to be entitled to benefit of doubt.(see M.
K. Harshan v. State of Kerala(AIR 1995 SC 2178).
17. Decisions are aplenty to support the proposition that where on information that bribe has been demanded or solicited and a trap is laid to catch the public servant making the demand, the witnesses participated in the trap are not accomplices, since they have not the necessary criminal intention. But, they are partisan or interested witnesses and their evidence must be tested in the usual way, which may vary from case to case. (see Ramanlal Mohanlal Pandya v. The State of Bombay (AIR 1960 SC 961), Dalpat Singh and another v. State of Rajasthan (AIR 1969 SC 17) and Ram Prakash Arora v. The State of Punjab (AIR 1973 SC 498)).
18. In this case, the material for establishing the demand of bribe by the appellant is the sole testimony of PW2. For the above mentioned reasons, his evidence cannot be accepted as natural or credible. It is established by the defence that he had oblique motives for fixing the appellant. Therefore, the unsupported testimony of PW2 cannot be safely relied on to accept the prosecution case that the appellant demanded bribe.
19. Section 13 of the Act deals with a distinct offence. It declares the criminal misconducts by a public servant under the circumstances enumerated therein and prescribes the punishment. Relevant portion reads as follows:
“13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct, -
(a) to (c) xxxxxxxxx
(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; or
(e) xxxxxxxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.”
20. On a careful reading of the above provision, it is evident that in order to come within the sweep of the terms “criminal misconduct by a public servant”, it is sufficient if by corrupt or illegal means a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. It is clear that the illegal gratification need not be in terms of money. If a public servant, by abusing his position as such, obtains for himself or for any other person any valuable thing or pecuniary advantage also commits criminal misconduct. Another limb of the Section shows that a public servant, while holding the office as such, if obtains for any person any valuable thing or pecuniary advantage without public interest is also committing a criminal misconduct. The words “without public interest” assumes importance because a public servant is bound to discharge his duty keeping in mind the utmost public interest.
21. Learned Prosecutor contended that when a delinquent official is caught red-handed in a trap laid by an officer and the complainant's evidence is corroborated by the evidence of the trap officer, then the complaint cannot be rejected merely because he was aggrieved against the bribe taker. In order to buttress the above contention, reliance is placed on a decision rendered by the Supreme Court in State of U.P. v. Zakaullah (AIR 1998 SC 1474). There cannot be a dispute regarding the above proposition. Normally a person aggrieved by the demand of bribe initiates proceedings to entrap a delinquent public servant. But, in this case the fact situation is totally different. Here, the definite defence case is that PWs 2 and 7 had bitter enmity towards the appellant for other reasons and she was fraudulently and vexatiously put in the trap. Therefore, the principle in the above decision is not applicable to this case. Similarly the decision relied on by the learned Prosecutor in V.K.Kannan v. State Rep. by Inspector of Police (AIR 2010 SC 166) is also distinguishable on facts. Even though the learned Prosecutor relied on B.Noha v. State of Kerala & another (2006 (8) Supreme 616), the facts in that case are completely dissimilar to those in this case and, therefore, the said citation will not improve the prosecution case.
22. Learned Prosecutor submitted that the presumption in Section 20 of the Act will also support the prosecution case. The Section reads as follows:
“20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”
The presumption contained in the above Section is a presumption of law. As it is well settled, a presumption of law can either be conclusive or rebuttable. The presumption contained in the above provision is a rebuttable one. Conclusive presumptions or irrebuttable presumptions are inferences which the law makes peremptorily, that it will not allow them to be overturned by any contrary proof, however strong they may be. Fictions of law are closely allied to irrebuttable presumptions of law. Rebuttable presumptions of law are the result of general experience of noticing a connection between certain facts or things, the one being usually found to be the companion or the effect of the other. The connection, nevertheless, in this class is not so uniform as to be conclusively presumed to exist in every case. In this class, the law defines the nature and amount of evidence, which is sufficient to establish a prima facie case and to throw the burden of proof upon the other party.
23. There cannot be any doubt to the proposition that the prosecution has to discharge its burden by adducing sufficient evidence to prima facie hold the accused within the frame of the penal provision. The prosecution legally cannot succeed by merely relying on the presumption in Section 20 of the Act. The presumption of law would only add strength to the prosecution case. Then, it becomes obligatory for the accused to rebut the presumption either by picking up improbabilities from the prosecution evidence or by adducing sufficient evidence to shatter the prosecution case. Here, in this matter, the prosecution evidence would not show that the appellant accepted bribe of `1,000/- for the reasons mentioned above. The demand of bribe made by the appellant to PW2 previous to the trap is also not convincing because the defence successfully established that PW2 had an axe to grind against the appellant.
24. Learned counsel for the appellant placed strong reliance on the observations in Bal Krishan Sayal v. State of Punjab (AIR 1987 SC 689). It was alleged therein that for waiver of penal rent of `102/- in respect of an official residence of the complainant, he offered a bribe of `100/- to the appellant. On evaluation of the preponderance of probabilities, the Supreme Court held that to obtain a waiver of rent to a tune of `102/-, it was most unlikely that a bribe of `100/- would have been offered. On that reason, it was held that the offence was not proved beyond reasonable doubt. Although the facts are not similar to this case, the importance of preponderance of probability in such matters can be deduced from the above decision.
25. To sum up the discussion, I find that the prosecution evidence, if taken in its entirety, will not establish that the appellant demanded bribe as alleged and she accepted bribe on 23.11.1999 as contended by the prosecution. Finding of the trial court, therefore, is not legally sustainable. Hence it requires interference.
In the result, the appeal is allowed. Convictions of the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 are hereby set aside. Appellant is acquitted of all the charges. She shall be set free forthwith, if not wanted in any other case. Bail bond executed by the appellant shall be cancelled.
All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.
cks