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2025 DIGILAW 2756 (KER)

A. Salahudeen v. State of Kerala

2025-11-06

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. 1. These Criminal Appeals have been filed by accused Nos.1 and 2 in C.C.No.3 of 2014 on the files of the Enquiry Commissioner & Special Judge, Thiruvananthapuram. The appellants impugn judgment dated 30.06.2018 in the above case. Respondent is State of Kerala represented by Vigilance Anti Corruption Bureau (`VACB' for short). 2. Heard the learned counsel appearing for accused Nos.1 and 2. Also heard the learned Public Prosecutor appearing for the VACB. Gone through the verdict under challenge and the decisions placed by the learned counsel appearing for the accused. 3. The prosecution case herein is that the 1 st and 2 nd accused, who were the Village Officer and the Part-time Sweeper, Punnakkal Village respectively hatched criminal conspiracy to obtain illegal gratification from Sri Kuttappan, the complainant, for effecting mutation of his property and in consequence thereof, on 20.09.2011 accused Nos.1 and 2 accepted bribe. Thus the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act (`PC Act, 1988' for short) as well as Section 120B of the Indian Penal Code (`IPC' for short), by accused Nos.1 and 2. 4. The Special Court proceeded with trial acting on the final report filed. During trial , PW1 to PW6 were examined and Exts.P1 to P40 were marked. Apart from that, MO1 to MO12 also were marked on the side of the prosecution. No defense evidence was adduced. On appreciation of the evidence tendered, the Special Court found that accused Nos.1 and 2 committed offences under Sections 7 and 13(1)(d) read with 13(2) of the PC Act, 1988 and 120B and accordingly they were sentenced as under: “(a) Both accused are found guilty, convicted and sentenced to undergo rigorous imprisonment for a period of two years (2 years) and fine to the tune of Rs.10,000/- in default to undergo rigorous imprisonment for 90 days under each count U/s.7, 13(1)(d) r/w 13(2) of P.C Act and U/s.120B of IPC. (b) The substantive sentence shall run concurrently.” 5. The learned Senior Counsel appearing for the 1 st accused vehemently submitted that the entire trap proceedings are vitiated or in the midst of doubt. He has pointed out that even otherwise, Kuttappan, the complainant, was no more and therefore his evidence was not recorded to prove the demand and acceptance of bribe. The learned Senior Counsel appearing for the 1 st accused vehemently submitted that the entire trap proceedings are vitiated or in the midst of doubt. He has pointed out that even otherwise, Kuttappan, the complainant, was no more and therefore his evidence was not recorded to prove the demand and acceptance of bribe. According to the learned Senior Counsel appearing for the 1 st accused, as far as the ingredients to prove the demand, no evidence is available and the evidence of PW1, the son of Kuttappan, supporting the prosecution evidence, in no way would suggest that the accused had demanded the amount and accepted the same. He also pointed out that even though PW1 had given evidence that he had forwarded the recording of demand made by the 1 st accused during September and forwarded the same to the Vigilance Officer through blue-tooth, no such evidence is forthcoming and the Investigating Officer PW6 deposed that since PW1 deleted the original of the same from his phone, the evidence with regard to the same could not be collected. The sum and substance of the argument at the instance of the learned Senior Counsel appearing for the 1 st accused is that there is no convincing evidence forthcoming to see the demand made by the accused. Therefore, for want of evidence to prove one of the most essential ingredients, that is, demand, the Special Court went wrong in finding that the 1 st accused committed offences alleged against him. 6. The learned counsel for the 2 nd accused also shared the argument of the learned counsel for the 1 st accused and submitted that in the instant case there is no evidence to show that the 2 nd accused demanded money either from Kuttappan or from anybody. It is pointed out that the 2 nd accused is a Part-time Sweeper, who was assisting the 1 st accused as an obedient subordinate to him, and his complicity in this matter is otherwise not fully established. The learned counsel for the 2 nd accused placed decision of the Apex Court reported in Neeraj Dutta v. State (Government of NCT of Delhi) , (2023) 4 SCC 731 , to highlight the ingredients necessary to prove the offences under Section 7 as well as 13(1)(d) of the PC Act, 1988. The learned counsel for the 2 nd accused placed decision of the Apex Court reported in Neeraj Dutta v. State (Government of NCT of Delhi) , (2023) 4 SCC 731 , to highlight the ingredients necessary to prove the offences under Section 7 as well as 13(1)(d) of the PC Act, 1988. Apart from that, another decision of the Apex Court reported in Madan Lal v. State of Rajasthan , 2025 INSC 340 in this regard. 