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2025 DIGILAW 2445 (KER)

Sunil Kumar K, S/o. Madhava v. State Of Kerala

2025-09-12

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. Being aggrieved by the conviction and sentence imposed against the appellant/accused, who is the sole accused in C.C. No. 153 of 2016 on the files of the Enquiry Commissioner and Special Judge, Thalassery, the present appeal has been filed by the appellant/accused. The State of Kerala, represented by the Vigilance and Anti-Corruption Bureau (VACB), is the respondent. 2. Heard the learned counsel for the appellant/accused as well the learned Special Public Prosecutor in detail. Perused the records of the special court and the decisions placed by the learned counsel for the appellant/accused and the learned special Public Prosecutor . 3. The prosecution case is that the accused, while working as Forester on special duty at the Forest Range Office, Kasaragod, abused his official position and demanded illegal gratification from PW2 for the release of a mini lorry bearing registration No. KL-14C-99, when the said vehicle had been ordered to be released by the Chief Judicial Magistrate, Kasaragod, on 23.01.2012. The further allegation is that the accused negotiated with PW2 and reduced his initial demand for ?10,000 to ?5,000. Thereafter at about 2:30 p.m., on 06.02.2012 the accused alleged to have demanded and accepted the bribe amount of ?5,000 from PW2 at the forest quarters of the Forest Range Office, Kasaragod, in consideration for releasing the said mini lorry. On this premise, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act, 1988') by the appellant/accused. 4. On filing of the final report, the Special Judge took cognizance of the matter and proceeded with trial. During trial, PWs 1 to 22 were examined, and Exhibits P1 to P36, along with MO1 series, MO2, and MO3, were marked on the side of the prosecution. On behalf of the defence, Exhibits D1 and D2 series were marked. After hearing both sides, the Special Court found that the accused had committed offences punishable under Sections 7 and 13(1)(d) read with Section 13 (2) of the PC Act, and accordingly he was convicted and sentenced for the said offences. 5. On behalf of the defence, Exhibits D1 and D2 series were marked. After hearing both sides, the Special Court found that the accused had committed offences punishable under Sections 7 and 13(1)(d) read with Section 13 (2) of the PC Act, and accordingly he was convicted and sentenced for the said offences. 5. While challenging the verdict of the Special Court, the prime contention raised by the learned counsel for the accused is that PW2, the complainant, who was examined to prove the demand and acceptance of illegal gratification amounting to ?5,000 by the accused, turned hostile to the prosecution. Even during his cross-examination carried out at the instance of the Legal Advisor for the prosecution nothing was elicited to establish the alleged demand. Similar is the position as regards to the evidence of PW3 who was examined by the prosecution to prove demand and acceptance of bribe by the accused. Excluding PWs2 and 3 no other witnesses examined to prove demand of bribe by the accused. However, the Special Court relied on the testimonies of PW2, PW13, and PW20, along with Ext. P5— the First Information Statement— to conclude that the accused demanded and accepted ?5,000 from PW2 for the release of the mini lorry, as alleged by the prosecution. The learned counsel for the appellant/accused submitted that the evidence of PWs 2, 13, and 20 in fact, not at all established demand of ?5,000 by the accused, and its consequential acceptance. According to the learned counsel for the accused, the Special Court relied on Ext. P5 (FIS) as a substantive piece of evidence to prove demand, which is not supported by PW2 though the same is legally unsustainable. Accordingly, the learned counsel for the appellant/accused pressed for interference in the impugned judgment. In support of his contention, he placed reliance on recent decisions of the Hon'ble Apex Court in State by Lokayuktha Police, Davangere v. S.B. Nagaraj [2025 KHC OnLine 6519] and Aman Bhatia v. State (GNCT of Delhi) [2025 KHC OnLine 6430], particularly referring to paragraphs 25 and 51 to 55, to contend that the initial elements of demand should be established to apply the presumption under Section 20 of the PC Act, 1988. 6. 