Kerala High Court
M.Kesava vs State Of Kerala on 8 April, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
CRL.A NO. 2221 OF 2010
AGAINST THE JUDGMENT DATED 14.10.2010 IN C.C. NO.40 OF 2004 OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE
APPELLANT/ACCUSED:
M.KESAVA
AGED 44, S/O.KARIYA(LATE), MUKHARI KANDAM,
EDNAD VILLAGE, KASARGOD.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.ANIL K.MUHAMED
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SHRI.SUJESH MENON V.B.
SRI.SHYAM ARAVIND
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SPL PP - RAJESH.A, SR PP - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2026,
THE COURT ON 08.04.2026 DELIVERED THE FOLLOWING:
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"C.R"
JUDGMENT
Dated this the 8th day of April, 2026
The sole accused in C.C. No.40/2004 on the files of
the Court of the Enquiry Commissioner and Special Judge,
Kozhikode, has filed this appeal, under Section 374(2) of the
Code of Criminal Procedure, 1973 [hereinafter referred as
‘Cr.P.C.’ for short], challenging the conviction and sentence
imposed by the Special Judge, against him as per the
judgment dated 14.10.2010. The State of Kerala,
represented by the Special Public Prosecutor is arrayed as
the respondent herein.
2. Heard the learned senior counsel for the appellant
and the learned Special Public Prosecutor, in detail. Perused
the verdict under challenge and the records of the Special
Court.
3. Parties in this appeal shall be referred as
‘accused’ and ‘prosecution’, hereafter.
4. The prosecution case is that, the accused while
working as Village Extension Officer, Perla Circle and as such
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being a public servant abused his official position, committed
criminal misconduct, by adopting corrupt and illegal means,
demanded an illegal gratification of Rs.500/- for himself from
Sri.K.Abdulla, S/o.Mammunhi, Kuriadka, Perla P.O., Enmakaje
Village at about 4 P.M on 27-03-2003 and accepted Rs.200/-
at the Village Extention Office, Perla, for issuing a Stage
Certificate to the said Sri.K.Abdulla for producing the same
before the Block Development Officer, Manjeswar for getting
the 1st instalment of money under Indira Awaz Yojana
General Housing Scheme for construction of houses and
after accepting the bribe amount of Rs. 200/- he told to the
said Sri.Abdulla to pay the balance amount after encashing
the cheque. He further demanded an illegal gratification of
Rs.800/- for himself from K.Abdulla at 2 P.M on 29-04-2003 at
the Village Extension Office, Perla, for issuing the 2 nd Stage
Certificate (Rs.300/- being the balance bribe amount of 1 st
Stage Certificate and Rs.500/- being the bribe amount for
issuing the 2nd Stage Certificate) and accused accepted
Rs.500/- from PW1 and told him to pay the balance amount
of Rs.300/ before issuing the 3rd Stage Certificate and he
reiterated the demand for the balance bribe amount of
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Rs.300/- from him at 1.15 PM on 7-5-2003 at the Village
Extension Office, Perla, and in pursuance of the said
demand, the accused accepted for himself an amount of
Rs.300/- then and there, by way of bribe, from the said
Abdulla as a motive or reward for the official act mentioned
above and thereby, accused have committed criminal
misconduct and obtained undue pecuniary advantage for
himself. On this premise, the prosecution alleges commission
of offences punishable under Sections and 13(2) read with
13(1)(d) of the Prevention of Corruption Act, 1988
[hereinafter referred as ‘P.C. Act, 1988‘ for short], by the
accused.
5. After framing charge for the above said offences,
the Special Court recorded evidence and completed trial.
During trial, PWs 1 to 9 were examined, Exts.P1 to P19 and
MOs 1 to 4 were marked on the side of the prosecution. Even
though, the accused was given opportunity to adduce
defence evidence after questioning him under Section
313(1)(b) of the Cr.P.C., he did not opt to adduce any
defence evidence.
