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2015 Supreme(Ker) 87
HIGH COURT OF KERALA
K. RAMAKRISHNAN, J.
George Varghese, Former Assistant Edappally – Appellant
Versus
State of Kerala, represented by The Public Prosecutor – Respondent
Crl. A. No. 24 of 2001 (C)
Decided On : 06-02-2015
For the Appellant:P. Vijaya Bhanu, P.M. Rafiq, Advocates.
For the Respondent: K.K. Rajeev, Public Prosecutor.
The presumption of guilt under Section 20 of the Prevention of Corruption Act, 1988 can be rebutted by the accused by giving a plausible explanation for the possession of the amount allegedly paid as bribe.
Headnote:
Prevention of Corruption Act, 1988 - Section 7, 13, 20 - Demand and acceptance of illegal gratification - Presumption - Rebuttal - Explanation by accused - Appreciation of evidence - Corroboration of evidence - Trap witnesses - Conduct of accused - Legality of sanction - Authority to initiate proceedings for collection of restoration charges.
Fact of the Case:
The appellant, an Assistant Engineer in the National Highways Department, was accused of demanding and accepting illegal gratification from the complainant for ratifying the complainant's act of constructing a private road from the national highway without permission. The appellant was caught in a trap laid by the Anti-Corruption Bureau and the amount allegedly paid as bribe was recovered from his possession. The appellant denied the charges and claimed that he had only demanded the restoration charges payable by the complainant for the purpose of ratifying the illegal act committed by him.
Finding of the Court:
The court held that the prosecution had failed to prove beyond reasonable doubt that the appellant had demanded and accepted illegal gratification. The court noted that the evidence of the prosecution witnesses was not consistent and that there were discrepancies in their statements. The court also noted that the appellant had given a plausible explanation for the possession of the amount allegedly paid as bribe. The court further held that the sanction for prosecution granted by the Secretary of the Vigilance Department was valid and that the Assistant Engineer had the authority to initiate proceedings for collection of restoration charges.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellant had demanded and accepted illegal gratification? 2. Whether the appellant had rebutted the presumption of guilt under Section 20 of the Prevention of Corruption Act, 1988? 3. Whether the sanction for prosecution granted by the Secretary of the Vigilance Department was valid? 4. Whether the Assistant Engineer had the authority to initiate proceedings for collection of restoration charges?
Ratio Decidendi: 1. The court held that the prosecution had failed to prove beyond reasonable doubt that the appellant had demanded and accepted illegal gratification. The court noted that the evidence of the prosecution witnesses was not consistent and that there were discrepancies in their statements. The court also noted that the appellant had given a plausible explanation for the possession of the amount allegedly paid as bribe. 2. The court held that the appellant had rebutted the presumption of guilt under Section 20 of the Prevention of Corruption Act, 1988. The court noted that the appellant had given a plausible explanation for the possession of the amount allegedly paid as bribe and that this explanation was supported by the evidence on record. 3. The court held that the sanction for prosecution granted by the Secretary of the Vigilance Department was valid. The court noted that the Secretary of the Vigilance Department was the appointing authority of the appellant and that he had the authority to grant sanction for prosecution. 4. The court held that the Assistant Engineer had the authority to initiate proceedings for collection of restoration charges. The court noted that the Assistant Engineer was empowered to issue notices under Section 11(2) of the Land Conservancy Act and that he had the authority to initiate proceedings for collection of restoration charges.
Final Decision: The court allowed the appeal, set aside the conviction and sentence passed by the lower court, and acquitted the appellant of the charges levelled against him.
1. Accused in C.C.29/1999 on the file of the Enquiry Commissioner and Special Judge, Thrissur, is the revision petitioner herein. The appellant was charge-sheeted by the Deputy Superintendent of Police, VACB, Ernakulam, in VC- 9/97 of VACB, Ernakulam, under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter called the P.C. Act).
2. The case of the prosecution in nut shell was that, while the appellant was working as Assistant Engineer, NH ADB Section I/II/II, Edappally, during 1997 abused his official position and demanded Rs.2,000/- as illegal gratification from PW2 and accepted Rs.200/- earlier and thereafter reiterated the demand for the balance amount of Rs.1,800/- on 29.03.1997 at 3.00 p.m., from his office at Edappally and thereafter fixed the amount as Rs.1,000/- and in furtherance of that demand accepted Rs.800/- from PW2 on 31.03.1997 at 10.30 a.m., / 10.50 a.m., from his office at Edappally, as a motive or reward for showing a favour and rendering his service in the official function and as such he had committed the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. After investigation, final report was filed before the Enquiry Commissioner and Special Judge, Thrissur and the learned Special Judge had taken cognisance of the case as C.C.No.29/1999.
3. When the appellant appeared before the court below, after hearing both sides, charge under Section 7 and 13(1)(d) read with Section 13(2) of the P.C. Act was framed and the same was read over and explained to him and he pleaded not guilty. Since there was some error crept in stating the ingredients of Section 13(1)(d) read with Section 13(2) of the P.C. Act in the original charge, that alone was amended later and after amendment, the amended change was read over and explained to him again and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P18 and Mos 1 to 13 were marked on their side. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he had not made any demand and he had only asked for the restoration charges payable by PW2 for the purpose of ratifying the illegal act committed by him by filling the earth to connect his property with the national high way as required under law and as such he had not committed any offence. In order to prove his case, DW1 was examined and Exts.D1, contradiction of PW3 in his 161 statement, D2 file and D2(a) and D2(b), D3, D3(a) and D3(b) through PW6 were marked on the side of the defence. After considering the evidence on record, the court below found the appellant guilty under Section 7 and 13(1)(d) read with Section 13(2) for the P.C. Act and convicted him there under and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of 25,000/-, in default Rs. to undergo simple imprisonment for one year under Section 7 of the P.C Act and further sentenced him to undergo rigorous imprisonment for four years under Section 13(1)(d) read with Section 13(2) of the P.C. Act and directed the sentences to run concurrently. Aggrieved by the same, the present appeal has been preferred by the appellant/ accused before the court below.
4. Heard the counsel for the appellant and the learned Public Prosecutor.
5. The counsel for the revision petitioner submitted that, the evidence adduced on the side of the prosecution is not sufficient to prove either the demand or acceptance of the amount as claimed by the prosecution. Mere possession of the amount alone is not sufficient to attract the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act. It must be proved by the prosecution that, the amount demanded is the amo
