Allowed

A.K.Sudhamma v. State of Kerala

Kerala HC19 Aug 2013CRL.A/151/2012

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for corruption, the High Court acquitted the appellant Secretary of Thodiyoor Grama Panchayat. The Court held that the prosecution failed to prove the preliminary demand alleged to have occurred on 17.4.2008, which was essential for the charge. Official records corroborated the appellant's absence on that date, rendering the conviction unsafe.

What did the court decide?

The appellant is acquitted of the charges and set free. The bail bond is cancelled.

A.K.Sudhamma Vs State of Kerala — Corruption | Kerala HC (2013)

¶1

“ C.R .”

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT:

¶4

THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

¶5

MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935

¶6

CRL.A.No. 151 of 2012 ()

¶7

AGAINST THE ORDER/JUDGMENT IN CC 23/2009 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM DATED 25-01-2012

¶8

APPELLANT(S)/ACCUSED::

¶9

A.K.SUDHAMMA

¶10

FORMERLY SECRETARY OF THODIYOOR GRAMA PANCHAYAT (RESDING AST NISHANTH, ELANKATH VELI NAGAR MEDAYIL JUNCTION, THIRUMULLAVAROM P.O., KOLLAM-12).

¶11

BY ADVS.DR.K.P.SATHEESAN

¶12

SRI.M.R.JAYAPRASAD

¶13

SRI.P.MOHANDAS (ERNAKULAM)

¶14

RESPONDENT(S)/COMPLAINANT:

¶15

STATE OF KERALA

¶16

REPRESENTED BY THE PUBLIC PROSECUTOR

¶17

HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

¶18

BY PUBLIC PROSECUTOR SRI.VIJU THOMAS.

¶19

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

¶20

30.7.2013, THE COURT ON 19.8.2013 DELIVERED THE FOLLOWING:

¶21

AL/-

¶22

“C.R.”

¶23

HARUN-UL-RASHID, J.

¶24

--------------------------Crl.Appeal No. 151 of 2012

¶25

Dated this the 19^th day of August 2013. JUDGMENT

¶26

The accused in C.C.No. 23/2009 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the appellant. The appeal is directed against the judgment dated 25.1.2012. The appellant was convicted for the offence punishable under Sections 7 & 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 (for short P.C.Act). The appellant is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month under Section 7 of the P.C Act. The appellant is also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo rigorous imprisonment for three months under Section 13(2) read with Section 13(1) (d) of the P.C Act. Parties are hereinafter referred to as arrayed in the C.C.No.23/2009.

¶27

Crl.Appeal No.151/2012 : 2 :

¶28

The points examined and decided are as to whether the accused, being a public servant, employed as Secretary of the Thodiyoor Grama Panchayat, demanded a sum of Rs. 5,000/from PW1, and accepted Rs.5,000/- from PW1, for herself as gratification other than legal remuneration as a motive or reward for issuing a letter showing the birth details of PW1, in exercise of her official functions at the office of the Thodiyoor Grama Panchayat at about 4.30 p.m on 22.4.2008 as alleged by the prosecution and as to whether the accused, being a public servant, employed as Secretary of Thodiyoor Grama Panchayat, by corrupt or illegal means or by abusing her position as such a public servant, obtained for herself pecuniary advantage to the extent of the aforesaid amount of Rs.5,000/- from PW1.

¶29

The prosecution case in a nutshell is that the accused had demanded bribe of Rs.5,000/- from PW1, as a motive or reward for issuing a letter showing the birth details of PW1 which was necessary for obtaining a Non-availability Certificate for PW1, at the office of the Thodiyoor Grama

¶30

Crl.Appeal No.151/2012

¶31

: 3 :

¶32

Panchayat, on 17.4.2008 and in pursuance of the said demand, the accused accepted Rs. 5,000/- from PW1 for herself as gratification other than legal remuneration as a motive or reward for issuing the said letter in exercise of her official functions, at the office of the Thodiyoor Grama Panchayat at 4.30 p.m on 22.4.2008, and that the accused, by corrupt or illegal means or by otherwise abusing her position as public servant, obtained for herself pecuniary advantage to the extent of the aforesaid amount of Rs.5,000/- from PW1, and thereby she committed the offence punishable under Sections 7 and 13(2) read with Section 13 (1)(d) of the Act.

¶33

The evidence in this case consists of oral testimonies of PWs 1 to 7 and Exts. P1 to P14 on the prosecution side. The defence examined DWs 1 and 2 and marked Exts.D1 to D8(a). MOs 1 to 9 were identified.

¶34

PW1 is the complainant. PW2 was working as Senior Superintendent at the Collectorate, Kollam. PW3 is the Director of Panchayat who had issued Ext.P5 sanction order

¶35

Crl.Appeal No.151/2012

¶36

: 4 :

¶37

to prosecute the accused. PW4 is the father of PW1. PW5 was working as the Junior Superintendent at the office of Thodiyoor Grama Panchayat. PW6 is the Village Officer who prepared Ext.P7 site plan on the basis of Ext.P3 mahazar. PW7 was the Dy.S.P., Vigilance and Anti-Corruption Bureau, Kollam, who registered the case on the basis of Ext.P1 F.I.statement and Ext.P1(a) is the FIR. PW7 is the Investigating Officer who filed Exts. P10 to P12 reports.

