A. Subair vs State Of Kerala

A. Subair ..Appellant

Versus

State of Kerala ..Respondent

JUDGEMENT

R.M. LODHA, J.

The appellant, A. Subair, in this appeal by special

leave, suffered conviction under Sections 7 and 13(1)(d) read

with Section 13(2) of Prevention of Corruption Act, 1988 (`the Act')

by the court of Special Judge, Thiruvanathapuram. The Special

Judge sentenced him to undergo rigorous imprisonment for a

period of six months and to pay fine of Rs. 100/- with default

stipulation under Section 7 and rigorous imprisonment for a period

of one year and to pay fine of Rs. 250/- with default stipulation for

the offence under Section 13(1)(d) read with Section 13(2) of the Act, 1988. His conviction and sentence has not been interfered

with by the High Court of Kerala.

2. The case of the prosecution was that the appellant

was working as a Lower Division Clerk in L-2 Section at the Sub-

Regional Transport Office, Attingal. One Manaf had applied for a

driving licence which was issued to him but since that was not

issued in book form, he made an application to get it converted

into book form. Despite several visits made by Manaf, the

appellant did not deliver him the driving licence in book form and

he was asked to come time and again. On April 24, 1989, when

Manaf visited the office, the appellant informed him that the

driving licence in book form was ready. The appellant demanded

an amount of Rs. 25/- for delivery of the driving licence in book

form. Manaf was not prepared to pay the money and he made

oral complaint to K. Krishna Pillai (PW-12), Deputy

Superintendent working in the Vigilance Unit, Thiruvanathapuram.

The oral complaint made by Manaf was reduced in writing

(Ext. P-20). PW-12 sent a requisition to the Director, State

Institute of Education seeking assistance of two persons to act as

independent witnesses. K.Krishnan Kutty (PW-1) and A.S. Abdul

Rahim (PW-2) were deputed accordingly. A pre-trap Mahazar

(Exh.P-1) was drawn after explaining the details of the trap and

2 the characteristics of phenolphthalein powder as well as its use

in the trap. Phenolphthalein powder was applied on currency

notes of Rs. 20/- and Rs. 5/- denomination (M.O.1 series).

PW-12 also asked the constable R.Vaman (PW-10) to

accompany him. PW-12, PW-1, PW-2, PW-10 and Manaf then

proceeded to Sub-Regional Transport Office at Attingal, at about

12.30P.M. on April 25, 1989 where the appellant was working.

PW-10 at the directions of PW-12 positioned himself to such a

vantage point that no sooner the money (M.O.1 series) was

accepted by the appellant and the signal was given, he was able

to collect that signal and give further signal to PW-12. As soon as

Manaf made the signal for the trap party, PW-12 rushed into the

office room where appellant was working and in the presence of

PW-1 and PW-2, he recovered money (M.O.1 series) from the

shirt pocket of the appellant. The appellant also had his own

currency notes (M.O.2 series) in the shirt pocket. P. Thankappan

(PW-3), N. Thankamony (PW-4), R. Rajan (PW-5),

P. Viswanathan (PW-6), K. Jayadevan (PW-7) and A. Sahadevan

(PW-8) were also present in the office at that time. A post trap

Mahazar (Ext.P-2) was prepared in the presence of PW-1 and

PW-2. A solution of sodium carbonate was prepared in a glass

tumbler. The appellant's left hand was dipped into solution of

3 sodium carbonate which turned pink. M.O.1 series currency

notes as well as one of the M.O.2 series currency notes which

was already in the pocket of the appellant answered the

phenolphthalein test positively. The left side pocket of shirt also

turned pink when sodium carbonate water was applied. Sodium

Carbonate bottles after conducting the tests were sealed.

3. The appellant was arrested and later on released on

bail.

4. PW-12 carried on the investigation; got the site plan

prepared by the Village Officer (PW-11) and on completion of

investigation sent the investigation papers through Director of

Vigilance to W.Joseph Devson (PW-9), Joint Transport

Commissioner, Thiruvanathapuram for sanction. PW-9 granted

sanction to prosecute the appellant for the offence under Section

7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988

which ultimately resulted in laying of the charge against the

appellant.

