Criminal Appeal No. 934 of 2001 · Kerala High Court · 2007

J.M. JAMES, J.-------------------------------Criminal Appeal No.934 of 2001 -------------------------------Dated this the 30th March, 2007.J U D G M E N TThe accused in C.C.No.8/2000, on the file of theEnquiry Commissioner & Special Judge, Thrissur, is the appellant. Hewas found guilty of the offence punishable under Sections 7 and 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988,in short 'the Act', and, therefore, convicted and sentenced himthereunder to undergo rigorous imprisonment for three years and alsoto pay a fine of Rs.25,000/=, in default, to undergo simpleimprisonment for one year under the first count, and rigorousimprisonment for four years under the latter count. The substantivesentences were directed to run concurrently. The set off was alsoallowed. The same is under challenge through this appeal. 2. The prosecution case in brief is that the appellantwas working as Agricultural Assistant under PW.4, an AgriculturalOfficer. Under the Nineth Five Year Plan of the nation, a People's PlanScheme, had been evolved by the then Government to spraypesticides on the coconut trees, so as to prevent diseases being Crl.A.No.934/20012affected on the trees. Rs.3/= each per tree was collected from thebeneficiaries who own the coconut trees. An amount of Rs.9 paise 50each per tree was allotted to the tree climber to spray the pesticideson the trees. Rs.1.50 was allotted for the purchase of pesticides. Theentire funds of collection from the beneficiaries, purchase of pesticidesand distribution to the coconut climber who spray the pesticides, weremanaged by the appellant and others, under the supervision of PW.4.The appellant was allotted Ward Nos. 1 to 5 of Njarakkal Panchayat,and PW.2 was identified to be the coconut climber to spray thepesticides. Another worker, DW.2, was employed to spray thepesticides in the coconut trees of Ward Nos.6 to 10. The entire workwas to be completed before 31.3.1999. Though the commencement ofthe work was scheduled to begin from the first week of March, 1999, itstarted functioning only on 10.3.1999, when an inauguration wasmade. As the amount allotted to Ward Nos.1 to 10 of the NjarakkalPanchayat would lapse on 31.3.1999, cheques were drawn by PW.4,and issued to Pw.2 and DW.2, so that, they could continue with thework of spraying the pesticides, and complete the same. Crl.A.No.934/200133. The appellant alleged that Ext.P3(d) cheque for anamount of Rs.4,750/= was issued to PW.2 on 31.3.1999 for sprayingthe pesticides on 500 coconut trees, in the wards of the Panchayat onwhich the appellant had control. But PW.2, though received theamount, could complete the work only on 359 coconut trees. Thecheque was issued in anticipation of the completion of the work on theremaining 141 trees. As PW.2 did not do the work, the appellantdemanded the money from PW.2. On the failure of PW.2 to return themoney, as per Ext.P3(d) cheque, or to complete the work, theappellant demanded money back, which resulted in wordly quarrelbetween both. 4. The prosecution has got a case that the appellanthad demanded bribe of Re.1/= per tree for the spraying work, and onhis demand, the appellant received Rs.200/= on 23.3.1999, andRs.500/= on 29.3.1999. On receipt of Ext.P3(d) cheque, PW.2 wasavoiding the appellant as he was demanding the amount ascommission, which is bribe, and, therefore, he did not meet theappellant. However, he approached PW.6, the Deputy Superintendentof Vigilance and Anti Corruption Bureau, Ernakulam, and made Ext.P2complaint, basing on which PW.6, Dy.S.P. had laid a trap. Crl.A.No.934/200145. M.O.1, one Rs.500/= currency note was chemicallytreated and entrusted under Ext.P4 Entrustment Mahazar at 9.30 a.m.,on 7.4.1999, to PW.2. Accompanied by PW.3, PW.2 went to the officeof the appellant and gave M.O.1 note. On receiving pre-determinedsignal from PW.2, PW.6 and others rushed into the office of theappellant, and recovered M.O.1 note under Ext.P5 recovery mahazar,attested by PW.3 and others. Various registers from the office of theappellant were also recovered. On completion of the investigation andobtaining Ext.P1 sanction order from PW.1, a final report was filed byPW.6, in V.C.No.6/99 of Vigilance and Anti Corruption Bureau,Ernakulam. 