¶38

DW1 is the Special Grade Secretary of Thodiyoor Grama Panchayat. DW2, is a Police Constable working at the office of the Vigilance and Anti-Corruption Bureau, Kollam, who was one among the trap party led by PW7.

¶39

Ext.P1 is the statement given by PW1 to the Dy.S.P., VACB, Kollam. Exts. P2 and P3 are the pre-trap mahazar and post trap mahazar respectively prepared by PW7. Ext.P4 is the inventory under which Exts.P8 and P9 registers were taken into custody. Ext.P5 is the prosecution sanction order dated 2.3.2009 of the Director of Panchayat, Thiruvananthapuram. Ext.P6 is the application dated 2.4.2008

¶40

Crl.Appeal No.151/2012

¶41

: 5 :

¶42

addressed to the Secretary, Thodiyoor Grama Panchayat and Ext.P6(a) is the photocopy of the S.S.L.C address page in respect of PW1.

¶43

Ext.D1 is the application dated 22.3.2008 submitted by the mother of PW1. Ext.D2 is the attendance register maintained in the office of the Thodiyoor Grama Panchayat. Ext.D3 is 151 (A) Form dated 24.4.2008. Ext.D4 is the Movement Register of Thodiyoor Grama Panchayat from 24.11.2007 to 22.4.2008. Ext.D5 is the Secretary's Diary of Thodiyoor Grama Panchayat for the period of 17.4.2008. Ext.D5 (a) is the page 51 of Ext.D5. Ext.D6 is the Travelling Allowance bill of the accused for the month of April, 2008. Ext.D7 is the Acquittance Register of the Panchayat for the period of 17.4.2008. Ext.D8 is the Minutes Book of Thodiyoor Grama Panchayat and Ext.D8(a) is the page 200 of Ext.D8.

¶44

MO1 series are the five currency notes of the denomination of Rs.1,000/-. MO2 is the bottle containing the lime water prepared when the characteristics of phenolphthalein powder as well as its use in the trap were

¶45

Crl.Appeal No.151/2012

¶46

: 6 :

¶47

explained. MO3 is the bottle containing the lime water in which the fingers of PW7 and the independent witnesses were dipped at the office of Thodiyoor Grama Panchayat. MO4 is the bottle containing the lime water in which fingers of the accused were dipped and MO5 bottle contains the lime water in which portions of MO1 series of notes were dipped. MO6 is the bag of the accused. MO7 is the packet containing the notes and coin worth Rs. 1025.50 which were found in MO6 bag. MO8 is another packet containing the notes worth Rs.250/- which were found in the waste basket put near the chair of the accused in her office. MO9 is the brown cover containing the notes worth Rs.1,000/- which was kept in the drawer of the table placed in the office of the accused.

¶48

The accused was working as Secretary of Thodiyoor Grama Panchayat in 2008. The house of PW1 is situated at Pattazhi at Pathanapuram. PW1 had been in Australia in connection with his employment. PW1 required his birth certificate for the purpose of getting employment in Newzealand. The case of the complainant is that, his mother

¶49

Crl.Appeal No.151/2012 : 7 :

¶50

is a native of Thodiyoor and that he was born in his mother's house which is situated in Thodiyoor Grama Panchayat. The parents of PW1 submitted an application dated 22.3.08 to the office of Thodiyoor Grama Panchayat for a certificate certifying that the date of birth was not registered in the office of Thodiyoor Grama Panchayat. According to him, if such a certificate is obtained from the Panchayat, he can approach the office of the RDO for a direction to the office of the Panchayat to issue birth certificate. Ext.D1 is the copy of application submitted by the parents of PW1 to the Secretary, Grama Panchayat on 22.3.2008 requesting for issuance of the Birth Certificate of PW1. Ext.P6 is the application submitted later, i.e. on 2.4.2008.

¶51

PW1 deposed that on 17.4.2008 at about 3.30 p.m., he reached the office of the Thodiyoor Grama Panchayat, and requested the accused to issue a Certificate certifying that his birth was not registered in the said Panchayat. He further deposed that when he requested the accused to issue the aforesaid certificate, the accused demanded a sum of

¶52

Crl.Appeal No.151/2012

¶53

: 8 :

¶54

Rs.5,000/- for issuing the said certificate. PW1 also deposed that he was asked by the accused to come to the Panchayat office with the aforesaid amount on 22.4.2008. PW1 was not willing to give bribe. Therefore, on 22.4.2008, he reached the office of Dy.S.P.(VACB) at 1.30 p.m. and gave Ext.P1 statement to the Dy.S.P. who was examined as PW7. In Ext.P1 statement, it is inter alia stated that on 17.4.2008, the accused demanded Rs. 5,000/- from PW1 for issuing the certificate and he was asked by the accused to come to the Panchayat office on 22.4.2008 with Rs.5,000/-. After recording Ext.P1 statement, PW7 sent a requisition to the Collectorate, seeking the assistance of two persons to act as independent witnesses. PW1 handedover five currency notes identified as MO1 series of the denomination of Rs.1000/- to PW7 who put his signature in the water marks of those notes. Subsequently, the Dy.S.P. handed over the notes to the police constable who applied phenolphthalein powder on MO1 series currency notes. PW7 then told PW1 that the notes would be given to the accused, if she made demand for the same. The