6. On the other hand, the learned Special Public Prosecutor submitted that, in the present case, even though PWs 2 and 3 were cited by the prosecution to prove the alleged demand and acceptance of ?5,000 by the accused, they turned hostile to the prosecution. As a result, their testimonies do not provide any direct evidence to establish the demand. However the learned Special Public Prosecutor placed decision of the Apex Court in 2001 KHC 1382 M. Narasinga Rao v. State of Andhra Pradesh with reference to paragraph 6, 9 and 20 to contend that in the said case the Apex Court relied on the evidence of PW7 who recorded Ext.P2 complaint as that of PW1 (the complainant therein) examined therein who turned hostile to the prosecution and taking note of said evidence coupled with the fact that the accused was caught redhandedly with the currency notes alleged to be demanded and accepted by him, the Apex Court found in paragraph No.21 that from those proved facts the court could legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition and accordingly the conviction and sentence imposed by the special court as well as the High Court were confirmed by the Apex Court. It is pointed out by the learned Special Public Prosecutor that in Neeraj Dutta v. State (Govt. of NCT of Delhi , 2022 (7) KHC 647 the Apex Court considered the question as to whether any conflict in two decisions, viz (1)P. Sathyanarayana Murthy v. District Inspector of Police and Another Andhra Pradesh 2015 (10) SCC 152 and (2) Jayaraj B v. State of Andhra Pradesh 2014 (13) SCC 55 (three Benches) with that of M. Narasinga Rao v. State of Andhra Pradesh 2001 (1) SCC 691 in as much as to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act 1988, in the absence of the complaint letting in direct evidence owing to the non availability of the complaint or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. 7. Adverting to the rival submissions, the following questions arise for consideration:- 1. 7. Adverting to the rival submissions, the following questions arise for consideration:- 1. Whether the special court is justified in holding that the accused committed offence punishable under Section 7 of the PC act? 2. Whether the special court went wrong in holding that the accused committed offence punishable under Section 13 (1)(d) r/w 13(2) of the PC Act? 3. What are the essentials to be proved to sustain conviction and sentence under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act 1988? 4. Whether the verdict under challenge would require interference? 5. The order to be passed?. Point Nos. 1 to 5: 8. In the present case, PW19 registered the crime, PW21 conducted the investigation, and PW22 filed the charge sheet before the court. The prosecution examined PW2, the complainant, and PW3, a friend of PW2, who accompanied PW2 to prove that the accused demanded and accepted ?5,000 for the release of the mini lorry, as alleged. However, on reading of the evidence of PW2, it is clear that he turned hostile to the prosecution and his evidence in no way supported the prosecution case as regards to demand and acceptance of bribe by the accused. Even though he was subsequently cross-examined by the Legal Advisor, nothing was elicited to support the allegation of demand by the accused. The same is the position as regards PW3, who did not support the prosecution case in as much as demand and acceptance of Rs.5,000/- by the accused from PW2. Thus the evidence PW3 also does not contain anything to establish the alleged demand. According to the learned counsel for the appellant/accused, even though the Special Court found that the combined evidence of PWs 2, 13, and 20 along with Ext.P15(FIS) established the demand of bribe money marked as MO1 series, by the accused, the said evidence is quite insufficient to prove the demand beyond reasonable doubt. Therefore, the essential ingredients to establish the commission of the offences are not made out. In view of this, the appellant/accused is entitled to the benefit of doubt and therefore the verdict impugned is liable to be reversed. 9. Coming to the evidence of PW2, he narrated how his lorry got in the custody of Kasaragod Forest Range Office. When the timber of PW3 was brought in his lorry, Badiyadka Police seized the vehicle and timber and registered a case. 9. Coming to the evidence of PW2, he narrated how his lorry got in the custody of Kasaragod Forest Range Office. When the timber of PW3 was brought in his lorry, Badiyadka Police seized the vehicle and timber and registered a case. Thereafter the lorry was taken to the Forest Office, Kasaragod. He along with PW3 filed a petition before Chief Judicial Magistrate Court, Kasaragod and release of the vehicle was ordered accordingly. In the petition filed by him, the Court directed to produce the documents of his vehicle and after a few days he received a phone call from the forest office informing to make available the documents pertaining to the vehicle. He went along with PW3 to release the mini lorry and given his mobile phone number to the accused and informed the accused about the petition filed by him to release the vehicle. The witness identified the accused at the dock. He had produced Ext.P3 order of the Chief Judicial Magistrate Kasaragode on the assertion that the order was produced before the Forest Office, Kasaragod on the same day. In fact, PW2 did not support the prosecution case as regards to demand and acceptance of Rs.5,000/- by the accused. PW3 also in no way supported the prosecution case. 10. Coming to the evidence of PW19, the Deputy Superintendent of Police (DySP) who conducted the trap, he deposed that PW2 arrived at his office and stated that his mini lorry bearing registration