Appellant is aggrieved by the judgment of the Enquiry Commissioner and Special Judge, Thiruvananthapuram convicting him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, “the Act”). 3 ½ years of imprisonment, each under Sections 7 and 13(2) of the Act, was imposed on the appellant. Legality and propriety of the conviction and sentence are impugned in this appeal.
2. Short prosecution case is thus:-
PW2 was a surety to one Sunil in a case pending before the Judicial First Class Magistrate Court-II, Thiruvananthapuram. The accused in that case absconded. Therefore, a Miscellaneous Case (M.C.) was registered in the name of the accused and PW2. In that case, learned Magistrate directed PW2 to pay penalty of `3,000/- under Section 446 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”). Since he failed to pay the amount, a warrant was issued against him for realisation of the amount. PW2 stated that he was apprehended by Police in connection with that warrant and was taken to Fort Police Station, Thiruvananthapuram. His bicycle, wrist watch, fountain pen, wallet, etc. were taken into custody by the Police. Thereafter, he was produced before the Magistrate. Learned Magistrate granted time for paying penalty and he was released. PW2 went to the Police Station on 09.12.1998 for getting his movable properties back. The accused/appellant was the Station Writer. He demanded bribe of `1,500/- from PW2 for releasing the movable properties. Infuriated by that demand, PW2 approached the Dy.S.P., Vigilance and Anti Corruption Bureau, Thiruvananthapuram (PW6) and gave Ext.P4 first information statement. On that basis, Ext.P4 (b) first information report was registered. Thereafter, as arranged by PW6, a trap was laid and the appellant was arrested for the aforementioned offences. After completing all the formalities, a final report was filed before the learned Special Judge. After framing charge, the learned Special Judge proceeded with the trial. Seven witnesses were examined on the prosecution side and 20 documents were marked. There was no defence evidence. Material objects are MOs 1 to 6.
3. Heard the learned counsel for the appellant and the learned Public Prosecutor.
4. Ext.P4 FIS unfolds the prosecution case as mentioned above.
There are specific allegations made by PW2, the author of Ext.P4, that the Station Writer of Fort Police Station, Thiruvananthapuram demanded `1,500/- as bribe for the release of movable properties belonging to him detained in the Station. However, when PW2 was examined, he refused to support the recitals in Ext.P4. According to Ext.P4, the Station Writer demanded money on 09.12.1998 at about 12.30 hours in the noon. That fact is stated by PW2 at the time of evidence too. But, he would depose that the accused in the dock was not the person who demanded money from him. It is pertinent to note that the name of the person, who demanded bribe, was not mentioned in Ext.P4. At the time of evidence, PW2 stated that a person by name Ajith was the Station Writer and he demanded money. Since PW2 materially deviated from the prosecution case, the Prosecutor sought permission of the court under Section 154 of the Evidence Act to cross-examine him. At the time of examination, PW2 admitted that he gave Ext.P4 and his signature could be seen thereon. Main dispute is regarding identity of the person, who demanded bribe from PW2. Stated differently, PW2 has a consistent case that he was arrested in connection with a miscellaneous case and his valuable articles belonging were taken by the Police Officers and kept in the Police Station. It is also his case that for the release of the articles, Station Writer demanded bribe. However, he would depose that the appellant was not the Station Writer, who demanded bribe and he did not pay any bribe to the appellant. Therefore, the question to be resolved is whether the appellant can be implicated in a case for demanding bribe and obtaining bribe from PW2.