¶55

Crl.Appeal No.151/2012

¶56

: 9 :

¶57

police constable dipped his fingers in lime water. Then the fingers and the lime water turned pink. Subsequently, PW7 along with PW1, the witnesses, woman police and party, went to the office of the accused in the vehicle belonging to the Vigilance Department at 3.30 p.m. At 4.20 p.m. they reached about 100 meters away from the office of the accused. PW1 and witnesses get down from the vehicle. PW7 asked PW1 that if the accused accepted the money, PW1 would give a signal by rubbing the back of his head thrice with his hand. PW1 along with one witness went to the office of the accused. PW7, CW3 and the police party positioned themselves 100 meters away from the office of the Panchayat. PW2 stood outside the office, near the window. The accused was present in her office. When PW1 reached the office of the accused, she asked whether PW1 had brought the money demanded by her. At that time PW1 gave MO1 series of notes to the accused. She received MO1 series of notes with her left hand and she put it among the books placed on the table. Immediately, PW1 gave the signal to the witness

¶58

Crl.Appeal No.151/2012

¶59

: 10 :

¶60

standing outside, by rubbing the back of his head with his hand. On getting the signal, PW7 and the witnesses rushed to the office of the accused. PW7 asked whether the amount was accepted. PW1 pointed at the accused saying that the money was accepted and that the money was put among the books. PW7 asked the accused whether she accepted the money. She told PW7 that she accepted the money. At that time, PW7 revealed his identity. These are the facts spoken by PWs 1 and 7.

¶61

PW2, who was working as Senior Superintendent at Collectorate, Kollam, and CW3, who was the Special Tahsildar at the office of LA II, Kollam Railway, as required by PW7, attended his office at 2 p.m on 22.4.2008. PW7 told them that one officer had demanded bribe from PW1, and so PW1 had come to the office of PW7 with the money to give the bribe. PW7 noted down the numbers of the notes, and he put his signature in the water marks of those notes writing the date. PW7 prepared the mahazar and he handed over the notes to the police constable who applied phenolphthalein

¶62

Crl.Appeal No.151/2012

¶63

: 11 :

¶64

powder on the currency notes. The police constable explained the details of the trap and use of phenolphthalein powder in the trap. The police constable took lime water in a glass and after that he dipped his fingers into the lime water and then the lime water and dipped portion of the fingers turned pink. The said lime water was taken in a bottle and the same was sealed, labelled, and thereafter the said bottle was marked as 'A'(MO2). PW7, PW2 and CW3 and others put their signatures on the label affixed to the said bottle. Ext.P2 is the mahazar prepared at the office of PW7. Dy.S.P, along with PWs 1, 2, CW3 and party left his office for Thodiyoor Grama Panchayat Office at about 3.15 p.m. PW1 along with PW2 went to the office of the accused. PW2 stood outside the office room. PW1 alone was sent inside the office room of the accused. These facts were spoken by PW2. According to PW1, he gave MO1 series notes to the accused and she received the MO1 notes with her left hand and thereafter the notes were put among the books on the table. PW2 can see PW1 and the accused from the place where he was standing. PW2 testified

¶65

Crl.Appeal No.151/2012

¶66

: 12 :

¶67

that he saw PW1 talking to the accused. PW2 testified that PW1 was found offering the notes to the accused and the accused received the notes with her left hand and thereafter she put the notes among the books kept on the left side of the table. PW2 told PW7 that he saw PW1 giving money to the accused and the accused accepting the money and putting the same under the registers. PW7 got the accused arrested through the woman police constable. It is further testified that PW7 asked the accused where the notes received by her were put. Then the accused pointed at the registers kept on the table in her office room saying that the notes were put among the registers. On the request of PW7, CW3 took the notes from the place pointed out by the accused. Those notes were examined by PW7, CW3 and PW2 and they were convinced that the notes were the one described in Ext.P2. CW3 sprinkled lime water over the portion of the registers, where MO1 series notes were put. At that time, the lime water and portion of the registers turned pink. Ext.P3 is the mahazar prepared at the Panchayat office. PW2, CW3 and

¶68

Crl.Appeal No.151/2012

¶69

: 13 :

¶70

PW7 put their signatures in Ext.P3.

¶71

Ext.P6 is the application submitted by PW4, father of PW1. Ext.P6 application was submitted on behalf of PW1. PW5 is the Junior Superintendent at the office of the Thodiyoor Grama Panchayat in 2008. He was on leave on 22.4.2008. He reached the office of the Grama Panchayat at about 6.30 p.m on 22.4.2008, on which date the accused was arrested by the Vigilance Police. PW5 was summoned to the office of the Panchayat for taking the charge of the Secretary of the Panchayat from the accused. Accordingly, he took the charge of the Secretary of the Panchayat from the accused.

