Partly allowed

Gangadharan Nair v. State of Kerala

Kerala HC21 Jan 2016CRL.A/983/2007

Case brief

AI extract

What is this about?

In criminal appeal, the High Court upheld the conviction of a District Registrar for demanding illegal gratification to reduce stamp duty. While affirming the conviction under Section 7 of the PC Act, the appellate court modified the sentence due to the accused's advanced age, converting rigorous imprisonment to simple imprisonment.

What did the court decide?

Appeal allowed in part; conviction confirmed. Sentence modified to simple imprisonment: six months for Section 7 and one year for Section 13(2), to run concurrently. Fine maintained.

Gangadharan Nair Vs State of Kerala — Corruption | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.UBAID

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THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937

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CRL.A.No. 983 of 2007

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AGAINST THE JUDGMENT IN C.C.NO.8/2002 OF ENQUIRY COMMISSIONER AND SPECIAL COURT, KOZHIKODE

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APPELLANT(S)/ACCUSED:

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GANGADHARAN NAIR, AGED 61 YEARS, S/O.LATE P.KRISHNAN NAIR, KRISHNAPURI, KOVOOR, ARINELLUR P.O., KUNNATHUR TALUK, KOLLAM DISTRICT.

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BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE) ADV. SMT.K.G.SARALAKUTTY

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RESPONDENT(S)/RESPONDENT :

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STATE-DY.SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, MALAPPURAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.R.REMA

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-11-2015, THE COURT ON 21-01-2016 DELIVERED THE FOLLOWING:

Msd.

P.UBAID, J.

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Crl.A No.983 of 2007 ~~~~~~~~~~~ Dated this the 21^st January, 2016

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J U D G M E N T

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The appellant herein challenges the conviction and sentence against him under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 ( for short “the P.C Act”). He was the District Registrar (General) at Malappuram in November-December, 2000. He faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Kozhikode in C.C 82 of 2002 on a final report submitted by the Vigilance and Anti-Corruption Bureau (VACB), Malappuram in a crime registered on the complaint of one Prabhakaran. The said Prabhakaran and his brother Sundaran had purchased two items of properties in September, 1999 from one Beerankutty. The complainant Prabhakaran purchased 55.9 cents and the brother Sundran purchased 32 ½ cents. On the report of the Sub Registrar regarding under valuation of the sale deeds, the appellant, as District

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Registrar initiated proceedings under the Kerala Stamp (Prevention of Under Valuation of Instruments) Rules, 1968 (for short “the Rules). On 12.10.2000, the appellant passed provisional order under the Rules fixing the amount of consideration, and directed the complainant Prabhakaran and his brother Sundaran to remit the deficit amount of stamp duty and registration fee. On getting the provisional orders, Prabhakaran and Sundaran submitted an application before the Registrar requesting for some lenient consideration. They denied the allegation that the properties were in fact purchased for high amount as suggested by the Sub Registrar. The prosecution case is that when Prabhakaran and Sundaran made request before the appellant as District Registrar for some concession in the matter of stamp duty and registration fee, he demanded an amount of 2000/- as illegal gratification for₹ passing final orders reducing the amount of stamp duty and registration fee. It is alleged that he made such demand on 22.11.2000, and he repeated the same on 29.11.2000 and also on 12.12.2000. The complainant

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Prabhakaran was instructed by the appellant to come on 13.12.2000 with the amount, and he offered that he would pass necessary orders in his favour, if he paid 2000/- as₹ illegal gratification. On 12.12.2000, Prabhakaran made a complaint before the Dy.S.P (VACB), Malappuram, on which the vigilance registered a crime and arranged a trap. The amount of 2000/- brought by the complainant was₹ received as per an entrustment mahazar by the Dy.S.P on 13.12.2000, and after demonstrating the required phenolphthalein test to the complainant, and the trap witnesses, the complainant was instructed to approach the District Registrar at his office and make payment on demand. Accordingly, the complainant Prabhakaran approached the accused at his office at Malappuram and made payment of 2000/- when he repeated the demand.₹ After receiving the amount, the District Registrar issued necessary orders reducing the amount of consideration, and handed over the orders endorsed by him to the complainant, with direction to hand it over to the concerned Section Clerk for issuing the required final

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orders. On getting signal from the complainant, the vigilance party led by the Dy.S.P reached there, seized the phenolphthalein tainted currency from the possession of the accused, and arrested him on the spot. After investigation, the VACB submitted final report before the trial court.

