Single judge allowed the criminal appeal against appellant's conviction under the Prevention of Corruption Act, holding that the prosecution failed to prove the demand for bribe due to the non-examination of the key complaintant.
Conviction and sentence set aside; appellant acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
CRL.A.No. 202 of 2009 (A)
C.C.NO.24/2002 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE
APPELLANT(S)/ACCUSED :
E.P.LUISE, S/O. GEORGE,
IYYAKKAD VEEDU, THRIKKARIPUR AMSOM, KASARAGODE DISTRICT., (ASST. SUB INSPECTOR OF POLICE, KOYILANDY POLICE STATION).
BY ADVS. SRI.A.T.ANILKUMAR
SMT.V.SHYLAJA
RESPONDENT(S)/COMPLAINANT :
STATE OF KERALA, REP. BY DYSP, VIGILANCE AND ANTI CORRUPTION BUREAU, KOZHIKODE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31.
BY SR. PUBLIC PROSECUTOR SRI. C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
B. KEMAL PASHA, J.
Crl. Appeal No.202 of 2009
Dated this the 31st day of August, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Appellant stands convicted under Section 13(2) read with Section13(1)(d) of the Prevention of Corruption Act, 1988 by the Court of the Enquiry Commissioner and Special Judge, Kozhikode in CC No.24/2002, and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹3,000/-, in default to undergo rigorous imprisonment for six more months.
the Koyilandy Police Station as a motive for settling the case
Crl.A.202/2009
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against CW1 in Crime No.557/2000 of the Koyilandy Police Station, which was being investigated by the appellant. In pursuance of the demand, the appellant accepted an amount of ₹500/- as illegal gratification for himself from CW1 on 09.12.2000 at 12.50 p.m. at Koyilandy Police Station as a motive for doing favour to CW1 as aforesaid.
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not re-convey the property as agreed. CW1 continued to take yield from the property. During the month of October, 2000, PW5 preferred a complaint against CW1 and CW24, by alleging theft of coconut from the said property. CW1 and CW24 were summoned to the Police Station and then only CW1 came to know about the transfer of the property by his father-in-law in favour of PW5. Crime No.557/2000 of Koyilandy Police Station was registered against CW1 and CW24. Again and again, CW1 was summoned to the Police Station. According to CW1, the accused had demanded an amount of ₹500/- as illegal gratification for settling the case. When the demand was repeated, CW1 has chosen to furnish Ext.P10 statement.
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accused, only on demand. PW10 along with CW1 and the independent witnesses proceeded to the Koyilandy Police Station and they reached there at 12.50 p.m. on 08.12.2000. On that particular day, the accused was on leave. Again, the trap was laid on the next day. At 1 p.m., CW1 came out of the Police Station and gave the signal. Sodium Carbonate test of the hands of the accused was found to be positive. The aforesaid 5 numbers of Phenolphthalein smeared currency notes were seized from the right pants pocket of the accused. PW12 conducted the investigation and the same was continued by PW9. PW8 completed the investigation and filed the final report.
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of the Prevention of Corruption Act, convicted him thereunder and sentenced him as aforesaid.
learned Public Prosecutor.
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from any criminal liability in the said case. He had insisted CW1 to settle the matter. According to the accused, the amount of ₹500/- was entrusted to him for handing it over as compensation to PW5, and not as illegal gratification.
evidence of any demand. CW24 was also not examined by the prosecution. The accused has chosen to examine CW24 as DW1. According to DW1, he used to accompany CW1 always to the police station on all the occasions, and there were no demands from the part of the accused for illegal gratification. Even though there is a successful trap as proved by the prosecution witnesses in the case, when there is no evidence of demand, the offence alleged against the accused is not legally sustainable. No person had accompanied CW1 into the police station and also to the seat of the accused. None of the prosecution witnesses could see either the demand or acceptance of bribe by the accused. The only evidence which the prosecution could
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rely for proving demand was that of CW1. CW1 has not been examined. Even if the tainted currency notes were recovered from the possession of the accused, it will not invite the offence of misconduct alleged against the appellant, in the absence of any evidence for demand. There is no legal evidence in this case to convict the accused. This Court is satisfied that the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below as against the appellant herein are set aside. The appellant is acquitted.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/31/08
// True Copy //
2 issues framed by the court
Whether the conviction is sustainable when the prosecution fails to examine its sole witness regarding the bribe demand.
Whether证据of illegal gratification is legally proved without prima facie evidence of demand.
1 provisions across 1 enactments
E.P.Luise
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