6. On appreciation of evidence, the Special Court
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found that the accused was guilty for the offences
punishable under Sections 7 and 13(2) read with 13(1)(d) of
the P.C. Act, 1988. Accordingly, the accused was convicted
for the said offences and sentenced as under:
“I therefore, convict and sentence the accused
to undergo Rigorous Imprisonment for two years
each and to pay a fine of Rs.2,000/- each and in
default to undergo Rigorous Imprisonment for six
months each more, for the offence under Section 7
and 13(2) r/w Section 13(1)(d) of the Prevention of
Corruption Act, 1988. The substantive sentences
shall run concurrently. Set off, if any, is allowed
under Section 428 Cr.P.C. M.O-1 series are to be
returned to PW-1, and M.Os-2 to 4, being valueless
are to be destroyed, after the appeal period is over.”
7. While assailing the verdict of the Special Court,
the learned senior counsel for the accused raised multifold
contentions. At the outset, the submission is that, this is a
case foisted as part of conspiracy hatched between the
Panchayat President and the Secretary of the Perla
Panchayat, who are in enimical terms with the accused.
According to the learned senior counsel for the accused, the
President had compelled the accused to include a large
number of nominees and relatives of the President and her
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two sons in the list of beneficiaries for getting loans and
subsidies. But, the accused did not oblige the President,
since they were not found to be eligible for gettings loans
and subsidies as per the norms and rules. At this juncture, in
order to put the accused in trouble, this case is foisted
against him. In this regard, it is submitted that, in this case
Ext.P1 FIS was recorded at about 10.30 a.m. on 07.05.2003
and pre-trap mahazar was prepared at about 10.40 a.m.
without a preliminary enquiry, since the Investigating Officer
also joined with the Panchayat President and Secretary to
trap the accused for no reason. It is argued further that,
during chief examination of PW1, he had given evidence
that, he had lodged a written complaint that too written by
George (the Panchayat Secretary) examined as PW5 and
entrusted the same to the Dy.S.P., who was examined as
PW7. According to the learned senior counsel for the
accused, as far as the evidence given by PW1, as to lodging
of awritten complaint in the above line, no cross-
examination effected. Therefore, the said evidence would
remain unchallenged. In this context, it is argued that, when
PW7, the Dy.S.P. was examined, his version is that, no such
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complaint was given. Similarly, PW5, who alleged to have
written the complaint stated to be given by PW1 in writing
before the Dy.S.P., was examined, he also denied the same.
This would go to show that PW1 was lying before the Court
as regards to lodging of a complaint. It is also submitted
that, in this case, even though PW2 was examined to prove
the pre as well as post trap proceedings, he was not placed
somewhere near the office of the accused to oversee and
corroborate the demand and acceptance of bribe by the
accused and therefore, no corroborative evidence from the
decoy witness is forthcoming to support the evidence of
PW1.
8. The learned senior counsel for the accused argued
further that, as per the evidence of PW5, the Panchayat
Secretary, he was absent on the day of trap at the office
during forenoon and he had reached the office during
afternoon. According to PW5, the accused also was not in the
office during the relevant time. The evidence of PW5 in this
regard is given emphasis to hold that the entire trap is a
concocted story. According to the learned senior counsel,
here the defense case is more probable than that of the
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prosecution. Therefore, the evidence adduced by the
prosecution is not free from doubt and the accused would be
entitled to the benefit of doubt. Accordingly, the learned
senior counsel for the accused pressed for interference in the
verdict impugned.
9. Repelling the contentions raised by the learned
senior counsel for the accused, the learned Special Public
Prosecutor submitted that, as far as lodging of a complaint
alleged to be written by PW5 before PW7 is concerned, the
same may be a mistake on the part of PW1, since PW5 and
PW7 categorically denied such a complaint. According to the
learned Special Public Prosecutor, the trap was in the year
2003 and the examination of PW1 was during the year 2010
i.e. after seven years. So, while giving evidence about an
occurrence of the year 2003, natural omissions, additions
and variations, by passage of time, that too when the
examination was after seven years is usual and the same
should not be given much emphasis to disbelieve the
evidence of PW1, which is categorical to prove the case of
the prosecution, supported by other evidence. It is also
pointed out that, as per the available evidence, the entire
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allegation as to demand and acceptance of bribe by the
accused have been proved by the prosecution without any
reasonable doubt. Therefore, the conviction and sentence
are liable to be sustained.
10. In view of the rival submissions, the points arise
for consideration are:
1. Whether the Special Court is justified in
finding that the accused committed the offence
punishable under Section 7 of the P.C. Act, 1988?