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The appellant/accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Sections 7 and 13 (2) read with Section 13 (1) (d) of the P.C Act. The prosecution examined eight witnesses including the complainant, and also proved Exts. P1 to P32 documents. MO1 to MO10 material objects were also identified during trial, including the phenolphthalein tainted currency of ₹2,000/-. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that the trap in this case was viciously arranged by the police at the instance of a political party leader, who in fact used the complainant to make a false complaint, and that when he just went to the bath room, the tainted money was

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in fact put in the drawer of his table stealthily by the complainant. Thus, he pleaded ignorance about the tainted money that happened to be seized from his table drawer. No evidence was adduced in defence by the accused though opportunity was granted by the trial court. On an appreciation of the evidence, the learned trial Judge found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of 5000/- each under Sections 7 and 13 (2)₹ read with Section 13 (1) (d) of the P.C Act by judgment dated 30.5.2007. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

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When this appeal came up for hearing, the learned counsel for the appellant submitted that the trap in this case was viciously arranged by the police on a false complaint made by the complainant Prabhakaran, and that the tainted money was in fact put in the table drawer of the accused by the complainant stealthily when the accused went to the bath room.

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The learned Public Prosecutor submitted that demand and acceptance of illegal gratification stands well proved in this case by the evidence of the complainant and the trap witness, and that the prosecution case is further proved by the documents proved by the witnesses. Of the eight witnesses examined by the prosecution, PW1 is the complainant Prabhakaran, PW2 is the trap witness, PW3 is the Junior Superintendent of the District Registrar's office who produced some documents and also witnessed the arrest of the accused, PW4 is the Assistant Engineer who prepared the scene plan, PW5 is an attestor to the Ext.P20 seizure mahazar, PW6 is the U.D Clerk of the District Register's office who produced some documents before the police, PW8 is the Dy.S.P who detected the offence and investigated the case, and PW7 is the Vigilance Officer who submitted final report in court. Of the 32 documents proved by the prosecution, the important documents are Exts.P3 and P4 provisional orders passed by the District Registrar, Exts.P5 and P6 requests made by the complainant and his brother, and Exts.P9 and P10 orders

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passed by the District Registrar on the date of trap, reducing the amount of consideration for assessment of stamp duty. The complainant Prabhakaran, and also the trap witness, fully supported the prosecution.

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PW1, the complainant has given evidence fully substantiating the allegations in the Ext.P7 complaint made by him. In Ext.P7 complaint, the case of the complainant is that he purchased 55.9 cents of property from one Beerankutty for ₹ 60,000/- and his brother Sundaran purchased 32 ½ cents of property for a consideration of ₹ 40,000/-. Exts.P1 and P2 are the copies of the sale deeds. Ext.P1 sale deed shows a consideration of 18,000/-₹ whereas the consideration stated in the complaint is ₹ 60,000/-. So also, Ext.P2 document shows a consideration of 12,000/-, whereas the consideration shows in the₹ complaint is 40,000/-. Thus, it is quite clear that the sale₹ documents were undervalued when the complainant and his brother purchased properties from Beerankutty as per Exts.P1 and P2 documents. On an enquiry, the Sub Registrar found that the documents were undervalued.

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Accordingly, the Sub Registrar recommended action under the Rules and submitted a report that the probable consideration paid for the Ext.P1 property is 60,000/- and₹ the probable consideration paid for the Ext.P2 property is ₹ 40,000/-. This is the exact the consideration stated by the complainant in his complaint. Thus a clear case of under valuation stands well proved. Proceedings were rightly initiated under the Stamp Rules by the District Registrar, on the report of the Sub Registrar. Here assumes the importance of the allegations made against the appellant, that he demanded and accepted illegal gratification for passing final orders, reducing the amount of probable consideration, and thereby reducing the amount of deficit stamp duty.

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PW1 is definite in his evidence that when he met the District Registrar on 22.11.2000 and made a request orally and also in writing to pass favourable orders in the matter of deficit stamp duty, the District Registrar demanded ₹ 2000/- as illegal gratification. The complainant was required to meet him on 29.11.2000. On

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that day also, he repeated the demand. When the complainant called the District Registrar over telephone on 12.12.2000 also, the District Registrar repeated the demand and asked the complainant to come on 13.12.2000. As the complainant was not inclined to make payment of bribe, he made Ext.P7 complaint on 12.12.2000 on which a trap was arranged by the vigilance on 13.12.2000. His evidence is that the amount of 2000/-₹ brought by him was received by the Dy.S.P as per a mahzar, and after treating the currency with phenolphthalein, he was directed to approach the District Registrar at his office and make payment of the phenolphthalein tainted currency. Accordingly, he met the District Registrar at his office and made payment of the phenolphthalein tainted currency, when he made demand further. Immediately, the District Registrar made endorsement reducing the amount of consideration for Ext.P1 property to ₹ 27,000/- as against ₹ 60,000/suggested by the Sub Registrar, and reducing the amount of consideration for Ext.P2 property to 20,000/- as against₹