5. PW2, when cross-examined by the learned Prosecutor, stated that on 09.12.1998 at about 12.30 hours in the noon the Station Writer demanded bribe and he went to the Vigilance and Anti Corruption Bureau on 10.12.1998 at 10.30 a.m. and gave Ext.P4. Records would show that the trap was on 10.12.1998. Learned trial Judge recorded in the deposition the description of so-called Ajith as a person having a height of nearly 4½ feet. It is observed by the trial Judge that the physical features and height of the person described by PW2 would clearly reveal that he could not have been selected as a Police Officer. This is one of the reasons stated by the learned trial Judge to disbelieve PW2. PW2 deposed that he gave two currency notes of denomination of `100/- and one currency note of denomination of `50/- to PW6, the Dy.S.P.. Dy.S.P. marked the decoy currency notes. In cross-examination, PW2 admitted that phenolphthalein powder was smeared on the decoy notes and the same were entrusted to him with an instruction to handover them only if the Station Writer demanded bribe. It is the testimony of PW2 that when he went to the Station, he could not find the person who demanded bribe from him on the previous day. It is his evidence that the appellant was sitting on a bench outside the Station Writer's room and was reading some magazine. PW2 deposed that the appellant informed him that Station Writer had gone out. When appellant enquired, PW2 replied to him that he had to pay `250/- to the Station Writer. Then the appellant instructed PW2 to keep the money on the table of the Station Writer. As instructed by the appellant, PW2 kept money on the table top and went out. He would further depose that the appellant neither came to the room nor even peeped into the room. He was still sitting on the bench when PW2 left the room. However, the fact remains that two currency notes of `100/- denomination marked by PW6 and smeared with phenolphthalein powder were recovered from the appellant. When cross-examined by the learned Prosecutor, PW2 admitted that the appellant was the only person who knew that PW2 had placed money on the table of the Station Writer. PW2 conceded that he did not ask whether the said Ajith got the money. Prosecution has a definite case that the appellant received decoy notes from PW2 from the side of a bunk run by PW1 in the front side of the Police Station. It has a further case that though `250/- was paid by PW2 to the appellant, he returned `50/- to PW2 as latter had no cash left with him. However, the evidence of other reliable witnesses would show that two currency notes smeared with phenolphthalein power were recovered from the possession of the appellant. Hence the relevant point to be decided remains whether the appellant demanded and accepted bribe from PW2 as seen in Ext.P1 mahazar.
6. PW1 also refused to support the prosecution case.
Prosecution wanted this witness to say that he was running a bunk in front of the Police Station. But he would depose that he was a newspaper agent at the material time and he never run the bunk as propounded by the prosecution. He is a signatory to Ext.P1 recovery mahazar. But, he refused to support the prosecution case that the decoy notes were recovered from the accused in front of his bunk, as he disowned any connection with the bunk. In spite of cross-examination, nothing worthwhile could be elicited from PW1 to show that he owned the bunk. In cross-examination, he deposed that he is afraid of policemen. When cross-examined by the defence counsel, he would admit that there was a tea shop on the southern side of Police Station, but not owned by him.
7. Learned counsel for the appellant argued that the prosecution case, that the appellant demanded bribe from PW2 on the previous day of trap, had gone unestablished. Since PW2 turned hostile to the prosecution and refused to support the prosecution case that the appellant demanded bribe from him for releasing movable property, it is contended by the learned counsel that the offence under Section 7 of the Act is not attracted in this case. Law is well settled that a witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful as prima facie a witness who makes different statements at different times has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (State of Rajasthan v. Bhawani and another - AIR 2000 SC 4230). The Apex Court in Paramjeet Singh v. State of Uttarakhand (AIR 2011 SC 200) held that the evidence of a person does not become effaced from the record merely because he has turned hostile. His deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution. It is trite that the offences declared under Sections 7 and 13(1)(d) of the Act are distinct ones. In the case of Section 7 of the Act, a mere demand or solicitation of gratification by a public servant amounts to an offence. The wording used in Section 7 of the Act would show that whoever, being a public servant, attempting to obtain from any person any gratification other than legal remuneration is said to have committed the offence under the Section. The offence contemplated under Section 13 of the Act lies in actual obtaining of any valuable thing or pecuniary advantage as those are treated as criminal misconduct by a public servant. Therefore, the question to be resolved is whether the offences alleged by the prosecution have been made out from the totality of evidence adduced by the prosecution.
8. PW5 at the material time was holding the charge of City Police Commissioner, Thiruvananthapuram. He issued the sanction order to prosecute the appellant, which is marked as Ext.P17. Ext.P17 was properly proved through PW5. The fact that PW5 was competent to remove the appellant from the service at the material time is not in dispute. Dispute raised by the appellant is regarding the fact whether he was the Station Writer at the material time or not. However, there cannot be any dispute regarding the legality and propriety of sanction issued by PW5 to prosecute the appellant under Section 19 of the Act.
9. PW6 is the Dy S.P. in the Vigilance Department, who laid and conducted the trap. He deposed that on 10.12.1998 at 10.30 a.m. PW2 reached in the office of PW6 and gave Ext.P4 FIS . On the basis of that, Ext.P4(b) FIR was registered. PW6 further deposed that two currency notes of `100/- denomination and one currency note of `50/- denomination produced by PW2 were marked by PW6. Ext.P9 entrustment mahazar was also proved by PW6. It is his definite version that on all the three currency notes one Constable applied phenolphthalein powder. PW2 was instructed to handover the currency notes if only the appellant made a demand for bribe. PW2 was further instructed to show signal in case the appellant accepted the bribe. PW2 went into the Station and after sometime, he gave signal, as instructed, from the front side of PW1's bunk.