No. KL-14C-99, which was in the custody of the forest authorities, was ordered to be released by the Chief Judicial Magistrate Court, Kasaragod, on 23.12.2013. PW19 further stated that when he handed over the release order to the Forest Range Officer/the accused herein he demanded bribe to the tune of ?10,000. Regarding this aspect, PW19 conducted a pre-verification and advised PW2 to again attempt for the release of the vehicle. He instructed that if the release was not successful, PW2 should approach him. Subsequently, PW2 and PW3 informed PW19 that the vehicle had not been released and that the accused demanded bribe of ?5,000, as he was unwilling to release the vehicle without getting this amount. Accordingly, the statement of PW2 was recorded in this regard, which is marked as Ext. P5. Pursuant to Ext. P5, Crime No. VC-02/2012 was registered under Section 7 of the PC Act, 1988 and the FIR got marked as Ext. Accordingly, the statement of PW2 was recorded in this regard, which is marked as Ext. P5. Pursuant to Ext. P5, Crime No. VC-02/2012 was registered under Section 7 of the PC Act, 1988 and the FIR got marked as Ext. P5(a). PW19 further deposed about the arrival of two Gazetted Officers, PW6 and CW3, who came at his request. He also testified regarding the production of ?5,000 (five notes of ?1,000 each), marked as MO1 series, by PW2, and the preparation of Ext. P8 mahazar documenting the same. PW19 also spoke about the phenolphthalein test and the subsequent pink colour change to the sodium carbonate solution. He deposed that he had entrusted MO1 series to the accused with instruction to deliver the same to the accused upon demand. PW19 further testified about their arrival near the office at 2:30 p.m. and the signal given by PW2, through PW3, indicating the accused’s acceptance of the MO1 series. He deposed about the phenolphthalein test conducted by the officials, which showed no colour change. According to PW19, when he inquired about the money received, the accused stated that it was inside a black bag on the table in the quarters (the place of occurrence). Acting on PW19’s direction, PW6 opened the door, took the bag, and recovered the MO1 series notes. He also deposed about dipping the accused’s hands in sodium carbonate solution, which resulted in pink color change to the solution. Additionally, he deposed about the recovery of Ext. P10, a file related to the release of the vehicle, produced by PW8. 11. The question to be considered herein is whether, in the absence of direct evidence from PW2 and PW3 to prove the demand, the Special Court was justified in holding that the prosecution succeeded in establishing the demand for a bribe by the accused. It is true that in the absence of direct evidence, the court may rely on circumstantial evidence to infer demand. However, the crucial question in this case is whether the demand—one of the most essential ingredients to prove offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act—has been established through circumstantial evidence. 12. It is true that in the absence of direct evidence, the court may rely on circumstantial evidence to infer demand. However, the crucial question in this case is whether the demand—one of the most essential ingredients to prove offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act—has been established through circumstantial evidence. 12. Indubitably in Neeraj Dutta’s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13 (2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police’s case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand. 13. Coming back to the facts of the present case, there is no direct evidence to establish that the accused demanded Rs. 5,000/- from PW2, since PWs 2 and 3, who were examined by the prosecution to prove the demand of bribe by the accused turned hostile to the prosecution. On evaluating the circumstances otherwise brought in evidence even though the bribe money was recovered from a black bag on the table of the accused and the hands of the accused when dipped in sodium carbonate solution the same showed pink colour change the same by itself are insufficient to hold that the accused demanded bribe money (MO1 series) from PW2 as alleged by the prosecution. Therefore the prosecution miserably failed to prove the essential ingredients to prove the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988. Therefore contra finding entered into by the Special Court by giving emphasis to the available evidence including Ext.P5 FIS is erroneous. It is shocking to note that the special judge given reliance to Ext.P5 FIS to find demand though the maker of the same not supported the same and he disowned the same. 14. In the result this appeal succeeds and the verdict of the special court is set aside. Consequently the conviction and sentence imposed against the appellant/accused stand set aside and he is set at liberty forthwith. His bail bond stands cancelled. The Registry is directed to forward a copy of this judgment to the special court forthwith for information and compliance.