¶72

The accused was questioned under Section 313 Cr.P.C.. The accused filed written statement putting her contentions as part of her explanations given under the aforesaid Section. It is interalia stated that her father, while working as the Secretary of the same Grama Panchayat, was killed in 1978 in his office room as he had taken strong steps to fight corruption. The accused got employment under Dying-

¶73

Crl.Appeal No.151/2012

¶74

: 14 :

¶75

in-Harness scheme. It is stated that the accused had also taken strong steps to fight corruption. So, her subordinates and the members of the Executive Committee of Thodiyoor Grama Panchayat, including the Vice President Sri. Thankachan, have been nurturing enemity towards the accused. It is stated that as per the S.S.L.C.Certificate of PW1, his birth place is Pattazhi and he had no reason to make an application for the details of his birth in Thodiyoor Grama Panchayat. PW1, who is a relative of Sri.Thankachan, filed the application as abetted by Thanakachan. The incident on 17.4.2008 at about 3.30 p.m. that the accused demanded bribe from PW1 at the office of the Secretary of Thodiyoor Grama Panchayat is denied in the statement. According to her, on 17.4.2008, the accused did not come to the office of the Thodiyoor Grama Panchayat and that on that date she was on other official duty. According to her, on 17.4.2008, She had gone to the office of the Director of Panchayats at Thiruvananthapuram, for administrative matters and therefore, she could not come to the office of the Grama Panchayat. It

¶76

Crl.Appeal No.151/2012

¶77

: 15 :

¶78

is also stated that her absence on 17.4.2008 in the office is evident from the Attendance Register and Secretary's Diary of the Panchayat. It is also stated that the Grama Panchayat had given a sum of Rs. 120/- to the accused as T.A. for her official journey to Thiruvananthapuram. It is further stated that the documents, namely, Attendance Register, Movement Register, Property list etc. produced by the prosecution in the court were not marked on the side of the prosecution. The said documents were marked as Exts.D2, D3 and D4 on the side of the defence. The property list prepared on 22.4.2008 was produced before the court only on 24.4.2008 for the purpose of tampering with the MOs. It is also stated that the MOs were tampered with. It is further alleged that the conduct of PW1 is suspecious, who allegedly met the accused on 17.4.2008, deferred lodging of Ext.P1 with PW7 till 22.4.2008.

¶79

It is further stated that it is impossible for PW1 to meet the accused in the office of the Thodiyoor Grama Panchayat on 17.4.2008 since she had been present on the same day in the office of the Directorate of Panchayat at

¶80

Crl.Appeal No.151/2012

¶81

: 16 :

¶82

Thiruvananthapuram, which is situated 100 kilometers away from Thodiyoor Grama Panchayat. It is further stated that CW10, K.Unni, the Head Constable attached to VACB, Kollam, came to her office on 22.4.2008. He forcibily caught hold of both palms of the accused with his hands and he forced the accused to sit on the chair. It is also contended that the accused did not make any demand for bribe from PW1 on 17.4.2008 and she did not accept bribe from PW1 on 22.4.2008. DW2, a police constable attached to the office of the VACB, Kollam, was one among the trap party led by PW7. To support the said contention, the accused examined DWs 1 and 2 and produced Exts.D1 to D8(a).

¶83

The court below, after evaluating and appreciating the evidence of prosecution, found that the accused has committed the offence punishable under Sections 7 and 13(2) read with 13 (1) (d) of the P.C. Act. The trial court reached the said conclusion on the following reasons:

¶84

PW1 required his birth certificate for the purpose of getting an employment in Newzealand. For this purpose, PW4

¶85

Crl.Appeal No.151/2012

¶86

: 17 :

¶87

submitted an application to the office of the Thodiyoor Grama Panchayat. PW1 came back to his native place from Australia on 8.4.2008. On 17.4.2008 at 3.30. p.m., PW1 reached the office of Thodiyoor Grama Panchayat for getting a certificate stating that his birth was not registered in Thodiyoor Grama Panchayat. The court below believed the evidence of PW1 and PW4. The parents of PW1 had requested in Ext.D1 and Ext.P6 application that the certificate stating that the birth of PW1 was not registered in Thodiyoor Grama Panchayat may be issued for the purpose of registering the birth of PW1. The court below found that it is evident, from the evidence of PWs 1 and 4 and Ext.D1 and Ext.P6, that the birth of PW1 was not registered in the Thodiyoor Grama Panchayat and so a certificate stating that the birth of PW1 was not registered in the Thodiyoor Grama Panchayat was required for registering the birth of PW1 in the Panchayat. Relying on the evidence of PW1, the trial court found that PW1 met the accused on 17.4.2008 at 3.30 p.m., and requested her to issue Certificate. The accused demanded a sum of Rs. 5,000/- from

¶88

Crl.Appeal No.151/2012

¶89

: 18 :

¶90

PW1 on 17.4.2008 for issuing the said certificate and PW1 was asked by the accused to come to the Panchayat with the aforesaid amount on 22.4.2008. PW1 reached the office of PW7 at 1.30 p.m on 22.4.2008 and gave Ext.P1 statement to PW7. The demand made by the accused for Rs.5,000/- from PW1, for issuing a certificate stating that the birth of PW1 was not registered in Thodiyoor Grama Panchayat, is mentioned in Ext.P1.