2. Whether the Special Court is justified in
finding that the accused committed the offence
punishable under Section 13(2) read with 13(1)
(d)of the P.C. Act, 1988?
3. Whether the verdict of the Special Court
would require interference?
4. Order to be passed?
11. Point Nos.1 and 2:- In this case, in order to
prosecute the accused, sanction to prosecute him got
marked as Ext.P19 was issued by the Commissioner, Rural
Development and she was examined as PW9 to prove the
same. She supported issuance of Ext.P19 and no cross-
examination effected to disbelieve her version. Thus, the
prosecution sanction is not at all under challenge. In fact, in
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order to prove the offences punishable under Sections 7 and
13(2) read with 13(1)(d) of the P.C. Act, 1988, it is mandatory
for the prosecution to prove the demand and acceptance of
bribe by the accused, in a convincing manner, without any
reasonable doubts.
12. Now, it is necessary to address the ingredients
required to attract the offences under Section 7 and Section
13(2) r/w Section 13(1)(d) 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
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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; or (ii) by abusing his
position as a public servant, obtains for himself or
for any other person any valuable thing or
pecuniary advantage; or (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.
13. In this connection, it is relevant to refer a 5 Bench
decision of the Apex Court in [AIR 2023 SC 330], Neeraj
Dutta v. State, where the Apex Court considered when the
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demand and acceptance under Section 7 of the P.C.Act to be
said to be proved along with ingredients for the offences
under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988
and in paragraph No.68, it has been held as under :
“68. What emerges from the aforesaid discussion is
summarised as under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by
the prosecution is a sine qua non in order to
establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue
can be proved either by direct evidence which can
be in the nature of oral evidence or documentary
evidence.
(c) Further, the fact in issue, namely, the proof
of demand and acceptance of illegal gratification
can also be proved by circumstantial evidence in
the absence of direct oral and documentary
evidence.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of illegal gratification
by the public servant, the following aspects have to
be borne in mind:
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(i) if there is an offer to pay by the bribe
giver without there being any demand
from the public servant and the latter
simply accepts the offer and receives the
illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In
such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public
servant makes a demand and the bribe
giver accepts the demand and tenders
the demanded gratification which in turn
is received by the public servant, it is a
case of obtainment. In the case of
obtainment, the prior demand for illegal
gratification emanates from the public
servant. This is an offence under Section
13 (1)(d)(i) and (ii) of the Act
iii) In both cases of (i) and (ii) above, the
offer by the bribe giver and the demand
by the public servant respectively have to
be proved by the prosecution as a fact in
issue. In other words, mere acceptance or
receipt of an illegal gratification without
anything more would not make it an
offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in
order to bring home the offence, there
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must be an offer which emanates from
the bribe giver which is accepted by the
public servant which would make it an
offence. Similarly, a prior demand by the
public servant when accepted by the
bribe giver and in turn there is a payment
made which is received by the public
servant, would be an offence of
obtainment under Section 13 (1)(d) and (i)
and (ii) of the Act
(e) The presumption of fact with regard to the
demand and acceptance or obtainment of an illegal
gratification may be made by a court of law by way
of an inference only when the foundational facts
have been proved by relevant oral and documentary
evidence and not in the absence thereof. On the
basis of the material on record, the Court has the
discretion to raise a presumption of fact while
considering whether the fact of demand has been
proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption
stands.
(f) In the event the complainant turns ‘hostile’,
or has died or is unavailable to let in his evidence
during trial, demand of illegal gratification can be
proved by letting in the evidence of any other
witness who can again let in evidence, either orally
or by documentary evidence or the prosecution can
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prove the case by circumstantial evidence. The trial
does not abate nor does it result in an order of
acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is
concerned, on the proof of the facts in issue, Section
20 mandates the court to raise a presumption that
the illegal gratification was for the purpose of a
motive or reward as mentioned in the said Section.
The said presumption has to be raised by the court
as a legal presumption or a presumption in law. Of
course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Section 13(1)
(d) and (ii) of the Act.
(h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in point (e) as
the former is a mandatory presumption while the
latter is discretionary in nature.”
