SOLOMAN S/O. JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED Nos. 1 and 2 in C.C. No. 47 of 2001 on the file of the Enquiry Commissioner and Special Judge, Kozhikode (VC 10 of 2000 of V.A.C.B., Wayanad) are the appellants. They faced trial for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the P.C. Act") read with Section 34 I.P.C.

(2.) THE prosecution allegation against accused Nos. 1 and 2 was that while they were working as Overseer in the Minor Irrigation Sub -Division, Sulthan Bathery and Assistant Engineer, Karapuzha Irrigation Project, Sulthan Bathery respectively, they demanded an amount of Rs. 1000/ - as illegal gratification on 24.7.2000 at about 10.30 a.m. from PW.1 who was the convener of the People's Programme of Nenmeni Grama Panchayat for the preparation of the final bill in order to get the payment for the construction of a kitchen for the Anganvadi building at Thekkankolly. It was the further case of the prosecution that on 26.7.2000 at about 6.45 p.m. at the quarters of the second accused, the first accused accepted an amount of Rs. 1000/ - from PW.1 and both the accused shared the said amount. To prove the above charges against the accused, the prosecution examined PWs.1 to 9 and produced Exts.P1 to P15 as well as MOs.1 to 13. On the side of the defence DW.1 was examined and Exts.D1 to D5(a) were produced. On closing the prosecution evidence, the accused were questioned under Section 13 Cr.P.C. Denying the prosecution allegations, both the accused filed their respective statements. The first accused stated that he and the second accused were working in the Irrigation Department and not under the Panchayat and that the Irrigation Department was not meeting their travelling expenses in connection with the work of supervision and check measurement at the work site where the kitchen was being constructed. He further stated that when he enquired about the expenses, he was told by the Secretary of the Panchayat that the expenses shall be met by PW.1 from the amount sanctioned for the construction work. It is further stated in the statement that the first accused incurred an expense of Rs. 600/ - and the second accused incurred an expense of Rs. 400/ - in connection with their visit to the work site and that PW.1 had agreed to pay the amount. He further stated that on the basis of the agreement, he accepted Rs. 1000/ - from PW.1 and had taken Rs. 600/ - as his share and gave Rs. 400/ - to the second accused. The second accused, on the other hand, stated he had not accepted any bribe from PW.1, but had received an amount of Rs. 400/ - from the first accused who had borrowed the said amount from him. However, the trial court, relied on the evidence adduced by the prosecution and found both the accused guilty under Section 7 of the P.C. Act, convicted them thereunder and sentenced them to undergo rigorous imprisonment fort three years each and to pay a fine of Rs. 10,000/ - each and in default of payment of fine, to undergo simple imprisonment for a further period of one year each. The accused were also allowed the benefit under Section 428 Cr.P.C. The above conviction and sentence are challenged in these appeals.

(3.) SRI . M.K. Damodaran, learned senior counsel appearing for the appellant in Cr. Appeal No. 1658 of 2005 and Sri. M. Asokan, learned Counsel appearing for the appellant in Crl. Appeal No. 1578 of 2005 have raised the following contentions in challenging the judgment of the trial court: (i) the trial court committed serious error in accepting the case of the prosecution as the evidence of PWs.1, 3 and 8 would not show that the appellants have committed any offence as alleged by the prosecution, (ii) the evidence of PWs.1 and 3 would not show that the appellants had demanded bribe as the case set up by the appellants would show that the amount received by them was in connection with the travelling expenses incurred by them for supervision and check measure at the work site and that as per the provisions of the People's Programme scheme itself, the appellants are entitled to such expenses, (iii) the evidence of PW.2 would show that the appellants were not entitled to any get any benefit from their department for the work entrusted to them under the Panchayat, they were not entitled to use the departmental vehicle and Ext.D4(b) would show that the expenses for supervision, measurements and preparation of bills shall be met from the total estimate amount, calculated at the rate of 1.5%, subject to a minimum of Rs. 100/ - and a maximum of Rs. 1000/ -. (iv) the trial court went wrong in accepting the evidence of PWs.3 and 8 regarding recovery of MO.1 and Mo.2 series of currency notes as the evidence of PW.1 itself shows that there was no demand for bribe and he had deviated from his earlier statement given to PW.8 and (v) mere recovery of currency notes from the accused will not prove them guilty of the offence as the explanation offered by the appellants would show that they were entitled to the amount towards travelling expenses and if so, the presumption under Section 20 of the P.C. Act cannot be drawn against the appellants.