¶91

It is apparent from the evidence of PWs 1, 2 and 7 that PW1 produced a sum of Rs.5,000/- before PW7, when he gave Ext.P1 statement to PW7 on 22.4.2008 and that Phenolphthalein powder was applied on MO1 series of notes at the office of PW7 .

¶92

In the evidence of PWs 1, 2 and 7 it is stated that MO1 series of currency notes after applying phenolphthalein powder thereon were returned to PW1. PW7 along with PWs 1, 2, CW3 and police party left the office of PW7 for the office of Grama Panchayat at 3.15 p.m on 22.4.2008 and they reached the vicinity of the Panchayat office at about 4.15 p.m

¶93

Crl.Appeal No.151/2012

¶94

: 19 :

¶95

on the aforesaid date. PW1 testified that he went straight to the office room of the accused and that PW2 positioned himself to the place outside the room of the accused, near the window of the office room. PW1 further states that when he entered the office room of the accused, she enquired about the money which was demanded by her on 17.4.2008 and that the accused accepted MO1 series of currency notes given by PW1, with her left hand and she put the money among the registers kept on her table. PW2 deposed that he saw the accused receiving the notes offered by PW1 with her left hand and she put the notes under the registers kept on the table.

¶96

It is apparent from the evidence of PWs 1 and 7 that MO1 series of notes put by the accused among the registers on the table, answered the phenolphthalein test positively. The evidence of PWs 1, 2 and 7 also show that when the left fingers of the accused were dipped in the lime water taken in

¶97

a glass, the fingers and lime water turned pink. No striking improbability or any inherent defect or material contradiction

¶98

Crl.Appeal No.151/2012

¶99

: 20 :

¶100

or discrepancy has been brought out in the evidence of PWs 1, 2 and 7.

¶101

In the facts and circumstances of the case the evidence of PWs 1, 2 and 7 with respect to the incident happened on 22.4.2008 can be safely relied upon. The evidence adduced by them also shows that the accused accepted illegal gratification of Rs.5,000/- from PW1 on 22.4.2008.

¶102

The oral evidence of DWs 1, 2 and Exts.D1 to D8 were discarded. The court below found acceptance with the suggestion put up by the prosecution to DW1 that the journey dated 17.4.2008 was falsely incorporated in Ext.D6, in the attendance register of the accused marked as Ext.D2 and the entries relating to the tour were not correct and genuine.

¶103

The contention of the defence is that the conduct of PW1 that, though he allegedly met the accused on 17.4.2008 he deferred the lodging of Ext.P1 with PW7 till 22.4.2008, is not probable. PW1's evidence was relied as proof of the

¶104

Crl.Appeal No.151/2012

¶105

: 21 :

¶106

contentions of the prosecution that he met the accused on 17.4.2008 and he was asked to be present in the office of the Panchayat with the bribe on 22.4.2008. The court found that as PW1 was asked to give bribe to the accused on 22.4.2008,

¶107

and that it is not possible to say that the act of lodging of Ext.P1 with PW7 on 22.4.2008 is suspecious.

¶108

The prosecution case was built on the basis of the following facts. PW1 met the accused on 17.4.2008 at the office of Thodiyoor Grama Panchayat on the basis of the fact alleged, that on 17.4.2008 at 3.30 p.m PW1 reached the office of the Thodiyoor Grama Panchayat and he asked the accused to issue a non-availability certificate stating that his birth was not registered in the office of the Thodiyoor Grama Panchayat for which the accused demanded bribe of Rs. 5,000/- from PW1. The accused asked PW1 to come to her office on 22.4.2008. As PW1 was not willing to pay the bribe, on 22.4.2008 he went to the office of Dy.S.P. An important question to be decided in this case is as to where there is proof as to whether the accused has demanded Rs.5,000/- on

¶109

Crl.Appeal No.151/2012

¶110

: 22 :

¶111

17.4.2008 as bribe. If the prosecution failed to prove the incident on 17.4.2008, the charge under Section 13(2) read with Section 13(1) (d) of the PC Act against the accused cannot stand.