7. Whereas the learned Public Prosecutor would submit that as per the ratio in Neeraj Dutta (supra), the Apex Court found that there is no apparent conflict in between the three- Judge Bench decision of the Supreme Court reported in B. Jayaraj v. State of A.P. (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543; P. Satyanarayana Murthy v. State of A.P. (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11 and M. Narsinga Rao v. State of A.P. 2001 (1) SCC 691 : 2001 SCC (Cri) 258 with regard to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 7 or 13(1)(d)(i) and (ii) of the PC Act, 1988, and in this case the Special Judge relied on M. Narsinga Rao v. State of A.P. (supra) to find that, in the absence of the complainant to give evidence in support of the prosecution regarding demand and acceptance, the attending circumstances, including the evidence of PW1, the son of Kuttappan, who accompanied him along with the trap team, sufficiently proved the demand of bribe by accused Nos.1 and 2. Therefore, the conviction and sentence are liable to be confirmed. 8. Having considered the rival contentions the points arise for consideration are: (i) Whether the Special Court went wrong in finding that the appellants/accused committed offence punishable under Section 13 (1)(d) r/w 13(2) of the PC Act, 1988? (ii) Whether the Special Court went wrong in finding that the appellants/accused committed offence under Section 120B of IPC? (iii) Is it necessary to interfere with the verdict under challenge? (iv) The order to be passed? 9. In the instant case no dispute is raised with regard to sanction Ext.P9 proved through PW3, who identified the signature of Sri Mohanan, who was no more at the time of evidence. 10. (iii) Is it necessary to interfere with the verdict under challenge? (iv) The order to be passed? 9. In the instant case no dispute is raised with regard to sanction Ext.P9 proved through PW3, who identified the signature of Sri Mohanan, who was no more at the time of evidence. 10. It is relevant to note that the prosecution mainly relied on the evidence of PW1 supported by the evidence of PW2, the decoy as well as PW6, the trap laying officer, to establish that accused 1 and 2, as part of conspiracy hatched between them demanded and accepted a sum of Rs.1,500/- from Kuttappan, who is now no more. In this regard, evidence of PW1 assumes significance. 11. According to PW1, his father had filed a petition before the Village Officer, Punnala Village, for effecting mutation of the landed property originally owned by his paternal grandmother. PW1 identified Ext.P1 as the petition filed by his father. He deposed about the production of the encumbrance certificate and a copy of the assignment deed before the Village Office. The further evidence of PW1 is that the Village Officer subsequently informed his father that there were certain technical issues in effecting the mutation, and accordingly, the Village Officer received Rs.700/- from his father and his aunt. Thereafter, both accused visited the property for taking measurements, and at that point of time, the 1st accused raised a demand of Rs.2,000/- as illegal gratification. The mother of PW1 paid Rs.1,000/- and requested the 1st accused to effect mutation at the earliest. But the matter was prolonged for a period of more than six or seven months. When the father of PW1 contacted the 1 st accused over phone with regard to the inordinate delay caused he again raised a further demand for Rs.1,500/- and asked his father to come to the Village Office with the above amount on 16.09.2011. As the matter being prolonged even after paying the requested amount, PW1 became distressed and he took his father, the complainant, to the Vigilance Office, Kollam on 16.09.2011 for filing a petition. 12. The evidence of PW1 is corroborated by PW2 as well as PW6, the trap laying officer, in the matter of pre and post trap proceedings. 13. As the matter being prolonged even after paying the requested amount, PW1 became distressed and he took his father, the complainant, to the Vigilance Office, Kollam on 16.09.2011 for filing a petition. 12. The evidence of PW1 is corroborated by PW2 as well as PW6, the trap laying officer, in the matter of pre and post trap proceedings. 