MOHAMMED ISMAIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein was grade -II Surveyor in the Office of the District Survey Superintendent, Alappuzha in February-March 2006. On the allegation that he accepted an amount of Rs.500/- as illegal gratification from One Babu, on 06.03.2007, as a reward for changing the "Thandaper" number regarding the co-ownership property of the said Babu and others, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Kottayam in C.C.No.2 of 2009. The father of the complainant Babu died intestate, and the property left by him was partitioned among the legal heirs including the complainant Babu. He made complaint before the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Alappuzha, that on 03.02.2007, his brother Raju was called over telephone by the appellant, and was required to come to his office in connection with Raju's application dated 08.03.2006 for "Thandaper" registration.

(2.) The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (PC Act). The prosecution examined eight witnesses in the trial court, and marked Exts.P1 to P22 documents. MO1 to MO7 properties were also marked during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and submitted that he had not accepted any illegal gratification from the complainant on the date alleged, or on any previous date. Though opportunity was granted by the trial court, the accused did not adduce any evidence in defence. However, the Ext.D1 letter was marked on his side during trial. The complainant examined as PW1 turned hostile to the prosecution fully, but the trap witness supported the prosecution. On an appreciation of the evidence, the learned trial judge found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for six months, and to pay a fine of Rs.5,000/- under Section 7 of the PC Act, and to undergo rigorous imprisonment for another period of one year, and to pay a fine of Rs.10,000/- under Section 13(2) read with Section 13(1)(d) of the PC Act, by judgment dated 28.09.2013. Aggrieved by the judgment of conviction, the accused has come up in appeal.

(3.) When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant was found guilty by the trial court without any basis or evidence, in spite of the fact that the complainant himself disowned his complaint, and turned fully hostile, and that no effort was made by the detecting officer to recover the tainted money, for a successful prosecution. The learned Public Prosecutor, in-charge of the case submitted that the prosecution case stands otherwise proved, though the complainant turned hostile, and that the accused cannot claim acquittal, on the ground that the tainted money could not be recovered during the process of detection.