K. VASUDEV ACHARYA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant herein was Special Grade Secretary of Mangalpady Grama Panchayat in Kasaragod District, in March, 2000. The VACB, Kasaragod registered a crime against him on the complaint of one Ismail, that the appellant demanded and accepted an amount of Rs. 500/ - as illegal gratification for making entries in the Building Tax Assessment Register of the Panchayat regarding his sister's newly constructed house. The house was constructed in 1999, and the standing committee had also decided to assign a number to the newly constructed house. Thereafter, an ownership certificate was also issued by the appellant herein on payment of the required building tax. It is alleged that when the complainant approached the appellant in April, 2001 for remitting the house tax, the appellant realized that the house number was not entered in the assessment register. The appellant told the complainant that building tax can be acceptable only after the house number is entered in the register, and for the said purpose, he demanded an amount of Rs. 500/ -. The demand was first made on 02.04.2001, when the complainant came to remit the house tax. When the appellant repeated the demand, the complainant approached the Dy.S.P., Vigilance and Anti -Corruption Bureau, Kasaragod, and lodged a complaint. The Vigilance arranged a trap, received the amount of Rs. 500/ - brought by the complainant for trap, applied phenolphthalein on the currency, demonstrated phenolphthalein test to the complainant and other witnesses, handed over the currency to the complainant, and instructed him to make payment to the appellant, if demanded. Accordingly, the complainant went to the office of the appellant, and when the appellant made demand for money again, for entering the building number in the Assessment Register, the complainant made payment at about 3.45 p.m. on 25.04.2001. On getting signal, the Vigilance team led by the Dy.S.P. reached there, seized the phenolphthalein tainted currency from the possession of the appellant, confirmed the acceptance by conducting phenolphthalein test, and arrested the appellant on the spot.

(2.) AFTER investigation, the VACB submitted final report before the learned Enquiry Commissioner, Special Judge, Vigilance, Kozhikode under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the P.C. Act'). After complying with the procedure prescribed under the law, the learned Trial Judge framed charge against the accused under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act, to which the accused pleaded not guilty. The prosecution examined seven witnesses including the complainant and the detecting officer, and also marked Exts.P1 to P18 documents. MO1 to MO5 properties were also identified and marked on the side of the prosecution. When examined under Section 313 Cr.P.C., the accused maintained a defence that he had accepted an amount of Rs. 670/ - from the complainant as building tax in respect of the house building of his sister and also his brother, Shahul Hameed. An ownership certificate issued earlier was cancelled on detection of some irregularities in the procedure. The complainant was aggrieved by this, and so, he arranged a vicious trap against him with the assistance of the police, and used the building tax amount for the trap. The accused examined three witnesses in defence, and also marked Exts.D1 to D3 documents. On an appreciation of the evidence, the learned trial Judge found that the accused had accepted an amount of Rs. 500/ - from the complainant, Ismail, as illegal gratification for entering the house number of his sister's newly constructed house in the Building Tax Assessment Register. Accordingly, he was convicted under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act, and sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs. 2,000/ - each under the two penal sections, by judgment dated 28.03.2007 in C.C. No. 11/2002. Aggrieved by the conviction and sentence, the accused has come up in appeal.

(3.) OF the seven witnesses examined by the prosecution, PW1 is the complainant Ismail, PW2 is the witness arranged by the Vigilance for the trap, PW6 is the Dy.S.P., who detected the offence, and PW7 is the Inspector of Vigilance, who conducted investigation. PW3 is the Junior Superintendent of the Mangalpady Grama Panchayat , who produced some documents before PW7. PW4 is the Assistant Executive Engineer of KSEB, examined to prove that the complainant's sister had applied for electricity service connection, and she was instructed to produce ownership certificate. PW5 is the LD. Clerk of the Mangalpady Grama Panchayat , examined to prove that he had inspected the newly constructed house of the complainant's sister, he had given report to the standing committee, and the standing committee had decided to assign a number to the newly constructed building, but the house number was omitted to be entered in the building tax assessment register.