¶112

DW1 is the Special Grade Secretary of the Thodiyoor Grama Panchayat. The accused was arrested on 22.4.2008. PW5 who was working as Junior Superintendent at the office of the same Panchayat was on leave on 22.4.2008. He was summoned to the office of the Panchayat for taking charge of the Secretary of the Panchayat from the accused. Accordingly, he took charge of the Secretary of the Panchayat from the accused. The accused was suspended from service and the suspension continued till date. From the date of arrest, she has no accessibility to the records maintained by the Panchayat. Ext.D2 is the attendance register maintained in the office of the Thodiyoor Grama Panchayat. Though Ext.D2 was produced by PW7 in court, the same was not marked by the prosecution. Ext.D3 property list, though filed by PW7 before the court, the same was not marked on the

¶113

Crl.Appeal No.151/2012

¶114

: 23 :

¶115

side of the prosecution. Ext.D4 is the movement register maintained in the office of the Panchayat. Ext.D5 is the diary produced by DW1. Ext.D5(a) is the page No.51 of Ext.D5 containing an entry. Ext.D6 is the T.A Bill and Ext.D7 is the Acquittance Register showing the receipt of T.A by the accused. Exts.D8 and D8(a) are the photo copies of the Pages 199 and 200 of the Minutes Book containing the resolution of the Panchayat meeting held on 9.9.2008.

¶116

I have perused Exts. D1 to D8(a) in the context of the contentions raised by the defence. From Ext.D5 Secretary's Diary produced by DW1, the movement of the Secretary can be noticed. The movement of the other employees can be seen from Ext.D4 Movement Register. The entry dated 17.4.2008 in Ext.D5 shows that on 17.4.2008 the accused attended the office of the Director of Panchayat, Thiruvananthapuram, for administrative matters. Ext.D5(a) contains the aforesaid entry. Ext.D2 attendance Register also shows that the accused was absent in the office on 17.4.2008. Ext.D6 is the T.A.Bill in which T.A for the journey

¶117

Crl.Appeal No.151/2012

¶118

: 24 :

¶119

performed by the accused on 17.4.2008 was claimed. A sum of Rs.120/- was claimed for the said journey. The place to which the accused performed her journey is mentioned in the bill. Ext.D7 is the Acquittance Register in respect of the T.A received by the accused. Ext.D7 shows the details of journey performed by the accused during the period from October 2007 to April 2008. The T.A covered by Ext.D6 is included in Ext.D7. Ext.D7 Acquittance Register contains the details of the journey which includes the travel undertaken on 17.4.2008. Ext.D8 and Ext.D8(a) are the copies of relevant pages of the Minutes Book containing the resolution passed by the Panchayat Committee in the meeting dated 9.9.2008, attested by DW1. DW1 has brought the Minutes Book containing the said resolution. The said pages contain the resolution stating about the journey performed by the accused to Thiruvananthapuram on 17.4.2008 and the T.A claimed for the said journey. The resolution shows that the decision was taken by the Panchayat Committee to disburse

¶120

T.A claimed by the accused for the journey to

¶121

Crl.Appeal No.151/2012

¶122

: 25 :

¶123

Thiruvananthapuram. In Ext.D6 T.A bill, the date and hour of the departure and arrival of the accused from Thodiyoor to Thiruvananthapuram are shown. The said time is written in the Minutes Book. The evidence of DW1 and the documents namely Exts.D2, D5, D5(a), D6, D7 , D8 and D8(a) support the defence version that the accused had attended the office of the Director of Panchayat, Thiruvananthapruam in connection with the administrative matters on 17.4.2008 and she had claimed Rs. 120/- as T.A for her journey by Ext.D6 bill and that in the Panchayat Committee meeting held on 9.9.2008, a decision was taken to discharge T.A of Rs. 120/to the accused for the journey to Thiruvananthapuram on 17.4.2008.

¶124

It is evident from the evidence of DW1 and the documents mentioned above that on 17.4.2008, the accused was absent in the office of the Thodiyoor Grama Panchayat and that she was present in the office of the Directorate of Panchayat, Thiruvananthapuram on the said date. There is positive and convincing evidence adduced by the accused to

¶125

Crl.Appeal No.151/2012

¶126

: 26 :

¶127

prove that she was not present in the office on 17.4.2008. As against the positive and convincing evidence adduced by the defence, the prosecution suggestion to DW1 is that after the trap, the journey dated 17.4.2008 was falsely included in Ext.D6, that the attendance of the accused marked in Ext.D2 and the entries relating to the tour were not correct and genuine. Apart from making a suggestion, the prosecution has not adduced any evidence to prove that the journey dated 17.4.2008 was falsely incorporated in Ext.D6 and that the entries in Ext.D2 were not correct and genuine. The accused was arrested and removed from the post on 22.4.2008. From that date PW5 took charge as Secretary of the Thodiyoor Grama Panchayat from the accused. There was no chance or occasion for the accused to falsely incorporate the entries relating to the tour in Ext.D6 and in Exts.D2, D7, D8 or D8 (a). She is under suspension till this date. Recently, on 16.7.2013, the Government passed G.O(MS) No. 1872/13/LSGD to set aside the order of dismissal from the service issued by the Director of Panchayat and issued orders

¶128

Crl.Appeal No.151/2012

¶129

: 27 :

¶130

to continue the suspension. The materials thus shows that in Ext.D5 Secretary's Diary her movements on 17.4.2008 is recorded and the entry further shows that she was at Thiruvananthapuram on the said date. Ext.D6 T.A bill shows the details of her journey to Thiruvananthapruam and Ext.D7 Acquittance Register recorded the receipt of T.A from October 2007 to April 2008. The Minutes Book Ext.D8(a) maintained by the Panchayat contains the details of the meeting held on 9.9.2008. The Minutes recorded her journey to Thiruvananthapuram for which T.A was paid. In Ext.D6 T.A Bill her departure time and arrival time are recorded. The entries in the official records and the official registers maintained in the ordinary course of business are presumed under law to be true and correct. The findings recorded by the court below accepting the suggestion put by the prosecution to DW1, that after the trap, the journey on 17.4.2008 was falsely incorporated in Ext.D6, in Ext.D2 attendance register and the entries relating to the tour were not correct and genuine, is without any basis and not supported by evidence.