5. Section 7 of the Act is as follows -

"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

4 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 referred to in clause ) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."

6. Section 13 (1)(d) and (2) reads -

" 13. Criminal misconduct by a public servant. ; (1) A public servant is said to commit the offence of criminal misconduct, -

(a) .......

(b) .......

(c) .......

(d) if, he, -

(i) by corrupt or illegal means, obtains for himself or for any other person any valuation 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;

or (e) ......... (2) Any public servant who commits criminal misconduct shall be punishable with

imprisonment for a term which shall be not less than one year but which may extent to seven years and shall also be liable to fine."

7. The essential ingredients of Section 7 are: (i) that the

person accepting the gratification should be a public servant; (ii)

that he should accept the gratification for himself and the

5 gratification should be 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 function, favour or disfavour to

any person.

8. Insofar as Section 13 (1)(d) of the Act is concerned,

its essential ingredients are: (i) that he should have been a public

servant; (ii) that he should have used corrupt or illegal means or

otherwise abused his position as such public servant and (iii) that

he should have obtained a valuable thing or pecuniary advantage

for himself or for any other person.

9. In the case of C.K. Damodaran Nair v. Government of

India1, this Court had an occasion to consider the word "obtained"

used in Section 5(1)(d) of the Prevention of Corruption Act, 1947

(now Section 13(1)(d) of Act, 1988), and it was held:

"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused "obtained"

the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) -- and not under Section 5(1)(c), (d) or

(e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite 1 (1997) 9 SCC 477

6 for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment"."

10. The legal position is no more res integra that primary

requisite of an offence under Section 13(1)(d) of the Act is proof

of a demand or request of a valuable thing or pecuniary

advantage from the public servant. In other words, in the absence

of proof of demand or request from the public servant for a

valuable thing or pecuniary advantage, the offence under Section

13(1)(d) cannot be held to be established.

11. The core question that must be answered by us in

this appeal is: whether there is sufficient legal evidence on record

to bring home the guilt of the appellant for the offence under

Sections 7 and 13(1)(d) read with 13(2)?

12. Pertinently, Manaf (complainant) has not been

tendered in evidence by the prosecution. PW-12 (IO) in his entire

deposition has not stated a word as to why Manaf was not

examined or why it was not possible to tender him in evidence. In

the absence of examination of the complainant, there is no

substantive evidence to prove the factum of demand. The High

Court held that since the Special Judge made attempts to secure

the presence of the complainant and those attempts failed

7 because he was not available in India, there was justification of

non-examination of the complainant. We find it difficult to

countenance the approach of the High Court. In the absence of

semblance of explanation by the investigating officer for the non-

examination of the complainant, it was not open to the courts

below to find out their own reason for not tendering the

complainant in evidence. It has, therefore, to be held that the best

evidence to prove the demand was not made available before the

Court.

13. We shall now examine whether the evidence of other

witnesses sufficiently proves the demand? Suffice it to say that

prosecution has neither relied upon the evidence of PW-3 to

PW-8, who were present in the office at the time of raid nor the

evidence of panch witnesses (PW-1 and PW-2) to prove the

demand. The investigating officer (PW-12) also does not state

anything about the demand. The only evidence now remains is

that of PW-10. He stated, "I felt that he (complainant) was talking

something to the person who was sitting inside near the window

(the accused). Immediately complainant took out the money from

the left pocket of his shirt and offered it through the window." We

are afraid, the evidence of PW-10 hardly establishes the demand

8 allegedly made by the accused. The factum of demand, thus,

remains not proved.

14. Moreover, we find that the evidence lacks in quality

and reliability to record verdict of guilt against the appellant. PW-1

was initially declared hostile and public prosecutor sought

permission to cross examine him. In cross examination

conducted by public prosecutor, he partially supported the

prosecution case. Having considered his evidence minutely, we

find it difficult to give much credence to his evidence.

15. Insofar as PW-2 is concerned, he did not fully support

the case of prosecution. He deposed that he had an ear attack

two months before recording of his deposition and due to the

illness and the treatment, he could not recollect the details of the

incident. He also stated that he was suffering from depressive

psychosis. His evidence does not help the case of the

prosecution at all. Thus, the evidence of two independent

witnesses does not advance the prosecution case.

