K.K. THAVARAJ Vs. THE STATE OF KERALA

JUDGEMENT

(1.) THE appellant herein was Special Grade Secretary of the Eriyad Grama Pamchayath in Thrissur District in October, 2001. On the allegation that he received an amount of Rs. 500/ - from one Kunhumuhammed as a reward for assigning a number to his newly constructed house in the Panchayath area, the appellant faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Thrissur. Complaint was made by Kunhumuhammed on 16.10.2001 before the Deputy Superintendent of Police, Vigilance and Anti -Corruption Bureau (VCAB), Cochin. His complaint is that when he approached the accused on 15.10.2001 with request to assign a number to his house, the accused demanded Rs. 500/ -, and asked the complainant to come with the amount on the next day. As Kunhumuhammed was not inclined to give bribe, he approached the Vigilance on 16.10.2001, and made a complaint. On the said complaint, the VACB registered a crime, and arranged a trap. The amount of Rs. 500/ - brought by the complainant (5 x Rs. 100/ - currency) was received by the Deputy Superintendent of Police as per a mahazar, phenolphthalein was applied on all the currency notes, and after demonstrating the required phenolphthalein test, Kunhumuhammed was instructed to meet the accused at his office, and make payment of the amount. At about 12 noon, the complainant proceeded to the Panchayath Office, followed by the Deputy Superintendent of Police and his team, including the two trap witnesses arranged by him. The complainant took the accused in an autorickshaw to the site, and reached there at about 2.30 p.m. As instructed by the Deputy Superintendent of Police, the complainant made payment inside the newly constructed house, when the Secretary again made demand. On getting signal, the Vigilance team rushed to the said house, seized the phenolphthalein tainted currency, and arrested the Panchayath Secretary on the spot. After investigation, the Vigilance submitted final report before the trial court.

(2.) THE accused entered appearance before the trial court, and pleaded not guilty to charge framed against him under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act PC Act). Thus he claimed to be tried. The prosecution examined eight witnesses in the trial court, and marked Exts. P1 to P15 documents. The MO1 to MO8 properties including the tainted currency were also identified, and marked during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating the circumstances, and contended that he had not demanded, or received anything illegal from the complainant. Though opportunity was granted by the trial court, the accused did not adduce any evidence in defence. However, Exts. D1 to D6 documents were marked on his side. The person who made complaint was not examined as a witness during trial. However, the learned trial judge accepted the evidence regarding the recovery of tainted money, and on the basis of the said evidence, the learned trial judge found the accused guilty. On conviction, the accused was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs. 25,000/ - under Section 7 of the PC Act. Under Section 13(2) read with Section 13(1)(d) of the PC Act also, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs. 25,000/ -. Aggrieved by the said judgment of conviction dated 31.10.2006 in C.C. No. 30 of 2002, the accused has come up in appeal.

(3.) AS already stated, this is a case where the complainant was not examined by the prosecution. Crime in this case was registered by the VACB against the accused on a definite complaint made by one Kunhumuhammed. The prosecution has no satisfactory explanation, why the complainant was not examined, and the prosecution has also not adduced any other evidence to prove the alleged demand and acceptance. Of the eight witnesses examined by the prosecution, P.W. 1 is the trap witness, and PW8 is the Deputy Superintendent of Police (Vigilance), who registered the crime, investigated it, and submitted final report. PW2 is only the person who took the complainant, and the accused to the site in his autorickshaw. He is not a witness to the alleged demand or acceptance. PW3 to PW6 are the Panchayath Officials, and the Panchayath President, examined to prove that the accused was on duty at the relevant time as Special Grade Secretary of the Eriyad Grama Panchayath. These aspects are not in dispute.