14. Thus, the legal position as regards to the
essentials under Sections 7 and 13(1)(d)(i) and (ii) of the PC
Act, 1988, is extracted above. Regarding the mode of proof
of demand of bribe, if there is an offer to pay bribe by the
bribe giver without there being any demand from the public
servant and the latter simply accepts the offer and receives
the illegal gratification, it is a case of acceptance as per
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Section 7 of the Act. In such a case, there need not be a
prior demand by the public servant. The presumption of fact
with regard to the demand and acceptance or obtainment of
an illegal gratification may be made by a court of law by
way of an inference only when the foundational facts have
been proved by relevant oral and documentary evidence
and not in the absence thereof. On the basis of the material
on record, the Court has the discretion to raise a
presumption of fact while considering whether the fact of
demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
The mode of proof of demand and acceptance is either
orally or by documentary evidence or the prosecution can
prove the case by circumstantial evidence. The trial does
not abate nor does it result in an order of acquittal of the
accused public servant. Insofar as Section 7 of the Act is
concerned, on the proof of the facts in issue, Section 20
mandates the court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward as
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mentioned in the said Section. The said presumption has to
be raised by the court as a legal presumption or a
presumption in law.
15. In this context, it is relevant to refer the decision
of this Court in Sunil Kumar K. v. State of Kerala
reported in [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
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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. 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
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of evidence to prove the demand.”
16. In this matter, the learned Special Judge relied on
the evidence of PW1 supported by other evidence to found
the ingredients to find commission of offences punishable
under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,
1988, by the accused. PW1 deposed that, he was a
beneficiary of housing scheme under Indira Awaz Yojana and
the accused was the Village Extension Officer, Perla Circle,
authorized to deal with the same. His evidence is that, after
completing the first stage of his house, he had approached
the accused for obtaining the first Stage Certificate for
getting the first instalment of the amount from the Block
Development Office. The accused demanded Rs.500/- for
issuance of the Stage Certificate. At that time, even though
PW1 was not willing to pay the amount he has given Rs.200/-
to the accused for obtaining the first Stage Certificate. The
total amount sanctioned for the construction of the house
was Rs.22,000/- from the Block Panchayat Office. This would
be paid in three instalments. The first instalment of
Rs.9,500/- to be paid after obtaining the first Stage
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Certificate. After accepting Rs.200/- the accused reiterated
the demand of the balance amount of Rs.300/- along with
Rs.500/- for the second Stage Certificate on that day itself,
viz. 27-3-2003. Subsequently, after completing the second
stage, he approached the accused and requested for the
second Stage Certificate. At that time, the accused
demanded Rs.800/- inclusive of the balance amount to be
paid to him at the time of issuing the first Stage Certificate.
Subsequently, he demanded Rs.800/- inclusive of the
balance amount to be paid at the time of issuance of the
second Stage Certificate. Since he was not willing to pay the
amount, he straight-away gone to the office of the Dy.S.P.,
Vigilance and Anti-corruption Bureau, Kasaragod, on 7-5-
2003 at 10.30 A.M. He had stated factual events of the case
and that was reduced into writing by the Dy.S.P. and the
same was signed by him, which he identified and marked as
Ext.P-1. Subsequently, two Gazetted Officers reached the
Vigilance Office and they were introduced to him and the
facts of the case was narrated to them also. In their presence
Rs.300/- (100 x 3) was entrusted to the Dy.S.P. by PW1, for
giving as bribe money to the accused. That amount was
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identified as MO-1 series. A demonstration of the
phenolphthalein test was conducted on a one rupee currency
note and after preparing an entrustment Mahazar MO-1
series was received by the Dy.S.P. After smearing
phenolphthalein powder on MO-1 series currency notes and
after noting the number in the entrustment Mahazar, which
was marked as Ext.P-2, given to PW1 for handing over to the
accused only on demand. After completing all the formalities
they were proceeded to the Village Extension Office, Perla, at
about 11.30 Α.Μ. They reached nearby the Perla junction at
1.00 P.M and PW1 and a Police Constable alighted from the
vehicle and as directed by the Dy.S.P. they had gone to the
Village Extension Office. The complainant gone to the Village
Extension Officer’s Office, where the accused was seated. On
seeing PW1, the accused demanded the amount of Rs.300/-.
