STATE OF KERALA Vs. T. KUNHIRAMAN

JUDGEMENT

(1.) IN a prosecution brought against the respondent herein under Section 7 read with Sections 13(2) and 13(1)(a) of the Prevention of Corruption Act (for short, 'the Act') at the instance of the Vigilance and Anti Corruption Bureau (VACB), Kasaragod, on the allegation, that while working as Village Officer of the Palavayal Village in Wayanad District, the respondent received Rs. 500/ - as bribe for issuing a certificate regarding the stage of construction of a house for which the beneficiary, Thomas, was sanctioned some loan under the Mythri Housing Scheme of the Government of Kerala, the Enquiry Commissioner and Special Judge, Kozhikode acquitted the respondent by judgment dated 24.02.2007 in C.C. No. 5/2001. The said judgment of acquittal is under challenge before this Court by the Government of Kerala. Crime in this case was registered on a complaint made by Thomas. The Dy.S.P. in charge accepted the complaint, registered a crime, received a currency of Rs. 500/ - handed over by the complainant Thomas, he applied phenolphthalein on the currency, prepared a mahazar at the office of the Dy.S.P., and instructed the complainant (Thomas) to hand over the currency to the respondent. Thomas, as instructed by the Dy.S.P., VACB, handed over the amount to the respondent. Thomas paid the amount while the respondent was sitting in a jeep, on a trip to an inspection site. Within no time, the Dy.S.P. who came to the spot seized the said currency of Rs. 500/ - paid by Thomas, as per mahazar, after conducting phenolphthalein test, arrested the respondent, and then proceeded further according to law. After completion of the investigation, the Dy.S.P. submitted final report before the Special Court.

(2.) RESPONDENT (accused) pleaded not guilty to the charge framed against him by the Special Court, and he claimed to be tried. The prosecution examined ten witnesses including the complainant Thomas, and the Dy.S.P. Padmanabhan, who arranged the trap on complaint, and also two other beneficiaries under the Mythri Housing Scheme. When examined under Section 313 Cr.P.C. also, the accused denied all incriminating circumstances and maintained a definite defence that he had not in fact demanded any amount from Thomas or anybody else, that a cover containing some currency was in fact thrust into his pocket by Thomas, that Thomas made complaint at the instance of one Peter, and before he could do anything with the cover thrust into his pocket by Thomas, he was taken into custody by the police. Thus, the accused maintained a definite stand that he had not demanded any amount for any favour, from Thomas, and that he had not in fact received or accepted any amount from the complainant Thomas. All throughout the trial, the accused maintained the defence that this is a false prosecution brought at the instance of one Peter. Ext. D1 document was marked on the side of the accused in defence. The prosecution proved Exts. P1 to P35 documents and also MO1 to MO5 properties. These properties include the currency of Rs. 500/ - involved in this case, and also the shirt of the accused seized on the spot, tainted with phenolphthalein colour.

(3.) THE learned Public Prosecutor in charge of the case submitted before this Court, when this appeal came up for hearing, that recovery of phenolphthalein smeared currency stands well proved, but the learned trial Judge wrongly acquitted the accused on an erroneous appreciation of the evidence given by the witnesses, including the detecting officer. In fact, recovery of MO4 currency is proved by the Dy.S.P., examined as PW9. The defacto complainant Thomas is PW1, and the other two witnesses examined as material witnesses by the prosecution are PW6 and PW7. The evidence of the other witnesses, than PW1, PW6, PW7 and PW9, does not contain any material to prove the prosecution case. PW6 and PW7, two other beneficiaries under the Housing Scheme, brought by the prosecution to speak that the accused had made some demand from them also, did not in any manner support the prosecution. To the surprise of the prosecution, these two witnesses gave definite evidence that they have received all the required certificates from the accused, the accused had not demanded any amount from them at any time, and that they had not given any amount to the Village Officer at any time. Thus, these two material witnesses brought by the prosecution did not, in any manner, support the prosecution. Then what remains is the evidence of the complainant, examined as PW1, and that of the Dy.S.P. who detected the offence, examined as PW9. It was submitted by the learned counsel for the respondent that even assuming that the story of seizure told by the Dy.S.P. is acceptable a conviction is not possible in this case in the absence of any evidence to prove payment of bribe or acceptance of bribe. The defence pleaded by the accused throughout the trial is that the complaint was in fact made at the instance of one Peter, and that a cover containing currency was in fact thrust into his pocket by the complainant as instructed by Peter. Such a case pleaded by the defence stands probabilised by the evidence of the complainant himself.