M K HARSHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant who at the relevant time was working as an Executive Engineer has been tried and found guilty under S. 161 of the IPC, and S.5(2) of the Prevention of Corruption Act read with S. 5(1)(d) thereof. The trial court convicted the appellant for the said offences and sentenced him to undergo imprisonment for one year under each count and the sentences were directed to run concurrently. He was further sentenced to pay a fine of Rs. 500/- in default to suffer simple imprisonment for one month. The convicted accused preferred an appeal before the High Court which was dismissed. However, the sentence of imprisonment has been reduced to six months' R.I. Hence, the present appeal pursuant to the special leave granted.

(2.) Before the courts below, two main contentions were put forward. Firstly, there was no valid sanction and, secondly, that PW-1 who is the complainant in the case, cannot be relied upon at any rate since there is no other independent evidence which corroborates his version and lends the necessary accurance. In this appeal, the point regarding the validity of the sanction has not been urged. Mr. Kapil Sibal, learned senior counsel, however, submits that in a case of this nature this Court has held in a number of cases that the evidence of a trap witness i.e. complainant who is in the nature of an accomplice, has to receive some corroboration which is totally lacking in this case and the version regarding the acceptance of the bribe is rather shaky and in such a situation the plea put forward by the accused, namely, that in his absence the money had been planted in the drawer of his office table, appears to be possible and, consequently, the appellant is entitled to the benefit of doubt. To appreciate the above contention, it becomes necessary to state few basic facts.

(3.) PW-5 is the owner of a theatre at Kodakara and PWs. 1 and 7 are his sons. PW-1 was managing the theatre. A licence to run the same was issued by the Panchayat and the same was to expire on 25-6-83. As early as 22-5-83, PW-5 submitted a renewal application and the licence could be renewed only after a fitness certificate regarding the building was issued by the Executive Engineer, namely, the appellant. The appellants, in turn, had to do so on the basis of the report given by an Asstt. Engineer, DW-1, who is subordinate to him. However, there was a report given by DW-1 on 22-6-83 but the fitness certificate was not issued for some reason or the other. DW-1 was personally taken by PW-1 to the appellant on 22-6-83 and told him that the licence has to be renewed on or before 25-6-83 and therefore the certificate had to be issued, for which the appellant did not oblige. Then, it is alleged, that he met the appellant twice on 25-6-83 but without any success. Then on 27-6-83, PW-1 met the appellant in his office at about 12-30 p.m. when he was told that unless 'mamool' was paid, necessary orders could not be passed and for that he demanded Rs. 200/-, PW-1 was not in a mood to pay the bribe. He went to the Vigilance Police and gave the information to Dy. Superintendent of Police, PW-11, and on the same day a case was registered, observing the usual formalities and a trap was arranged. PW-2 and two other Gazetted Officers were arranged as witnesses for the trap. PW-3, a Police Constable, was asked to go along with PW-1 and wait outside to give the necessary signal after PW-1 hands over the money. The tainted money was subjected to Phenolphthalein test and a Mahazar was drawn. Thereafter a trap party went to the office of accused and stopped at a distance and then PW-1 was asked to go with the money into the office of the accused and after handing over the money was asked to give a signal which had to be relayed by PW-3. According to the prosecution, on 27-6-83 at about 4 p.m. the trap party went to the office as per the pre-arranged plan and PW-1 went inside and a little later, gave the necessary signal which was relayed. PWs. 3,11 and the mediators entered into the office of the appellant and found him seated in his chair and came to know that the sum was in the drawer of his table. The sum was recovered and a usual Phenolphthalein test was carried out, and a Mahazar was prepared incorporating all the proceedings. The accused was arrested and after completing the investigation a chargesheet was laid.