PW1 handed over Rs.300/- to the accused and the accused
accepted the same with his right hand and put it into his
shirt pocket. Then, PW1 came out of the room and gave
signal to the Police Constable, who was waiting in front of the
Village Extension Office. After sometime the Police Party
came to the office and the accused was arrested and the
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amount was recovered. The application as well as the
Agreement executed by him for obtaining the amount were
marked as Exts.P-3 and P-3(a) respectively.
17. Apart from the evidence of PW1, PW7, the Dy.S.P.,
who laid the trap also was examined to prove the
prosecution allegations. His evidence is that, on 7-5-2003,
PW1 came to his office and narrated the facts of the case. He
had taken down the complaint and after obtaining the
signature of PW1 therein, a case was registered by him. The
complaint so taken down by him was marked as Ext.P-1 and
the FIR registered got marked as Ext.P-1(a) also tendered in
evidence through him. According to him, he made a request
for obtaining the services of two Gazetted Officers as
witnesses, from the General Manager of the District
Industries Office. As per the request, PW-2 and CW-3 were
present in the office. PW1 was introduced to them. PW1 had
produced Rs.300/- (100 x 3) before him as trap money. After
noting the number of the currency notes he had prepared
the entrustment Mahazar, which was marked as Ext.P-2 and
after conducting phenolphthalein test in a one rupee
currency note, they were proceeded to the Village Extension
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Office, Perla Circle. The currency notes entrusted by PW1
was identified as MO-1 series. Then they reached nearby the
Village Extension Office, Perla, at about 1.00 P.M. The
accused as well as one Police Constable and an Inspector,
were alighted from the vehicle and they were gone to the
Village Extension Office. After obtaining the signal they have
proceeded to the Village Extension Office. PW1 had pointed
out the accused from the verandah. Then, they were gone to
the accused and he introduced himself as well as the witness
to him. They have searched themselves in person and
nothing was recovered. Then their hands were also
immersed in the sodium carbonate solution. No colour
change had occurred. Then, he asked the accused about the
amount received from PW1. The accused denied it. When the
hands of the accused were immersed in the sodium
carbonate solution, the solution showed pink colour change.
Then, he questioned about the bribe money he had stated
that he had accepted the amount and kept in the shirt
pocket. Then, he directed PW2 to take the amount from his
shirt pocket. After recovering the amount that was immersed
in the sodium carbonate solution, then the solution showed
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pink colour change. The solution was seized. The accused
was arrested and the Arrest Memo was marked as Ext.P-17.
When sodium carbonate solution was sprinkled in the pocket
portion of the shirt worn by the accused at the time of trap,
it also turned into pink colour. The shirt was sized and
identified as MO-4. The Work Register Ext.P-4 and the
Beneficiary List Ext.P-5 kept on the table of the accused were
also seized. A recovery Mahazar Ext.P-6 was prepared from
there and the witnesses and the accused himself were
signed in it. Subsequently, the accused, documents and the
properties were brought to the Vigilance Office. The
properties were shown in the property list, which was
marked as Ext.P-18. The investigation was conducted as per
his direction by the Inspector. He had questioned the
Additional Development Officer for identifying the signature
of the Sanctioning Authority and recorded his statement.
After completing the investigation he has laid the charge
against the accused before Court.
18. PW2, the official witness, who accompanied the
trap team, examined in this case was the Manager of the
District Industries Office, Kasaragod and he deposed in
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support of the prosecution evidence in tune with the version
of PW1 and PW7 as regards to preparation of pre-trap
mahazar and post trap mahazar and nothing extracted
during cross-examination to disbelieve his version.
19. PW3 examined was the then Block Development
Officer, Manjeswar Block Panchayat, since 13-9-2001. On 15-
5-2003 and according to him, he had produced certain
documents before the Vigilance Dy.S.P., Kasaragod. Those
documents got marked Exts.P-3 and P-3(a). The Stage
Certificate issued by the accused was also produced by him
before the Dy.S.P., which was marked as Ext.P-7. As per
Ext.P-7, the accused had recommended for giving Rs.9,500/-
as first instalment amount to PW1. Another Stage Certificate
which was marked as Ext.P-8 was issued by the accused to
PW1 on 29-4-2003, in which it was recommended for passing
an amount of Rs.7,500/-. The Cheque Issue Register of Indira
Awaz Yojana Project for the year 2002-03 was also produced
by him. The certified copy of the relevant pages were
marked as Ext.P-9. The Housing Register for the year 2002-
03 was also produced by him and the attested copy was
marked as Ext.P-10. A mahazar was prepared by the police
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for seizing those documents, which got marked as Ext.P-11.