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₹ 40,000/- suggested by the Sub Registrar. Exts.P5 and P6

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were identified as the written requests made by the complainant and his brother when the complainant met the District Registrar on getting Exts.P3 and P4 provisional orders. The complainant proved Ext.P10 order of the District Registrar reducing the consideration for Ext.P1 property and also Ext.P9 order of the District Registrar reducing the consideration for Ext.P2 property. These are the two orders written by the District Registrar in his own hand in green ink, and these two orders were identified and proved by the complainant. As per Ext.P9 order, the consideration for Ext.P2 property was reduced to 20,000/-₹ as against 40,000/- assessed by the Sub Registrar and as₹ per Ext.P10 order, the consideration for the Ext.P1 property was reduced to 27,000/- as against 60,000/- suggested₹ ₹ by the Sub Registrar. The complainant is definite in evidence that these two orders were passed by the District Registrar after receiving the amount of tainted money of ₹ 2000/- from him at his office.

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As per Ext.P3 provisional order, the amount of consideration assessed for Ext.P1 property is 60,000/- and₹ as per Ext.P4 provisional order, the amount of consideration fixed for the Ext.P2 property is 40,000/.₹ The evidence of the complainant well proves that on getting an illegal gratification of 2000/- on 13.12.2000,₹ the District Registrar reduced the proposed consideration for Ext.P1 property to 27,000/-, consequently reducing₹ the amount of deficit stamp duty, and he reduced the proposed sale consideration for Ext.P2 property to ₹ 20,000/- from 40,000/- suggested by the Sub Registrar₹ thereby reducing the amount of deficit stamp duty. Ext.P9 and P10 orders are not disputed by the defence. These are the orders or endorsements made by the District Registrar, consequent to which final orders under the Stamp Rules will be passed assessing the amount of deficit stamp duty. Exts.P5 and P6 written representations are not disputed by the defence. The defence case is that these requests were probably made on 13.12.2000, but the complaint made on 12.12.2000 mentions about such a

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request. On this ground, the learned counsel submitted that the complaint is suspicious.

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PW2, the trap witness has well corroborated the complainant on all material aspects. His evidence is that as instructed by the Dy.S.P.(Vigilance) after demonstrating the required phenolphthalein test on 13.12.000, he accompanied the complainant to the District Registrar's office. The complainant went inside and he remained outside at the varandha. He could over-hear the conversation between them, and he could also witness the things through the half door on the entry door to the District Registrar's chamber. Just when the complainant entered the chamber, he heard some conversation between him and the Registrar, regarding some money, and within no time, the complainant came outside. After sometime he was again called to the chamber, and he was seen handing over the money to the District Registrar. The complainant is definite in evidence that the amount of 2000/- paid by₹ him was accepted by the District Registrar in his right hand, he put the currency inside a diary, and the diary containing

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currency was kept in the table drawer by the accused. The complainant identified MO2 diary during trial. Both the witnesses identified MO1 phenolphthalein tainted currency seized from the possession of the accused.

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There is absolutely no reason why the trap witness examined as PW2 should give false evidence against the accused. The complainant, and also the trap witness well identified the accused as the District Registrar who accepted illegal gratification of 2000/- from the₹ complainant on 13.12.2000 at his office. The complainant stoutly denied the suggestions made by the defence that the tainted currency was stealthily put by the complainant in the table drawer when the District Registrar went to the toilet. But a contradictory suggestion was made to PW2 during cross-examination. That suggestion put to PW2 in cross-examination is that when the complainant tendered illegal gratification, it was rejected by the District Registrar. This suggestion put to PW2 during cross-examination by the defence shows that the money was not in fact stealthily put in the table drawer by the complainant in the

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absence of the accused. The definite suggestion given by PW2 is that the tainted money was tendered to the District Registrar by the complainant, which the District Registrar declined. If that is the suggestion, there is no question of the tainted money being stealthily put in the table drawer in the absence of the accused. This is in fact a very damaging suggestion which goes quite contradictory to the other defence projected by the accused that the tainted money was stealthily put by the complainant in the table drawer in his absence.