13. On evaluating the evidence of PW1, PW2, and PW6, it could be gathered that on the date of the trap, i.e., 20.09.2011, Kuttappan met the Village Officer at the Village Office and later Kuttappan talked to the Village Officer. Then accused Nos.1 and 2 reached Kumbanattupadi in an autorickshaw. Kuttappan and PW1 followed accused Nos.1 and 2. After all of them reached Kumbanattupadi, Kuttappan spoke with the 1 st accused, and thereafter handed over the MO1 series currency notes, which were subsequently recovered as per Ext.P6. Initially Kuttappan entrusted MO1 series bribe money to PW6 and it was recovered by PW6 after preparing entrustment mahazar. Then PW6 had entrusted back money to the complainant. On the date of trap, the complainant handed over the same to the 2 nd accused and the 2 nd accused entrusted the same to the 1 st accused. Later, the Deputy Superintendent of Police had intervened and conducted the phenolphthalein test on the hands of the officials as well as the accused persons. The further evidence of PW6 is that, as informed by the 1 st accused, the MO1 currency notes were found beneath the back seat of the autorickshaw and were identified as the same notes that had been entrusted to the complainant by the Dy.S.P. 14. 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. 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 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; (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine. 15. In this context, it is relevant to refer the decision of this Court reported in Sunil Kumar K. v. State of Kerala , 2025 KHC OnLine 983 in Crl. Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under: “12. 15. In this context, it is relevant to refer the decision of this Court reported in Sunil Kumar K. v. State of Kerala , 2025 KHC OnLine 983 in Crl. Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under: “12. Indubitably in Neeraj Dutta’ s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M.Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the 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.” 16. On scrutiny of the evidence of PW1, it is emphatically clear that he had deposed about the pre trap as well as post trap proceedings in tune with the version of PW2 as well as PW6. Though PW1 deposed that Rs.700/- had been paid to the Village Officer by his father and aunt, it was revealed during cross-examination that this version was only hearsay in so far as PW1 is concerned. According to PW1, in order to give bribe, he along with his father and his friend followed accused 1 and 2 on two different two-wheelers and stopped near a bunk shop at Kumbanattupadi. Then the accused along with another person had reached there in an autorickshaw, which was stopped there and 3 persons from the autorickshaw got down there. Soon the 2 nd accused reached near his father and talked something to him. Soon, the 1 st accused, along with another person, also arrived, and the 1 st accused entered the autorickshaw. The 2 nd accused then moved towards the 1 st accused along with his father. His father spoke to the 1 st and 2 nd accused and then entered the autorickshaw. Thereafter, his father again spoke to both accused, took the money from his pocket, and handed over the bribe money to the 2 nd accused and was accepted by the 2 nd accused. PW1 identified the 2 nd accused at the dock. PW1’s further version is that the 2 nd accused handed over the money to the 1 st accused. Thereafter, his father again spoke to both accused, took the money from his pocket, and handed over the bribe money to the 2 nd accused and was accepted by the 2 nd accused. PW1 identified the 2 nd accused at the dock. PW1’s further version is that the 2 nd accused handed over the money to the 1 st accused. As regards to demand of the bribe money by the 1 st and 2 nd accused, PW1’s evidence is not clear, and his evidence is that there was some talk between Kuttappan and accused Nos.1 and 2. But whether accused Nos.1 and 2 demanded any bribe from Kuttappan, the evidence of PW1 is not specific as he did not divulge what was the talk in between Kuttappan and accused Nos.1 and 2. 17. Thus insofar as demand, the evidence of PW1 is not convincing. Apart from the evidence of PW1, no other witnesses deposed in support of the prosecution to show that there was demand by the 1 st and 2 nd accused. Insofar as the demand through telephone from Kuttappan by the 1 st accused is concerned, though it was deposed by PW1 that conversation forwarded by him to the police through blue-tooth, the same not forthcoming in evidence. 18. Thus on an overall evaluation of the evidence available, the inference is that the prosecution failed to establish the demand of bribe by accused Nos.1 and 2 in this case with the aid of convincing evidence though the evidence available would show recovery of MO1 series from the backside of the autorickshaw as shown by the 1 st accused. In such a case, the accused persons are entitled to get the benefit of doubt. 19. Holding so, I am inclined to set aside the verdict of Special Court giving the benefit of doubt to the accused. In the result, these appeals are allowed. Conviction and sentence imposed against accused 1 and 2 are set aside and they are set at liberty. Their bail bonds have been cancelled. Registry is directed to forward a copy of this judgment to the Enquiry Commissioner and Special Judge, Thiruvananthapuram, for information and compliance.