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2019 Supreme(Mad) 2095
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. UBAID, J.
P. Kunhikrishnan – Appellant
Versus
State of Kerala – Respondent
Crl. A. No. 205 of 2010
Decided On : 01-04-2019
Advocate Appeared:
For the Appellant : S. Rajeev, Adv.
For the Respondent: Santhosh Peter, P.P.
Headnote:
PC Act - Section 13 – Criminal Procedure Code - section 313 - Prevention of Corruption Act, 1988 - Section 13 - trial court – Offence of murder - simple imprisonment - Before going to the factual aspects regarding the alleged acceptance of illegal gratification, and also the nature of the works and duties of the accused as Overseer, let me see whether the prosecution has proved the required sanction under Section 19 of the PC Act. PW7 has given evidence that the authority to appoint, and also to remove an Overseer at the relevant time was the Director of Panchayat, and as on 06.08.2003, he was Additional Director of Panchayat having full additional charge of the Director of Panchayat. He has proved the Ext. P16 prosecution sanction granted by him in his capacity as Director of Panchayat, and he has given evidence that it was granted by him on an independent application of his mind after perusing the entire case records. When cross-examined he stated that for about 11 months he had full additional charge of the Director of Panchayat, and he took charge from the then Director Sri T.J. Mathew Elias – Held, On an appreciation of the evidence, I find that the prosecution case stands well proved. The twin requirements of demand and acceptance are well proved by the evidence of the material witnesses. I find that the accused was rightly found guilty and convicted by the trial court under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act - Now the question of sentence. For a silly thing, or for just Rs. 1,500/-, the accused has spoiled his career. The sentence imposed by the court below for the two offences is rigorous imprisonment for two years each, and the fine sentence is only Rs. 5,000/- each. As regards fine sentence, there is no scope for interference in appeal. But the default sentence can be slightly reduced. As on the date of detection in this case, the minimum sentence prescribed for the offence under Section 7 of the PC Act was imprisonment for six months, and the minimum sentence for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act was imprisonment for one year. Now the minimum sentence stands enhanced by the amendment of 2014. On a consideration of the various aspects, I find that the minimum sentence will be the adequate sentence in this case - In the result, the conviction against the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act in C.C. No. 51 of 2003 of the court below is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court under Section 7 of the PC Act will stand modified and reduced to simple imprisonment for six months, and the substantive sentence under Section 13(1)(d) read with Section 13(2) of the PC Act will stand modified and reduced to simple imprisonment for one year. The two substantive sentences will run concurrently, and the accused will also get the benefit of set off, if any - appeal is disposed of
ORDER :
P. Ubaid, J.
1. The appellant herein was the 2nd Grade Overseer of the Nileswar Grama Panchayat in June 2002. The improvement work on a road within the Panchayat, by name "Mundemmad road", sanctioned by the Panchayat under the Peoples' Campaign Programme for the year 2001-2002 was entrusted to one M.V. Bharathan as the Convener of the committee formed for the purpose with the participation of the people, and the estimated amount was Rs. 50,000/-. The work was carried out by the said M.V. Bharathan, it was check-measured by the Engineers and also the Overseer, and finally, the said M.V. Bharathan submitted bill for payment. It was the duty of the 2nd Grade Overseer of the Panchayat to prepare memo of payment after the works being check-measured by him and the Engineers, and accordingly, the said M.V. Bharathan approached the accused, and requested him to prepare the memo of payment. He first met the Panchayat Secretary, and as asked by the Secretary, Bharathan met the accused. The prosecution case is that for preparing memo of payment the accused demanded an amount of Rs. 2,000/- from the said Bharathan on 25.06.2002, and on bargain the amount was reduced to Rs. 1,500/-. Accordingly, Bharathan was required by the accused to meet him at his office on 27.06.2002 before noon for making such payment. As Bharathan was not inclined to make payment of bribe, he contacted the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau (VACB), Kasaragod. As instructed by the Dy. S.P., Bharathan made a complaint on 27.06.2002 itself. On the said complaint, the Dy. S.P., VACB registered a crime, an amount of Rs. 1,500/- (three currency notes of Rs. 500/-) was received as per an entrustment mahazar, and the required phenolphthalein test was demonstrated to the complainant and others, for trapping the accused. At about 12.45 p.m., the said M.V. Bhararathan, followed by the vigilance team reached the Nileswar Grama Panchayat office, and Bharathan met the accused at his office. When the accused repeated his demand, Bharathan made payment of the phenolphthalein tainted currency of Rs. 1,500/- to the accused, and conveyed the pre-arranged signal to the vigilance team. On getting the signal conveyed by a member of the team, the Dy. S.P. reached the spot, and interrogated the accused. When the Dy. S.P. questioned the accused whether he had received bribe from Bharathan he denied, but the result of the phenolphthalein test conducted by the Dy. S.P. On the spot turned positive. When further questioned, the accused stated where he had kept the phenolphthalein tainted currency. As shown by him, it was taken from inside the files kept on the rack near the seat of the accused. The accused was arrested on the spot, and the phenolphthalein tainted currency was seized as per a mahazar. The Dy. S.P. himself conducted investigation, and he submitted final report in Court.
2. On the allegation of acceptance of illegal gratification for discharging his official duty of preparing memo of payment, the accused faced trial before the Special Court (Vigilance), Kozhikode in C.C. No. 51 of 2003. He entered appearance before the trial court, and pleaded not guilty to the charge framed against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short "the PC Act"). The prosecution examined 12 witnesses, and proved Exts. P1 to P23 documents in the trial court. The MO1 to MO3 properties including the phenolphthalein tainted currency notes seized from the possession of the accused were also identified.
3. The accused denied the incriminating circumstances, when examined under section 313 Cr.P.C., and projected a defence that he was viciously trapped by the complainant at the instigation of the other employees and Panchayat authorities for the reason that he had, on many occasions, pointed out some irregularities and malfeasance on the part of the other employees. The accused did not adduce any oral evide