PW6 and decoy witnesses went to the place where PW2 and the appellant were standing. According to the testimony of PW6, PW2 informed him before detection of the offence that when he met the appellant at the Police Station, latter asked whether PW2 had brought money as demanded and he replied to the appellant that `250/- had been brought. Thereafter, the appellant along with PW2 went to the side of a bunk run by PW1 and from there PW2 handed over money to the appellant. PW6 deposed that the money received from PW2 was placed in the shirt pocket by the appellant and when PW2 informed the appellant that he had no other money with him, he returned `50/-. After revealing identity, PW6 and other witness questioned the appellant as to whether he accepted bribe from PW2. Thereafter, four tumblers filled with lime water were brought. The detecting officer dipped his fingers in the first glass. There was no colour change for the lime water in that process. Thereafter, it was bottled, sealed and marked as A. The witnesses and PW6 put signature on the label affixed on the bottle. It is marked as MO2. Then appellant's fingers were dipped in another tumbler containing lime water, which turned pink due to chemical reaction of phenolphthalein and that is also bottled, sealed and labelled. That is marked as MO3. Subsequently PW6 caused PW3 to examine the shirt pocket of the appellant. Two currency notes of `100/- denomination could be recovered from his pocket. They were found to be tallying with the descriptions in Ext.P9 entrustment mahazar. The two currency notes are marked as MO1 series. PW3 was asked to dip the currency notes recovered from the appellant in lime water and those currency notes and the liquid became pink. That solution was also transfered to a bottle and sealed and marked as MO4 series. Thereafter, `50/- note returned by the appellant to PW2 was handed over by PW2. That also tallied with Ext.P9 entrustment mahazar. All the material objects were recovered from the place of detection and thereafter, Ext.P1 mahazar was prepared. It is also seen from the deposition of PW6 that the bicycle, wrist watch, fountain pen, wallet, etc. belonging to PW2 were produced by the appellant before PW6. All these things have been described in Ext.P10 mahazar. The articles in Ext.P10 mahazar were handed over to the Sub Inspector of Police (PW4) as per Ext.P12 mahazar.
10. PW6 was subjected to cross-examination by the appellant.
Appellant tried to develop a case that he was not the Station Writer at the material time. The defence case that FIR was produced on 11.12.1998 (next day of the trap) along with the remand report is denied by PW6. He would depose that the FIR was sent to the court on the date of its registration itself. PW6 deposed that details regarding phenolphthalein test were explained to the witnesses. However, the complete details regarding the same have not been mentioned in Ext.P9 mahazar. Defence case that the samples were manufactured from the Vigilance Office to trap the appellant is strongly denied by PW6. In spite of cross-examination, the testimony of PW6 remains credible and believable. PW3 is a witness present in the team at the time of trap. He was working as Assistant Director in the Office of the Director of Public Instruction. As directed by PW6, he went as a trap witness on 10.12.1998. Along with him, the AEO attached to his office (CW4) was also present. At about 12.30 p.m. PW3 reached in the office of PW6. At that time PW3 saw PW2 in the office of PW6. PW2 produced three currency notes, two of `100/- denomination and one of `50/- denomination. PW3 also stated that PW6 initialled on the currency notes and phenolphthalein powder was smeared on them. The definite version of PW3 revealed is that the notes were entrusted to PW2 with an instruction to give the notes only when demanded by the Station Writer. PW3 also deposed that after receiving signal, he along with PW6 went to the side of the bunk near the Police Station. After revealing identity of PWs 3 and 6, PW6 asked PW2 whether PW2 gave bribe to the appellant to which PW2 answered affirmatively. PW3 identified the appellant from the dock. When PW2 made the complaint and on its registration, the procedure for detection of offence by conducting phenolphthalein test was narrated by PW6. PW2 stated to PW6 that he received back `50/- from the appellant. PW3 also identified the material objects at the time of trial. PW3 was subjected to lengthy cross- examination by the defence counsel. I find no reason to discard the testimony of PW3 either as unconvincing or as unbelievable. Testimony of PWs 3 and 6 are mutually supportive to one another.