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An important ground argued by the defence is that Exts.P5 and P6 requests and also Ext.P7 complaint made on 13.12.2000 are suspicious. The case of the defence is that in Ext.P7 complaint, the complainant has mentioned about a written request for reducing the sale consideration, but Exts.P5 and P6 letters will show that these were received by the District Registrar only on 13.12.2000. Ext.P7 complaint was made on 12.12.2000. The question is as to how a written request made on 13.12.2000 happened to be mentioned in the complaint

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made on 12.12.2000. On this aspect, necessary questions or suggestions were not put to the complainant by the defence. The complainant identified Exts.P5 and P6 letters as the representations made by him and his brother when the complainant met the District Registrar in November, 2000 itself on getting Exts.P3 and P4 provisional orders. Of course, it is true that an endorsement is seen on the top of these two letters, bearing the date 13.12.2000. The defence did not put any suggestion to the complainant that Exts.P5 and P6 are not the requests made by him, and his brother in November, 2000. The evidence of the complainant shows that Exts.P5 and P6 are the written requests made by him, and his brother in November, 2000. These are the letters mentioned by the complainant in the Ext.P7 complaint. Just because the District Registrar made endorsement on these letters only on 13.12.2000, the date on which he accepted illegal gratification, it cannot at all be doubted that Ext.P7 complaint mentioning these two letters is suspicious. The defence did not put suggestion to the complainant that Exts.P5 and P6 letters were made

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or given only on 13.12.2000. On the other hand, the evidence given by the complainant shows that Exts.P5 and P6 are the requests made by him, and his brother in November 2000 after they received the provisional orders. The only thing is that the District Registrar made endorsement on the requests only on 13.12.2000 when he received illegal gratification. I find absolutely nothing to doubt Exts.P5 and P6 requests, or the Ext.P7 complaint mentioning these requests.

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PW8 is the Dy.S.P (Vigilance) who laid trap in this case on the Ext.P7 complaint made by PW1. He has given satisfactory evidence proving the pre-trap and the post-trap measures taken by him, including recovery of the tainted money from the table drawer of the accused, as seen inserted in a diary, and also the positive result of the phenolphthalein test conducted at the time of recovery. The accused was arrested by him on the spot. It is true that PW2, the trap witness had not actually seen where the money was put by the accused. His evidence is only that when he peeped through the half door, he saw the

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complainant tendering the amount. However, his evidence is that when the Dy.S.P asked the accused whether he had received money from the complainant and where he had kept it, the accused told that it was accepted by him, and was inserted in a diary which he kept in the table drawer. Accordingly, the said diary was taken from the table drawer and it was found containing the phenolphthalein tainted currency of 2000/-.I find that the evidence given by PW2,₹ the trap witness is totally acceptable. As regards acceptance, his evidence supports the evidence of the complainant. The fact of recovery of the tainted money at the instance of the accused or from his possession clearly proves acceptance.

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As regards demand, there is only the evidence of the complainant. His evidence satisfies the court that the accused herein had made repeated demands for bribe as a reward for giving some concession in the matter of deficit stamp duty due on Ext.P1 and P2 documents. This evidence given by the complainant stands not discredited in crossexamination. There is no reason why the complainant

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should make a false complaint against the accused, or why he and the trap witness should give false evidence against the accused. The defence projected by the accused that the trap in this case is illegitimate, or that it was arranged at the instance of a political leader by making use of the complainant who is a party supporter, stands not in any manner proved or probabilised. This is not a case where sanction under Section 19 of the P.C Act is required. The evidence given by the Detecting Officer regarding the recovery of tainted money from the possession of the accused is well convincing and he is fully supported by PW2, the trap witness. In so many decisions, the Hon'ble Supreme Court has held that there cannot be a conviction under Section 7 or 13 (2) of the P.C Act, without evidence proving demand and acceptance. In this case, demand stands well proved by the evidence of the complainant, which is not tainted with any doubt or suspicious circumstance. The fact of acceptance of bribe by the accused stands well proved by the evidence of the complainant, and also the evidence of the trap witness.

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Acceptance of the tainted money is further proved by the evidence proving recovery of the tainted money from the possession of the accused.

