M K HARSBAN Vs. STATE OF KERALA

JUDGEMENT

(1.) While working as Executive Engineer, Public Works Department (B and R), Trichur, the appellant got involved in an offence punishable under section 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act read with section 5(1)(d) thereof. He was charge sheeted by the Vigilance Police and tried before the Special Judge, Trichur in C C. No. 38 of 1986. The case ended in conviction for both the offences. Under each count, he was sentenced to undergo rigorous imprisonment for one year. The sentences were permitted to be suffered concurrently. For the offence under the Prevention of Corruption Act, he was also sentenced to pay a fine of Rs. 500/- with a default sentence of simple imprisonment for one month. He is challenging the convictions and sentences.

(2.) P.W. 5 is the owner of Dwaraka theatre at Kodakara. P.Ws. 1 and 7 are his sons. P.W. 1 is also the Manager of the theatre. Term of the licence for the theatre issued by the Panchayat was due to expire on 25.6.1983. As early as on 22.5.1983, P.W. 5 submitted Ext. P 4 renewal application. Renewal of licence could be had only if fitness certificate for the building is issued by the appellant. Appellant had to do so on the basis of the report from the Assistant Executive Engineer (D.W. 1) subordinate to him. Report of D.W. 1 was personally taken by P.W. 1 to the appellant on 22.6.1983. He wanted the licence to be got renewed on or before 25.6.1983. Appellant did not oblige. P.W. 1 returned and sent P.W. 7 on 25.6.1983. He met the appellant without success twice at 3 and 5 p.m. He returned and reported to P.W. 1. 26.6.1983 was Sunday. P.W. 1 met the appellant at 12.30 p.m. on 27.6.1983 at his office. He was told that this sort of meeting will not help and there is a mamool. When asked what it is, appellant explained that it is a customary payment of Rs. 200/-. P.W. 1 went out agreeing to come back with the amount.

(3.) After an initial hesitation, he decided to inform the Vigilance Police. Information was given to P.W. 11 at 3 p.m. A case was registered. After observing the usual formalities, a trap was arranged. P. W. 2 Sasidharan Nair and one Kumaradas, two Gazetted Officers, were arranged as witnesses for the trap. P.W. 3 was the police constable arranged to go along with P.W. 1 and wait outside. At about 4.15 p.m, P.W. 1 went inside appellant's office room. He was there. P.W. 1 informed his readiness. As directed by the appellant, he put the two notes of hundred rupee denomination inside the drawer of the table. He was asked to wait outside. Appellant called the peon to bring the file. P. W. 1 came out and gave the arranged singal. P.W. 3 relayed the same. P.W. 11 and party suddenly came Appellant was asked by P.W. 11 to take out the notes received from P.W. 11 after revealing his identity. He denied having received amount. Acquaintance with P.W. 1 was even denied. As directed by P.W. 11, the drawer was opened and the two notes taken out by P.W. 2. That was also after observing the usual formalities and tests. The notes were found to be the same as those produced by P.W. 1 and given back to him after smearing with phenolphthalein powder. This is the prosecution version of the incident spoken to by P.Ws. 1, 2, 3, 8 and 11. P.W. 11 is the Deputy Superintendent of Police, who arranged and conducted the trap, and P.W. 8 is the Circle Inspector, who assisted him.