¶131

Crl.Appeal No.151/2012

¶132

: 28 :

¶133

Inspite of the overwhelming evidence adduced by the defence regarding her absence on 17.4.2008, the prosecution failed to take any pain to prove her presence on 17.4.2008. The testimony of PW1 was blindly relied on by the court below without any supporting evidence. For effectively prosecuting the matter, the prosecution could have produced some materials to prove that the accused had not attended the office of the Directorate of Panchayat, Thiruvananthapuram, on 17.4.2008. No attempt was made to prove the said fact. The defence evidence is fabricated if the entries are false and not genuine. So long as entires are recorded in the registers and other documents maintained by the Panchayat, in the ordinary course of business, there cannot be any doubt that, it is presumed to be maintained properly and regularly. It is not disputed that the accused was arrested on 22.4.2008 and suspended from service on 25.4.2008 and suspension continued till date. Hence, there was no occasion for the accused to tamper or falsely incorporate certain entries in all the documents. The

¶134

Crl.Appeal No.151/2012

¶135

: 29 :

¶136

prosecution has neither a case that the accused had comitted the act of false incorporation and fabrication of records when she was under suspension nor the prosecution has a case that the Secretary in charge, subsequent to 22.4.2008 had aided the accused to commit the act of fabrication or false incorporation. In these circumstances, this Court is convinced that the accused was not present on 17.4.2008 in the office of the Thodiyoor Grama Panchayat and hence there was no occasion for PW1 to meet the accused on that day so as to demand illegal gratification from him.

¶137

The prosecution case is that the accused demanded bribe of Rs. 5,000/- from PW1, as a motive or reward for issuing a letter showing the birth details of PW1 at the office of the Thodiyoor Grama Panchayat on 17.4.2008 and that in pursuance of the said demand, the accused accepted Rs.5,000/- from PW1 for herself as gratification other than legal remuneration as a motive or reward for issuing the said letter in exercise of her official functions, at the office of the

¶138

Crl.Appeal No.151/2012

¶139

: 30 :

¶140

Thodiyoor Grama Panchayat at 4.30 p.m on 22.4.2008 and that the accused by corrupt or illegal means or by otherwise abusing her position as a public servant, obtained for herself pecuniary advantage from PW1. A reading of Section 13(2) and 13(1) (d) would lead to the conclusion that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further, mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved, beyond all reasonable doubt, that the accused voluntarily accepted the money knowing it to be bribe. To attract Section 13(2) read with Section 13(1) (d) of the Act, prosecution has to prove that the accused had fixed the time and place to receive the money. The alleged incident dated 17.4.2008 is found to be not true. The facts proved in this case are not sufficient to establish that the money was demanded on 17.4.2008.

¶141

In Ramesh K and another Vs. State of Kerala

¶142

(2012 (1) KHC 488) this Court has considered the scope and ambit of Section 7 and 13 (1) (d). This Court held that

¶143

Crl.Appeal No.151/2012

¶144

: 31 :

¶145

mere proof of recovery of tainted currency notes from the possession of a public servant during trap or mere admission by the accused that he received currency notes is not sufficient to convict him for offence under Section 13(1)(d) of the Act. The prosecution must adduce evidence to show that accused has taken effort to get such money by demand, request etc. It is true that recovery of tainted currency notes during trap or admission of accused that he received the same may be one of the circumtances, which the prosecution can rely upon, to prove that he “obtained” bribe money. But, that alone may not be sufficient to hold that accused “obtained” bribe money as required under Section 13 (1) (d) of the Act. It is the bounden duty of the prosecution to prove either by direct or circumstantial evidence, all ingredients of offence under Section 13(1) (d) including the fact that accused “obtained” any valuable thing or pecuniary advantage i.e., he took effort to get valuable thing or pecuniary advantage by demand or request etc.

¶146

It has been held in B.Noha Vs. State of Kerala

¶147

Crl.Appeal No.151/2012

¶148

: 32 :

¶149

and another reported in (2006 (12) SCC 277) that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in a particular case.

¶150

The Apex Court in State of Tamilnadu Vs. A. Parthiban (2006) 11 SCC 473), considering the scope of Section 7 and 13 (1) (d), held that every acceptance of illegal gratification whether preceded by demand or not would be covered by Section 7. Acceptance of illegal gratification in pursuance of a demand by a public servant would also fall under Section 13 (1) (d).