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It is settled that recovery of tainted money from the possession of the accused will not by itself make him liable for the offence under Section 7 or 13 (2) of the P.C Act. But here, besides the evidence proving recovery there is the definite and consistent evidence given by the complainant and the trap witness proving the essentials to constitute the offences alleged. I find that the prosecution has well succeeded in proving the guilt of the accused, that he had accepted an amount of 2000/- from PW1 as₹ alleged by the prosecution as a reward for giving some concession in the matter of deficit stamp duty on Exts.P1 and P2 documents by which the complainant and his brother purchased properties. The amount proposed by the Sub Registrar is in fact the actual amount of consideration paid by the complainant and his brother. He has stated in the complaint itself that the actual consideration for Ext.P1 sale is 60,000/- and the actual consideration of Ext.P2₹

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sale is 40,000/-. Exts.P9 and P10 documents containing₹

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the endorsements made by the accused in his own handwriting proves that he made such orders granting concession in the matter of deficit stamp duty after receiving the amount of 2000/- from the complainant. ₹

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It is well settled that once acceptance of illegal gratification is proved, the court is bound to apply the presumption under Section 20 (1) of the P.C Act. Here is such a case where such presumption can well be applied, that the amount of 2000/- recovered from the accused as₹ tainted money, was in fact accepted by him as a reward for making the Exts.P9 and P10 endorsements to the benefit of the complainant and his brother. The accused has no explanation whatever why he received the tainted money from the complainant, or in what circumstance he received the said amount, or in what circumstance the amount happened to be recovered from his possession. As already stated, the accused has put forward two contradictory defences. Of course, it is true that the accused can plead ill-consistent defences, but when one defence pleaded by

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the accused totally contradicts and damages the other defence, it cannot be said to be a case of inconsistent defence. One defence projected by the accused during trial is that the complainant stealthily put the tainted money in his table drawer when the accused went to the bath room. Another defence projected through PW2 is that when the complainant tendered the tainted money, the accused declined and warded it off, as a result of which probably traces of phenolphthalein powder came on his hands, giving positive result. Thus, I find that the accused does not have any acceptable defence in this case, and there is absolutely nothing rebutting the presumption against him under Section 20 (1) of the P.C Act.

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On an appreciation of the entire evidence as discussed above, I find that the prosecution case stands well proved in this case. The evidence given by the other witnesses like PW3 and PW4 is not very much important. These witnesses only produced some documents like attendance register and other registers proving the official position of the accused as District Registrar, and also

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proving that he was on duty in the office on the date of trap. The accused does not have any dispute on these aspects. So these registers, or the evidence given those witnesses need not be discussed in detail.

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In view of the findings above, this appeal is liable to be dismissed, confirming the conviction against the appellant under Sections 7 and 13 (2) read with Section 13 (1) (d) of the P.C Act. The sentence imposed by the court below is rigorous imprisonment for two years each, and a fine of 5000/- each under Sections 7 and 13 (2)₹ read with 13 (1) (d) of the P.C Act. When the seriousness of the crime is considered, one would not say that the sentence is harsh or unreasonable. But in the present circumstances where the accused must be now aged 70 years, I feel it appropriate to make some interference in the matter of sentence to modify and reduce the substantive sentence. On a consideration of the amount of bribe involved, the age of the accused at present, and also the trauma of prosecution undergone by the accused for the last 15 years, I feel that the minimum sentence possible

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as on the date of commission of the offence will be the adequate sentence in this case. After the 2014 amendment to the P.C Act, the minimum sentence prescribed under Section 7 of the P.C Act is imprisonment for three years, and the minimum sentence prescribed under Section 13(2) of the P.C Act is imprisonment for four years. But as on the date of commission of the alleged offence in this case, the minimum sentence prescribed under Section 7 of the P.C Act was imprisonment for six months, and the minimum sentence prescribed under Section 13 (2) of the P.C Act was imprisonment for one year. Considering the advanced age of the accused now, I feel it appropriate to modify the sentence, and make it simple imprisonment. Thus, I find that simple imprisonment for six months under Section 7 of the P.C Act and simple imprisonment for one year under Section 13 (2) read with Section 13 (1) (d of the Act will be just, reasonable and adequate sentence.

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In the result, this appeal is allowed in part to the very limited extent of modifying and reducing the substantive sentence. The conviction made by the trial court against

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the appellant in C.C 8 of 2002 will stand confirmed. However, the substantive sentence will stand modified and reduced to simple imprisonment for six months under Section 7 of the P.C Act, and to simple imprisonment for one year under Section 13 (2) read with 13 (1) (d) of the P.C Act. The two sentences will run concurrently. The fine sentence imposed by the trial court with the default sentence thereon is maintained subject to the modification that the default sentence shall be simple in nature.

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P.UBAID JUDGE

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Gangadharan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gangadharan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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