P ABDULLAKOYA Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein was a Police Constable attached to the Areacode Police Station in Malappuram District in JuneJuly 2002. He faced prosecution before the learned Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C. No.79/2008 on the allegation that on 22.7.2002 he accepted an amount of RS. 2,000/- from one Moideenkutty for himself and for the Sub Inspector, as illegal gratification for facilitating illegal transport of river sand within the police station limits. The said Moideenkutty made complaint before the Deputy Superintendent of Police, VACB, Malappuram at about 9 am., on 22.7.2002, alleging persistent demand made by the appellant for bribe, and on the said complaint the VACB registered the present crime. The amount of Rs. 2,000/- brought by the complainant was received as per a mahazar, and after demonstrating the required phenolphthalein test to the complainant and the trap witnesses, the complainant was instructed to approach the appellant and the Sub Inspector of the police station, and make payment of bribe on demand. Though the Sub Inspector was also targetted, he did not fall in the trap because he happened to be away from the police station on 22.7.2002, but the amount was accepted by the appellant at the Police Station while he was doing sentry duty there, and he accepted the amount for himself and on behalf of the Sub Inspector. On getting the pre arranged signal, the vigilance team led by the Deputy Superintendent of Police, who were waiting outside, rushed to the Police Station, seized the phenolphthalein tainted currency from the possession of the accused and arrested him on the spot. After investigation, the VACB submitted final report in court. Though the crime was initially registered against the Sub Inspector also as second accused, the VACB submitted final report only against the Police Constable.

(2.) The appellant appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 7 and 13(2) r/w 13(i)(d) of the Prevention of Corruption Act, 1988 (for short 'the P.C Act'). The prosecution examined 13 witnesses including the complainant and the trap witness, and also proved Exts.P1 to P33 documents. MO1 to MO15 properties including the phenolphthalein tainted currency seized from the possession of the accused, were also identified during trial. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that he happened to accept the amount of Rs. 2,000/- brought by the complainant only because the complainant made him believe that it was the amount borrowed by him from the Sub Inspector. He accepted it due to the innocent appearance of the complainant who told him that it was the money he owed to the Sub Inspector, and he also feared that he would be scolded by the Sub Inspector if he did not accept it on his behalf. Thus, the accused practically admitted acceptance of the phenolphthalein tainted currency of Rs. 2,000/-, subject to the contention that it was not accepted as bribe. Thus, as regards acceptance of phenolphthalein tainted currency much discussion is not required. However, it will constitute acceptance as meant under the law only if demand is also properly and legally proved. If demand is not properly proved, or if there is no sufficient and satisfactory evidence to prove the alleged demand, the court will have to accept the explanation given by the accused for acceptance. So the material question is whether demand stands well proved in this case, and also whether the story told by the accused as an explanation for acceptance can be, to any extent, believed.

(3.) During trial the accused examined himself as DW1 with the permission of the court under Section 315 Cr.P.C. Exts.D1 to D4 were also marked on his side in defence. On an appreciation of the entire evidence including the evidence given by the accused as DW1 the trial court found the accused guilty of having accepted illegal gratification. On conviction he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- under Section 7 of the P.C Act 1988, and to undergo another term of rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- under Section 13(2) r/w 13(1)(d) of the P.C Act by judgment dated 18.10.2013. Aggrieved by the said judgment of conviction, the accused has come up in appeal.