16. As a matter of fact, the Special Judge as well as the

High Court heavily relied upon the deposition of PW-10 in support

of the prosecution case. We were taken through the evidence

of PW-10 and, in our considered view, his evidence suffers from

serious infirmities. The Special Judge as well as the High court

9 were not even clear about the place where PW-10 has positioned

himself. He was not within the hearing range that he could hear

the conversation that is said to have taken place between the

complainant and the appellant. The defence of the appellant

was that the complainant attempted to thrust the currency notes

into his pocket. PW-10 stated that the currency notes (M.O. 1

series) were handed over by the complainant and accepted by

the appellant through the counter/window but admittedly the

complainant was found inside the office room when PW-12

reached. If the amount had already been handed over by the

complainant to the appellant through the counter/window, where

was an occasion for the complainant to be inside the office room

where the appellant was said to be sitting. This casts serious

doubt about the prosecution case and, more particularly, the

evidence of PW-10 that the amount was handed over by the

complainant from outside the window and accepted by the

appellant while sitting inside the room.

17. The High Court noticed: "But why was CW-1

(complainant) found inside the office room? Though such a

specific version has not at all been given by the prosecution,

probabilities unmistakably suggest that the presence of

complainant inside the room obviously must have been

10 necessarily to sign the acknowledgment on Ext. P-23(a). Specific

evidence, I repeat is not available on the point." Strangely, the

High Court made out a new case in favour of prosecution although

it was not stated by PW-10 nor anyone that the complainant

entered the room, after handing over money to the accused, to

sign the acknowledgement on the register [Ext. P-23(a)]. As a

matter of fact the presence of the complainant inside the room

renders the evidence of PW-10 highly doubtful.

18. In our view, with such interested evidence of PW-10,

who is a police constable and subordinate to PW-12, it would be

not only unsafe but dangerous to rest conviction upon his

testimony.

19. It needs no emphasis that the prosecution has to

prove the charge beyond reasonable doubt like any other criminal

offence and the accused should be considered innocent till it is

established otherwise by proper proof of demand and acceptance

of the illegal gratification, the vital ingredient, necessary to be

established to procure a conviction for the offences under

consideration.

20. The High Court drew presumption under Section 20 of

the Act for charge under Section 7. Based on that, it was held

11 that the prosecution has proved the offence punishable under

Section 7 of the Act.

21. Section 20 of the Act, 1988 reads thus:-

"20. Presumption where public servant accepts gratification other than legal remuneration. -

(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause

(b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration ) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

22. Sub-Section (3) is a "non-obstante clause". It provides

that where the gratification is trivial and the Court is of opinion that

12 no inference of corruption may fairly be drawn, it may decline to

draw the presumption as referred to in sub-Sections (1) and (2).

In other words, the Court is not bound to draw a presumption

under Section 20 where the alleged gratification is too trivial. In a

case such as this an inference of corruption may not be fairly

drawn as the alleged demand was of Rs. 25/- only. In our view,

the High Court was not justified in drawing the presumption under

Section 20 and holding that offence punishable under Section 7

of the Act was proved.

23. Mere recovery of currency notes (Rs. 20/- and Rs.5/-)

denomination, in the facts of the present case, by itself cannot be

held to be proper or sufficient proof of the demand and

acceptance of bribe. When the evidence produced by the

prosecution has neither quality nor credibility, it would be unsafe

to rest conviction upon such evidence. It is true that the

judgments of the courts below are rendered concurrently but

having considered the matter thoughtfully, we find that the High

Court as well as the Special Judge committed manifest errors

on account of unwarranted inferences. The evidence on record

in this case is not sufficient to bring home the guilt of the

appellant. The appellant is entitled to the benefit of doubt.

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24. Consequently, the appeal is allowed. The conviction

and sentence of the appellant is set aside and the fine if paid,

shall be refunded to the appellant. The bail bonds are cancelled.

........................J (V.S. Sirpurkar)

...

.....................J (R.M. Lodha ) New Delhi, May 26 , 2009

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