¶151

A total number of 27 witnesses were questioned. Only 7 were examined. CW3 is the Tahsildar who is an independent witness. The evidence adduced by the prosecution shows that PW1, PW7,CW3 and the police party led by PW7 went to the scene of occurrence. PW7 Investigating Officer testified that he along with PWs1 and

¶152

Crl.Appeal No.151/2012

¶153

: 33 :

¶154

2 , CW3 and party left his office to Thodiyoor Grama panchayat at 3.15 p.m. The case of the prosecution is that PW7 prepared a mahazar and a police constable applied phenolphthalein powder on the currency notes. Thereafter, the police constable returned MO1 series of notes to PW1. The police constable explained the details of trap and use of phenolphthalein powder in the trap. He took lime water in a glass, he dipped his fingers in lime water and then the lime water and dipped portion of the fingers turned pink. The said lime water was taken in a bottle and the same was sealed and labelled, and thereafter the said bottle was marked “A”. The said police constable played an important role in applying the phenolphthalein powder on the currency notes, in handing over the said currency notes to PW1 and is he, who explained the details of trap and use of phenolphthalein powder in the trap. He is a person who has took lime water in the glass and dipped his fingers in lime water. He took the lime water in a bottle sealed and labelled and marked “A” . It is not known as to why this police constable was not

¶155

Crl.Appeal No.151/2012

¶156

: 34 :

¶157

examined in this case. Similarly, CW3 who is the Deputy Tahsildar of LA office was called along with PW2 as independent witness. He is one of the person who put his signature in Ext.P2 mahazar prepared at the office of the Dy.S.P. He also accompanied the police party at 3.15 p.m. CW3 also put his signature on the label affixed to the said bottle. He sprinkled the lime water over the portion of the registers where MO1 series of notes were put at the office of the accused. CW3 is the person who checked the vanity bag of the accused which was found kept at the top of the Almirah kept on the left side of the chair of the accused. A sum of Rs. 1025.50 ps found in the bag was taken into custody by PW7. CW3 is the signatory to Ext.P3 mahazar as well. PW7 issued a letter to the District Collector seeking assistance of two independent witnesses. Accordingly, PW2 and CW3 appeared in the office of PW7. PW7 also testified that on the instruction of PW 7, CW3 dipped the corner of MO1 series of notes into lime water taken in a glass and thus the portion of the notes dipped in the lime water and the lime

¶158

Crl.Appeal No.151/2012

¶159

: 35 :

¶160

water turned pink. MO5 is the bottle containing the said solution. CW3, who is an independent witness, had been present in the Panchayat premises on 22.4.2008. CW3 is the person who put his signature on the label affixed in the MO2 bottle and Ext.P2 mahazar prepared at the office of the Dy.S.P. CW3 was present in the office room at the time of search. It was DW3 who had dipped his fingers along with PW2 and PW7 in the lime water. The said bottle was sealed, labelled and identified as MO3. CW3 also put his signature in the label affixed in the said bottle and at the same time, left fingers of the accused were dipped in the lime water taken in another glass. MO4 is the said bottle. According to prosecution, this was done in the presence of PW2 and CW3. CW3 also put his signature on the label affixed on MO4. He is an independent witness. There was no explanation for not examining CW3.

¶161

PW2 was standing outside the room. There was no chance of PW2 over hearing the conversation between PW1 and the accused. He can only watch what was happening in

¶162

Crl.Appeal No.151/2012

¶163

: 36 :

¶164

the room. He was unable to say that there was any demand on the side of the accused. No evidence to suggest, except the evidence of PW1 who is the interested person, as to what transpired between the accused and the complainant, when the accused was approached by the complainant. PW4, who is the father of PW1, approached the accused for the certificate at the first instance. He has no case that the accused has demanded any amount. The accused has produced the S.S.L.C. Book which shows that birth place of PW1 is Pattazhi. PW2 did not deny the version of the act done by DW2 who is another police constable present at the scene of occurrence. The chain of events alleged by the prosecution on 22.4.2008 is not proved to be complete due to the aforesaid reasons.

¶165

The aforesaid facts and circumstance would show that the evidence let in by the prosecution is shaky. It is not proved beyond doubt that the accused has committed the offence charge sheeted. The defence has made out a probable case. Consequently, the court below committed a grave

¶166

Crl.Appeal No.151/2012

¶167

: 37 :

¶168

error in law in passing the order of conviction and sentence.

¶169

In the result, the appeal is allowed. The appellant/accused is acquitted of the charges levelled against her and she is set free. The bail bond stand cancelled.

¶170

Sd/-

¶171

HARUN-UL-RASHID, Judge.

¶172

al/-

¶173

True copy

¶174

P.A. To Judge

A.K.Sudhamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

A.K.Sudhamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S.Gayathri Industrial Combines Vs M/S.Navaneetham Enterprises

M/S.Gayathri Industrial Combines Vs M/S.Navaneetham Enterprises and Others

M/S.Gayathri Industrial Combines Vs M/S.Navaneetham Enterprises & Others

Preman v Vs Midhun

K.Indira Vs Guruvayoorappan

Abdul Salam Vs State of Kerala