AKBAR P A Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) The appellant is the accused in CC No. 37/98 on the file of the Special Judge, Ernakulam. He was prosecuted by PW 17, the Inspector of Police, SPE / CBI, Cochin alleging offences under S.7 and S.13(2) read with 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as 'the PC Act'). The learned Special Judge on conclusion of trial arrived at a finding of guilt. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month for offence under S.7 of the PC Act. For offence under S.13(2) read with 13(1)(d) he was sentenced to rigorous imprisonment for one year and a fine of Rs.2000/- with a default sentence of simple imprisonment for two months. Assailing the above conviction and sentence this appeal was preferred.

(2.) The prosecution case in brief is that the appellant was working as a Clerk in the Area Accounts Office, Navy in Thevara and as such he was a public servant coming under S.2(c) of the PC Act. PW 1, Josy, was working as a Driver in INS Venduruthy, Cochin. He submitted Ext. P4 application dated 20/05/1998 for Leave Travel Concession (LTC) along with dependency certificate of the parents, details of the family etc. He had also filed Ext. P7 application dated 27/05/1998 for sanctioning advance. Ext. P8 application for leave dated 20/05/1998 was also submitted. Though leave was sanctioned, advance was not sanctioned. On 29/06/1998, when he contacted the office, it was informed that his application for advance was not received from ACDA. On enquiry it was known that the appellant was dealing the file. PW 1 approached the appellant. Then the appellant gave Ext. P10 scribble. After coming out of the office he read Ext. P10 wherein PW 1 was asked to meet the appellant at the bus stop at Thevara within 10 to 15 minutes. PW 1 waited at the bus stop as requested in Ext. P10. A few minutes later, the appellant reached there. PW 1 requested the appellant to take steps for sanctioning the advance. The appellant, then demanded a sum of Rs.1000/- as bribe to be paid within two days stating that there are certain procedures. On the following day, the appellant telephoned PW 1 and insisted to pay the amount at the bus stop near Thevara junction in the evening. PW 1 being got aggrieved, contacted Poulose who was a Deputy Superintendent of Police familiar to him. PW 1 was informed that CBI is the forum and advised to complain to the CBI. He went to the CBI office and filed Ext. P1 complaint before the Superintendent of Police. The Superintendent of Police forwarded the same to PW 2, an Inspector attached to the Superintendent. PW 2 after going through Ext. P1 asked whether PW 1 had brought the money for paying to the appellant. Since PW 1 had no money to pay to the appellant, PW 1 was asked to go and return with money. Accordingly, PW 1 went out and returned to the police station with Rs.1000/- which was marked as MO 2 series. In the mean while, PW 2 had made arrangements to lay a trap. Two independent witnesses, of whom one was examined as PW 4, were also arranged. PW 2 got MO2 series from PW 1 and demonstrated phenolphthalein test. The complaint of PW 1 was appraised to PW 4 and another witness who was cited by the prosecution as CW 2. MO 2 series were given back to PW 1 after smearing phenolphthalein powder with instruction to pay it only on demand. Narrating the above process Ext. P2 Mahazar was prepared. CW 2 was sent along with PW 1 to the bus stop at Thevara. PW 2 along with PW4 and the party followed them and they took positions in and around the bus stop. By about 4.30-4.45 p.m., the appellant reached there. After some conversation with PW 1, both proceeded to Murali hotel, which was adjacent to the bus stop. PW 2 and the party shadowed them. The appellant along with PW 1 went inside and ordered for tea and snacks. PW 2 along with PW 4 and party also entered the hotel and ordered for tea and snacks. After tea and snacks, the appellant along with PW 1 came out. The appellant paid the bills. Thereupon, the appellant repeated his demand responding to which PW 1 took out MO 2 series and handed over to the appellant which he accepted with his right hand and kept inside the pocket of the shirt. PW 1 conveyed the signal. While the appellant was going out of the hotel PW 2 intervened and disclosed his identity. He introduced PW 4 and CW 2 and asked whether the appellant had received bribe from PW 1. The appellant was got perplexed. He admitted of having taken bribe from PW 1. The hands of the appellant were subjected to Phenolphthalein test. The Phenolphthalein test on the right hand turned positive. The appellant was arrested. As asked by PW 2, the appellant took out MO 2 series and handed over. The identity of the same was verified with reference to Ext. P2 mahazar. After satisfying the identity, MO 2 series were recovered for which Ext. P3 recovery mahazar was prepared. The body of the appellant was searched. Thereafter, the house and the office of the appellant were also searched. The investigation was taken over by PW 17. After completing the investigation, the final report accusing the appellant for the above said offences was submitted before the Trial Court.

(3.) The learned Special Judge took cognizance and issued process responding to which the appellant entered appearance. Copy of the final report and connected documents were furnished to the appellant. He was heard and then charge was framed on finding that there are materials to send the appellant for trial. The appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 17 were examined. Exts. P1 to P45 were marked. During cross examination of PWs 3 and 4, portions of the CD statements were marked as Exts. D1 and D2. MOs 1 to 12 were also marked. Thereupon, the appellant was questioned under S.313(1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence. He, in a written statement submitted that the file of PW 1 was returned as it was already lapsed and not signed by the Accounts Officer. PW 1 came to his office around 11.30 a.m. in a drunken condition. Though the appellant explained the position, PW 1 was not satisfied. He was agitated and accused the appellant having purposefully delayed the passing of the LTC. Without further waiting for the explanation of the appellant, PW 1 dashed away from the office with incoherent spells of threat. By noon, when appellant had been at Vrindavan hotel, Thevara as usual for meals. PW 1 followed him into the hotel. Though PW 1 was more drunk, his attitude was changed considerably. PW 1 took lunch along with the appellant. Appellant explained the position, which he realised and they became friends. PW 1 enquired about the daily routines. On the following day, though the appellant was on leave he went to the office and collected his salary and he went to Muraly hotel for taking tea. PW 1 also reached there. They had tea from the hotel. They were in the family room. After the tea and snacks, the appellant paid the bill. PW 1 interfered and stated that he would pay the bill. Stating that it was his privilege, the appellant paid it and while going out, PW 1 took something from his pocket and thrust into the pocket of the shirt of the appellant. The appellant objected the same. Within moment, PW 2 and party rushed to him and he was got scared. The appellant was asked to sign some papers for bail. He was taken to the office and certain documents were seized. Thereafter he was taken to his house. PW 2 and party acted like searching his house. But nothing was recovered from his house. Responding to the call for adducing defence evidence, two clerks attached to the Area Accounts Office were examined as DWs 1 and 2. Exts. D3 and D4 were marked. The learned Special Judge, on appraisal of the evidence, as mentioned above, arrived at a finding against the appellant. Now this appeal.