T. BHARGAVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) A Civil Surgeon in Government service, who accepted excess fee for private consultation or for medical certificate, has been facing the trauma of prosecution under the Prevention of Corruption Act (for short, 'the P.C. Act') for fifteen years. The Vigilance and Anti Corruption Bureau (VACB) initiated prosecution against him on the complaint of one Biju Kumar. Smt. Chandrika, wife of Biju Kumar, had undergone a sterilisation operation in the Community Health Centre, Kalpetta. Her husband Biju Kumar filed a complaint before the VACB, Wayanad Unit, that the doctor who conducted operation (appellant herein) had accepted an amount of Rs. 500/ - on 03.08.2000 as fee for conducting operation, and when he approached the doctor for a medical certificate after the operation, the doctor demanded an amount of Rs. 350/ - for issuing the certificate. Accepting the demand, Biju Kumar left the residence of the doctor, and straight away went to the Vigilance office to make a complaint. On his complaint, the Dy.S.P., VACB, Wayanad Unit registered a crime, and made arrangements for a trap. The amount of Rs. 350/ -brought by Biju Kumar was received as per mahazar for the purpose of trap, the Dy.S.P. arranged a public servant as trap witness, demonstrated phenolphthalein test to the complainant and the witness, and instructed the complainant Biju Kumar to hand over the phenolphthalein tainted currency to the doctor, on demand. Accordingly, Biju Kumar went to the residence of the doctor at about 6.50 p.m. on 07.08.2000 and paid the amount. On getting signal from the complainant, the Vigilance team led by the Dy.S.P. reached at the residence of the doctor, seized the phenolphthalein tainted currency, and arrested the doctor. After investigation, the VACB submitted final report before the learned Enquiry Commissioner and Special Judge (Vigilance), Kozhikode.

(2.) THE appellant herein faced trial before the learned Special Judge in C.C. No. 21/2002, and pleaded not guilty to the charge framed against him by the trial court under Section 7 of the P.C. Act, 1988. The prosecution examined twelve witnesses in the trial court including the complainant, Biju Kumar, and the Dy.S.P., who arranged the trap, and also marked Exts.P1 to P20 documents. The material objects including the phenolphthalein tainted currency seized from the accused were identified and marked as MO1 to MO8 during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances and maintained his definite defence that he had not demanded or accepted anything illegal, and that the money received by him was only the legitimate fee as part of his private practice, by way of professional fee and certificate fee. Though opportunity was granted by the trial court, no evidence was adduced by the accused in defence. During trial, the complainant, Biju Kumar, turned fully hostile to the prosecution. However, the prosecution proceeded to prove the trap by examining the Dy.S.P., who arranged the trap, and also the other witnesses cited by the prosecution, including the public servant arranged by the Dy.S.P. to witness the trap. In fact, the said public servant also had not actually witnessed the alleged acceptance of amount by the doctor. However, relying on the evidence of the Dy.S.P., who arranged the trap, and on the basis of the recovery of phenolphthalein tainted currency from the possession of the accused, the learned trial Judge found the accused guilty under Section 7 of the P.C. Act. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay fine of Rs. 2,000/ - as per judgment dated 13.04.2007. Aggrieved by the said conviction and sentence, the accused has come up in appeal.

(3.) OF the twelve witnesses examined by the prosecution in the trial court, PW1 is the complainant Biju Kumar, and PW2 is a public servant arranged by the Dy.S.P. to witness the trap. PW11 is the Dy.S.P. (Vigilance), who arranged the trap in this case and detected the offence, and PW12 is the Vigilance Inspector, who conducted the investigation. PW3 to PW5 and PW7 to PW10 are the doctors and nurses including the District Medical Officer, examined to prove some medical documents including the service particulars of the accused as a doctor in Government service, and the case sheet relating to the wife of the complainant. Their evidence need not be discussed in this case, except a portion of the evidence of PW3 that the appellant is authorised under the law to accept fee for medical certificate, and for private consultations.