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2011 Supreme(Ker) 1151
High Court of Kerala
P.S. Gopinathan, J.
E V Shaji - Appellant
Versus
State of Kerala - Respondent
Crl.A. No. 473 of 2004
Decided On : 21-06-2011
Headnote:
Prevention of Corruption Act 1988 - Sections. 7, 13( 2) and13( 1)(d) - Public servant taking gratification other than legal remuneration in respect of an official act - Criminal misconduct by a public servant - Whether proved - Merely because the solution, wherein the Phenolphthalein smeared notes were dipped, turned colourless at the time of evidence is not a reason to reject the prosecution case as such - Whether Phenolphthalein test conviction would lie, if the other evidence is credible - Challenged - Held, Phenolphthalein is an organic compound of the phthalein family. It is widely employed as an acid-base indicator. It is colourless below PH 8 and attains deep red hue above PH 10. When the corner of the currency notes is dipped in the surface, PH value in the surface solution would exceed PH8 and would become pink. When shaken the average PH value would go down and the colour would disappear. In other way, Phenolphthalein is colourless in acidic solution and pink in basic solution. In strong basic solutions its pink colour undergoes a rather slow fading and would become colourless again. Therefore, the possibility for fading the colour by course of time also cannot be ruled out. Suppose the public servant accepts the bribe money with hand, the stain on hand would be a piece of evidence to establish that it was accepted by hand. There may be clever bribe takers. They may ask the bribe giver to put it in the drawer of the table or place it on the table or even over any file or paper. In such cases, if the trap is made soon after so doing, there may not be any stain on hand. Therefore, in such circumstances, what is more relevant is the credibility of other evidence, whether it is believable or not. If believable, even if there is no Phenolphthalein test conviction would lie. The appellant has no case that M.O.1 series were not recovered from the drawer of the table or that the corner of M.O.1 series was not dipped in the solution. Verification and assertion of identity after recovery deposed by PW.7 and 8 remains unassailed. So, identity of M.O.1 series can no way be disputed. In the above circumstances, especially taking into account the nature of the defence advanced, even though M.O.5 solution was found colourless at the time of evidence, it is not at all a sufficient reason to reject the prosecution case - In the result, the appeal fails and accordingly dismissed
P.S. Gopinathan, J.
1. The Enquiry Commissioner & special Judge, Thiruvananthapuram, in C.C. No. 7 of 2002 convicted the appellant for offences under Section 7 and 13(2) r/w 13(1 )(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') and sentenced to rigorous imprisonment for one year on each count with a fine of Rs. 3,000/- and Rs. 5,000/- under Section 7 and 13(2) r/w Section 13(1)(d) respectively. Assailing the above conviction and sentence, this appeal is preferred.
2. PW.1 Jimmy John belongs to Fishermen community. In 2001, he was studying in ITI, Chandanathopu. He was entitled to stipend as the son of a fisherman. The appellant, who was an employee in the Kerala Legislative Secretariat, was working as Fisheries Officer in the Office of the Fishermen Welfare Fund Board, Padappakkara, at Mukkada, in Kollam District, on deputation basis. PW.1 obtained an application form to apply for stipend. It contained an inner form for certifying the community of the applicant. It was sent to the appellant, who had to certify that PW.1 is the son of a fisherman, through PW.2, the sister of PW.1 on 15.1.2001. The father of the appellant John Bosco died on 26.8.2000. He was a member of the Fishermen Welfare Fund. The bereaved members of the family of the fisherman are entitled to a solatium amounting to Rs.5,000/-. PW.3, the mother of PW.1 applied for the same and a cheque for Rs. 5,000/- was released on 6.1.2001 by the appellant. At the time of delivering the cheque, the appellant demanded a sum of Rs. 500/-. But PW.3 did not heed. When PW.2 requested for the certificate, according to the prosecution, the appellant demanded Rs. 500/- and stated that unless the payment is made, the certificate would not be issued. On 17.1.2001, PW.1 along with PW.3 went to the appellant. The appellant repeated his demand and sent them without issuing the certificate. Being got aggrieved. PW.1 went to PW.8. the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kollam and lodged Ext.Ext.P1 First Information Statement on the basis of which a case as Crime No. 1/2001 for offence under Section 7 of the PC Act was registered. PW.8 made arrangements for the trap. M.O.1, series, five 100 rupee currency notes brought by PW.1were seized by PW.8 It was smeared with Phenolphthalein powder and gave back to PW. 1 with instruction to pay the same only on demand. PW.8 along with the independent witnesses and trap party proceeded to the office of the appellant. PW.7, the then Deputy Registrar of Co-operative Societies, whose presence was procured by PW.8 to witness the trap, was sent along with PW. 1 as a shadow witness. At about 5 p.m., when PW. 1 gave Ext.P3 application for issuing the certificate, the appellant repeated the demand pursuant to which PW. 1 paid M.O.1 series to the appellant. It was accepted by the appellant and put it into the drawer of the table. As instructed earlier, PW.1 conveyed signal. Getting the signal, PW.8 rushed to the appellant, caught red handed and M.O.I series were recovered for which separate Mahazar was prepared. PW.8 took over the investigation which was later taken over by PW.9, who, after obtaining sanction under Section 19. submitted the final report before the trial court.
3. The learned Judge took cognizance and issued process, responding to which the appellant appeared. Copy of the final report with connected records were furnished. Either side was heard. On finding that there are materials to send the appellant for trial, a charge for the said offences was framed to which the appellant pleaded not guilty when read over and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P21 were marked. M.Os. 1 to 6 were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evi