As per Indira Awaz Yojana, a beneficiary would get
Rs.22,000/- for constructing a house. That was given from
the Block Office in three instalments. The beneficiaries were
elected by the Grama Sabha. That list had to be given to the
Panchayat Board. After accepting it, subsequently that would
be forwarded to the Block Development Office. Along with
the application, the income certificate obtained from the
Village Office and the Enquiry Report of the Village Extension
Officer and the decision of the Panchayat Board and the
Agreement of the applicant were also to be obtained. In
Ext.P-3(a) Agreement, it was signed by the accused as a
witness. There were two Village Extension Officers in the
Perla Village. The accused was the Village Extension Officer
of Perla Circle. Janu Naik was the Village Extension Officer of
the Kattumukke Circle. The order of appointment of both
these Village Extension Officers produced by the Block
Development Officer got marked as Ext.P-12. According to
him, the Village Extension Officers would have to produce
the work report in daily diary in two times in one month
before the Block Development Office. The daily diary of Perla
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Circle from February, 2002 to 7/9/2003 was produced and
marked as Ext.P-13. The accused was working under him.
After arresting the accused, the Dy.S.P., Vigilance informed
the arrest of the accused to him. The key of the office was
directed to be given to the Secretary of the Panchayat, since
the other Village Extension Officer was on leave. It was
deposed by PW3 that, the Vigilance Police had questioned
and recorded his statement as part of investigation.
20. PW4 examined was the Village Extension Officer,
Puthige. On 15-5-2003, he was in full additional charge of
Perla Circle Village Extension Officer. On 27-5-2003, he has
produced three documents to the Vigilance Police. The
Attendance Register of Perla Circle Village Extension Office
from October, 2002 was produced and marked as Ext.P-14.
The Posting Order of the accused was also produced by him
which already got marked as Ext.P-12. The Mahazar
prepared for seizing the above documents was marked as
Ext.P-15. As per Ext.P-13, the accused has took charge as
Village Extension Officer, Perla Circle, on 19-2-2003.
21. PW9 examined was working as the
Commissioner, Rural Development. He deposed that, on 20-
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3-2004, she had issued the Sanction Order to prosecute
Kesava, the accused in this case and Ext.P-19 sanction
order tendered in evidence through her. The Commissioner,
Rural Development, is the competent authority to remove
the Village Extension Officer from the service. Before
issuing the Sanction Order she had verified all the
connected records and applied her mind.
22. Here, the prosecution sanction is not under
challenge, rather the same has been proved by the
prosecution to accept the same. On perusal of the evidence
discussed, the prime witness to prove the necessary
ingredients to constitute offences under Sections 7 and
13(2) read with 13(1)(d) of the P.C. Act, 1988, is PW1,
supported by the evidence of PW2, the decoy witness and
PW7, the Dy.S.P., who laid the trap.
23. On perusal of the evidence of PW1, in fact,
nothing extracted to disbelieve his version in the matter of
demand and acceptance of bribe by the accused for
issuance of stage certificates for getting money under
Indira Awaz Yojana, as stated by him. But, as pointed out by
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the learned senior counsel for the accused, during
examination PW1 had a version that a written complaint
was lodged by him before the Dy.S.P. on the date of
registration of the FIR and the same was one prepared in
the handwriting of PW5, who was the Panchayat Secretary.