11. Appellant raised a specific contention that he was not the Station Writer at the material time. Prosecution relies on the testimony of PWs 4 and 5 to prove that the appellant himself was the Station Writer. PW4 worked as the Sub Inspector of Police, Fort Police Station, Thiruvananthapuram at the material time. He emphatically deposed that the appellant was the Station Writer on 10.12.1998. PW4 further deposed that there was no other Station Writer in that Police Station having the same name, S.Sukumaran. Number assigned to the appellant was 4782. Ext.P11 is the process register maintained in the Police Station. Relevant entries are Sl.Nos.1143 to 1667. Entry bearing Sl.No.1499 would show that the warrant issued by Judicial First Class Magistrate Court-II, Thiruvananthapuram in M.C.No.53 of 1998 had been executed against PW2. It was executed on 23.11.1998. That entry is marked as Ext.P11(a). One Head Constable by name Mohanan executed the warrant on 23.11.1998 and produced the arrestee before the court at 10 a.m. At that time PW4 was present in the Station. PW4 further deposed that when PW2 was arrested, he was possessing a wrist watch, bicycle, fountain pen, wallet, etc. PW4 entrusted these articles to the appellant. It is the definite case of PW4 that the appellant was the Station Writer and the Assistant Station Writer was an officer by name Janardhanan. PW4 stated that the articles mentioned above have been described in Ext.P10 mahazar. Testimony of PW4 would show that the articles stated above were in the custody of the appellant on 10.12.1998. PW4 further deposed that Ext.P13(a) is the entry revealing the arrest of the person involved in M.C.No.53 of 1998. The general diary in that Police Station is Ext.P13. PW4 deposed that duty assigned to each and every officer would be revealed from Ext.P13. Ext.P13(b) is the entry revealing the assignment of duty to the appellant as Station Writer. Ext.P13 further shows that on 10.12.1998 at about 4 p.m. the appellant (Station Writer No.4782) had been arrested by PW6. That entry is marked as Ext.P13(c). Arrest memo issued by PW6 is Ext.P14.
12. This witness was subjected to searching cross-examination.
PW4 deposed that a Police Officer by name Ajith was working in the Police Station, but he was the Assistant Station Writer. Appellant was not the Assistant Station Writer, but he was the Station Writer. Generally, the Police Superintendent or Commissioner would release orders appointing a particular officer as Station Writer, deposed PW4. When PW4 took charge in the Police Station, the appellant was the Station Writer. At the time of cross-examination of PW4, there was an attempt by the defence counsel to show that the overwritings in the general diary were intentionally made.
This suggestion was strongly denied by PW4. PW4 testified that SW is the abbreviation of Station Writer and ASW is that of Assistant Station Writer.
13. As mentioned above, PW5, then City Commissioner of Police in-charge, Thiruvananthapuram testified that the appellant was transferred and posted to the Fort Police Station, Thiruvananthapuram as per proceedings dated 06.12.1996. It is the testimony of PW5 that on the recommendation of the Sub Inspector of Police either a Head Constable or a Police Constable will be assigned with the duties of Station Writer. When cross-examined, PW5 also asserted that the appellant was working as Station Writer at the material time. According to him, to show that fact no separate record is necessary. PW5 further deposed that he had seen the records pertaining to the case and was fully satisfied that the appellant in the capacity as Head Constable was working as the Station Writer. It is the deposition of PW5 that he had inspected the Station several times and seen the appellant as the Station Writer. There is no reason to disbelieve these witnesses.
14. PW7 conducted investigation in the case and after investigation, he filed the final report.
15. Testimony of the material prosecution witnesses, excluding PWs 1 and 2, would clearly establish the prosecution case. Even if one considers that PW2 failed to identify the appellant as the person who demanded and received bribe, there are enough materials - both oral and documentary evidence - to show that the appellant received from PW2 two currency notes of `100/- denomination, marked by PW6 and smeared with phenolphthalein powder. In order to establish that there was a demand for `1,500/- as bribe by the appellant from PW2, there is no independent evidence, other than the retracted statement of PW2. Learned counsel for the appellant contended that basic ingredients to be satisfied for establishing an offence under Section 7 of the Act are completely absent in this case.
16. Per contra, learned Public Prosecutor contended that the unimpeachable evidence on the records coupled with Section 20 of the Act would show that the appellant is guilty of both the offences alleged against him. In this case, we are only concerned with Sub-sections (1) and (3) of Section 20 of the Act, which read 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) xxxxxx
(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 in Section 20 of the Act is a presumption of law and, therefore, it is obligatory on the court to raise the presumption in every case brought in this Section. However, it is the duty of the prosecution to establish basic facts to get the advantage of the presumption. On a reading of Sub-section (1) of Section 20 of the Act, it can be seen that in a case under Section 7 or Section 13 of the Act, if the prosecution wanted to derive the benefit of presumption under Section 20 of the Act, it has to prove that the 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, then 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 of the Act. Here PW2 is the only person, even according to the prosecution, who happened to hear the demand for bribe made by the appellant. It is true that PW2 in his FIS has categorically stated that he was not a consenting party to give bribe to the appellant and that is why he approached PW6 for trapping the appellant. Nevertheless, at the time of evidence, he completely deserted the prosecution case. Therefore, there is no reliable evidence available on the record to show that the appellant demanded bribe on previous day from PW2 for releasing movable articles belonging to the latter kept in the Police Station. Therefore, the essential element to be proved to establish an offence under Section 7 of the Act is lacking in this case. There is no independent evidence to hold that the appellant agreed to accept any gratification as a motive or reward for releasing the movable articles belonging to PW2. Therefore, I am of the view that the conviction of the appellant under Section 7 of the Act is not sustainable. I set aside the conviction of the appellant under Section 7 of the Act.