6. To prove the prosecution case, six witnesses wereexamined and 12 documents were marked, together with 8 materialobjects, which had been identified. The defence examined twowitnesses and marked two documents. The court below, onappreciation of the evidence, found the accused guilty, and, therefore,convicted and sentenced him, as stated above. Crl.A.No.934/200157. The contention of the learned counsel appearing forthe appellant, relying on Ext.D1, as well as the evidence of PW.4, isthat the work was done by PW.2 without any prior payment. Anadvance was made to PW.2, and the said amounts were returned inthe earlier occasions. They were not bribe as stated by theprosecution. Further, the counsel contented that M.O.1 entrusted atthe time of the trap on 7.4.99 was the amount demanded, because ofthe incomplete work on 141 trees by PW.2, who promised tocomplete the work, within two days from the date of receipt of thecheque for Rs.4,750/=. Therefore, the counsel submitted that thecase put forward by the prosecution do not establish that there wasany demand or receipt of bribe, as required under Sections 7 & 13(2)of the Act. Hence, the conviction and sentence of the appellant areunsustainable. 8. The learned Public Prosecutor, on the other hand,submitted that the evidence of PW.2 may be accepted and theconviction and sentence may be sustained. Crl.A.No.934/200169. I have gone through the evidence of PW.2, thecomplainant, PW.4, the Agricultural Officer under whom the appellantwas working, DW.1, the President of the Kera Samrakshana Samithi,and also DW.2, another worker, for the Ward Nos.6 to 10, who wasspraying pesticides. Except the evidence of PW.2, there is no materialbefore me to show that the appellant had received an amount ofRs.200/= on 23.3.1999, and Rs.500/= on 29.3.1999, as bribe. It ishere the importance of Ext.D1 has to be considered. PW.2 admittedone of his signature in Ext.D1. Of course, he denied the secondsignature thereunder. There are two entries of Rs.500/= and Rs.520/=each. Even if one signature is admitted against which PW.2 received anamount of Rs.500/= from the appellant, which reveal that there was atransaction between PW.2 and the appellant and the latter having paidsome amount to PW.2. In such circumstances, I am unable to acceptthe arguments of the prosecution regarding the payment of Rs.200/=and Rs.500/=, as stated above, towards bribe to the appellant byPW.2, in order to allow PW.2 to do the work of spraying of pesticides. 10. The specific case of the appellant is that PW.2failed to do the incomplete work on 141 coconut trees. Therefore,money has been demanded by the appellant from PW.2. Except the Crl.A.No.934/20017statement, there is nothing before me to show the demand of moneyby the appellant from PW.2. Of course, the evidence available clearlyshow that there was an altercation between the appellant and PW.2.While the latter maintained that the altercation was for the non-payment of bribe, as demanded by the appellant, the consistent standof the appellant is that he challenged PW.2 for not doing the work on141 trees. I find considerable support to the stand of the appellantfrom the evidence of DW.1. He deposed that PW.2 did not do thespraying work of 141 trees and PW.2 did the work only after 7.4.1999.Thus, in view of Ext.D1, and the admission of PW.2 that there wasaltercation between himself and the appellant, and also the evidence ofDW.1, I cannot discard the evidence adduced against the prosecutioncase, that the payment of Rs.500/= through PW.2 on 7.4.99, as perthe instruction of PW.6, was the bribe demanded by him. As discussedabove, except the evidence of PW.2, there is no other corroborativecircumstances. Even at the time of payment of M.O.1 currency noteby PW.2 to the appellant, PW.3, the shadow witness was not present.Therefore, what transpired between the appellant and PW.2 is notcorroborated by the prosecution. Hence, in the light of the evidence of Crl.A.No.934/20018DW.1, PW.2 and the admission of PW.2, together with Ext.D1, I findthat the prosecution case is not free from doubt. In suchcircumstances, I give the benefit of such doubt to the appellant. 11. In the light of the above discussions, and theevidence, I hold that the conviction and sentence passed by the trialcourt is not sustainable. The appeal is thus allowed. The conviction andsentence passed on the appellant is set aside. The appellant isacquitted and set at liberty forthwith, cancelling his bail bond. Theamount, if any, remitted by the appellant before the court below, asper the order of this Court, during the admission of this appeal, shallbe returned to the appellant, by the court below, on the latter movingfor the same. J.M. JAMES,JUDGEnj. J.M. JAMES, J.-------------------------------Criminal Appeal No. 934 of 2001J U D G M E N TDated: 30th March, 2007. -------------------------------