However, PW5 and PW7 categorically denied the said
statement of PW1. This argument has been advanced by
the learned senior counsel for the accused to contend that,
the accused put up a specific case that he was implicated
in this crime, since the Panchayat President and Secretary
were in inimical terms with him as he did not obey their
command to include their kith and kin in the list of
beneficiaries under the scheme. Now, the question poses
for consideration is, because of this version given by PW1
during his examination after seven years of recording his
statement by the Police itself would take away his evidence
as wholly unbelievable and unreliable, in a case where the
bribe money was recovered from the possession of the
accused soon after the trap in consonance with the
consistent evidence of PW1 positing demand and
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acceptance of bribe by the accused/appellant. It is relevant
to note that, after seven years of the occurrence, when
PW1 was examined before the Court, for the first time, he
had given evidence that he had lodged a written complaint
regarding the demand and acceptance of bribe by the
accused and the said version was emphatically denied by
PW5 as well as PW7. Be it so, the version of PW1 is to be
read as a mistake by loss of memory and in fact, if such a
complaint was lodged raising the same allegations in
Ext.P1, the prosecution would not suffer any harm in
placing the same as part of prosecution records. In such a
situation, this challenge by itself is held as insufficient to
disbelieve the evidence of PW1.
24. It is true that, on getting information from PW1,
on the date of trap, the FIR was registered after one hour,
without opting for a preliminary enquiry. The law is well
settled that, preliminary enquiry may be opted by the
Investigating Officer, once he found it is necessary to rule
out possibility of false implication, merely acting on the oral
version of the complainant. But, when the Investigating
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Officer felt that the statement regarding the alleged
demand of bribe by a public servant is genuine to be acted
upon, then preliminary enquiry is not mandatory. Therefore,
non conduct of preliminary enquiry is not a reason to
disbelieve the prosecution case, which in fact supported by
the evidence of PWs 1, 2 and 7 and other witnesses
discussed in detail.
25. Regarding the animosity in between the accused
as well as the Panchayat President and the Secretary (PW5)
is concerned, during examination of PW5, he candidly
denied the same. PW1 also denied any such animosity. It is
interesting to note that, apart from putting such a defense,
even no remote evidence forthcoming to find any animosity
as alleged and thus the defense case found to be without
support of any convincing evidence, rather than a version
or stand taken by the accused.
26. According to the learned senior counsel for the
accused, the decoy witness did not witness the demand
and acceptance of bribe and the same would affect the
prosecution case, for want of proof of the said ingredients
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with the aid of the decoy witness. In fact, proof of the
ingredients to attract the offences punishable under
Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,
1988, are concerned, the law discussed in Neeraj Dutta’s
case (supra) will hold the field and as per which, the
evidence of the complainant alone, if reliable, is sufficient
to act upon the same, even in cases if he would turn hostile
to the prosecution. Therefore, this challenge also must fail.
27. Thus, on re-appreciation of evidence it could be
seen that the prosecution successfully proved the
ingredients to bring home the offences punishable under
Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,
1988, by the accused beyond reasonable doubt and none of
the contentions raised by the learned senior counsel for the
accused to hold otherwise found to be convincing or
acceptable. Therefore, the finding of the learned Special
Judge that the accused committed the above offences is
only to be justified. In consequence thereof, the conviction
entered into by the learned Special Judge is liable to
sustain.
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28. Coming to the sentence, I am of the view that
some leniency in the matter of sentence can be considered,
in the interest of justice.
29. Point Nos.3 and 4:- In the result, this appeal stands
allowed in part. The conviction imposed by the learned
Special Judge is confirmed. In the interest of justice, the
sentence imposed against the accused for the offences
punishable under Sections 7 and 13(2) read with 13(1)(d) of
the P.C. Act, 1988, is modified as under:
i. The accused is sentenced to undergo
simple imprisonment for a period of six months
and to pay a fine of Rs.2,000/- and in default to
undergo simple imprisonment for two weeks,
for the offence under Section 7 of the P.C. Act,
1988.
ii. The accused is sentenced to undergo
simple imprisonment for a period of one year
and to pay a fine of Rs.2,000/- and in default to
undergo simple imprisonment for two weeks,
for the offence under Section 13(2) read with
Section 13(1)(d) of the P.C. Act, 1988.
iii. The substantive sentence shall run
concurrently and the default sentence shall run
separately, after the substantive sentence.
vi. The period of detention undergone by
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34the accused in this case will be set off against
the substantive sentence of imprisonment.
30. The order suspending sentence and granting bail
to the accused stands vacated, with direction to the accused
to appear before the Special Court, forthwith, to undergo the
modified sentence, failing which, the Special Court is
directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment
to the Special Court, forthwith, for information and further
steps.
Sd/-
A. BADHARUDEEN
SK
JUDGE