17. Regarding the conviction under Section 13(1)(d) of the Act, I am of the opinion that there are strong evidence against the appellant to show his culpability. Learned counsel for the appellant based on the decision in Subair v. Superintendent of Police, C.B.I./S.P.E. (1998 (2) KLT SN 14 (Case No.17)) contended that there is no provision of law under which a non-bailable warrant can be issued for recovery of fine. It is true that the penalty imposed is recoverable as if it were fine. But facts borne out from the records showed that PW2 was taken to custody rightly or wrongly and his articles were kept in the Police Station after detaining him. It is also contended by the learned counsel for the appellant that the trap was arranged and detection of offence was made without adhering to the rules. According to him, the observations of the Supreme Court in Vineet Narain and others v. Union of India and another ((1998) 1 SCC 226) quoted below have to be applied to this case. It reads thus:
“The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBIs functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.”
It is, therefore, contended that any deviation from the established procedure should be viewed seriously. On going through the entire evidence, I find no material to find that there is a considerable deviation in the prescribed procedure and that resulted in causing prejudice to the accused. Therefore, I do not find any reason to apply the principles in the above case to this case.
18. Learned Public Prosecutor placing reliance on the decision of the Supreme Court in Krishna Ram v. State of Rajasthan (2009 Cri.L.J. 2436) contended that when the evidence of the witnesses are found to be consistent and credible and when the appellant could not rebut the presumption under Section 20 of the Act by adducing evidence to prove the defence plea, the conviction of the appellant is to be upheld. Supreme Court in that decision analysed evidence and held that the evidence adduced by the prosecution, if remained credible, then the presumption under Section 20 of the Act would cast a burden on the accused. If he fails to rebut the same, he would be held liable criminally. Basing on another decision of the Supreme Court in Ram Krishan and another v. State of Delhi (AIR 1956 SC 476) learned Public Prosecutor contended that the word 'obtains bribe' would include acceptance of bribe on a voluntary offer. It is also contended by the learned Public Prosecutor that merely for the reason of hostility shown by the complainant (PW2) the entire prosecution case cannot be rejected as all the independent witnesses had clearly established the acceptance of bribe by the appellant from PW2. Learned Prosecutor would submit that the principles in State of U.P. v. Zakaullah (AIR 1998 SC 1474) has to be applied to this case. It is to be remembered that each decision has to be considered in the backdrop of the facts in that case.
19. Learned counsel for the appellant placed heavy reliance on the decision in Sat Pal Negi v. State of Haryana (1996 (1) Crimes 408) wherein the Punjab and Haryana High Court, on the facts of the case, found that the conviction is not sustainable when the complainant took absolutely a new case in the witness box and abandoned the allegations made in the FIR. The facts in that case are totally different. On the basis of a decision by the Supreme Court in Mukut Bihari v. State of Rajasthan (2012 (3) KLT SN 82 (Case No.87)) it is argued that mere recovery of tainted money is not sufficient to convict the accused when substantive evidence is not reliable, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as bribe. In this case, there is sufficient evidence to find that PW2 had paid two `100/- decoy notes to the appellant and he voluntarily accepted money as bribe. Therefore, I am of the definite view that the conviction of the appellant under Section 13(1) (d) of the Act is to be upheld.
In the result, the appeal is partly allowed. Conviction of the appellant under Section 7 of the Act is hereby set aside and the appellant is acquitted of that charge. Conviction of the appellant under Section 13(1)(d) read with Section 13(2) of the Act is hereby confirmed. Considering the facts and circumstances of the case, I hereby reduce the sentence on the appellant to rigorous imprisonment for a period of one year. I hereby direct the appellant to pay a fine of `10,000/- (Rupees ten thousand only). In default of payment of fine, appellant shall undergo simple imprisonment for a period of six months. Appellant is entitled to get the benefit of set off under Section 428 Cr.P.C. for the period in custody in connection with the case.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.Appeal No.108 of 2001 JUDGMENT 22nd May, 2014