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CASE NO.: Appeal (crl.)  1122 of 2006

PETITIONER: B. Noha

RESPONDENT: State of Kerala and Anr

DATE OF JUDGMENT: 06/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) No. 952 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.  

       Appellant calls in question legality of the judgment  rendered by a learned Single Judge of the Kerala High Court  upholding the conviction of the appellant for offences  punishable under Section 7 and 13(1)(d) read with Section  13(2) of the Prevention of Corruption Act, 1988 (in short the  ’Act’)

       The Enquiry Commissioner and the Special Judge,  Thiruvananthapuram found the appellant guilty of the  offences punishable as aforesaid, convicted him thereunder  and sentenced him to undergo rigorous imprisonment for a  period of 3 years and to pay a fine of Rs.20,000/- with default  stipulation in respect of the offence punishable under Section  7 of the Act. Further, the appellant was sentenced to undergo  rigorous imprisonment for a period of 3 years for the offence  punishable under Section 13(1)(d) read with Section 13(2) of  the Act. The substantive sentences were directed to run  concurrently.

       Background facts in a nutshell are as follows:

The prosecution case against the appellant was that  while the appellant was working as Health Inspector Grade-II,  at Thirnmala Circle, Thiruvananthapuram City Corporation,  he demanded and accepted an amount of Rs.l00/- from PW-1  on 27.11.1997 and a further amount of Rs.100/- on 6.1.1998  as illegal gratification and thereby committed the above  offences. Earlier the officials of the Municipal Corporation  including the  accused removed the push cart belonging to  PW-1 along with the articles to the office of the Corporation  and for release of the articles and for sending the report to the  Corporation, the accused demanded and accepted a sum of  Rs.200/- from PW-1. For the release of the push cart, the  accused demanded a further sum of Rs.200/- from PW-1 on  29.1.1998 besides the fine imposed by the Health Officer and  PW-1 then went to the office of Deputy Superintendent of  Police, VACB Unit PW-9, and gave Ext.P1 first information  statement on the basis of which Crime No.VC.2/98 was  registered and a trap was arranged. Before the Trial Court, the

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prosecution examined PWs.1 to 9 and produced Exts.P1 to  P13 and MOS.1 to 6. DW1 was examined on the side of the  defence, to prove innocence of accused, as pleaded by him. On  closure of the prosecution evidence, the accused was  questioned under Section 313 of the Code of Criminal  Procedure, 1973 (in short ’Cr.P.C.’) and he denied the charge  levelled against him. He also filed a detailed statement in  which he stated that he never received any amount from PW-1  and that PW-1 came to his office and forcibly put the money  into his pocket. On the basis of the evidence adduced by the  prosecution, the Trial Court found the appellant guilty of the  offences punishable under Sections 7 and 13(1)(d) read with  section 13(2) of the  Act, convicted him thereunder and  sentenced him to undergo rigorous imprisonment for a period  of three years and to pay a fine of Rs.20,000/-  for the offence  under Section 7 of the  Act. In default of payment of fine, he  was sentenced to undergo rigorous imprisonment for a further  period of one year. He was further sentenced to undergo  rigorous imprisonment for a period of three years for the  offence under section 13(1)(d) read with section 13(2) of the  Act. The substantive sentences were ordered to run  concurrently.  

       Trial Court mainly placed reliance on the evidence of  PWs.1 and 2 to hold the accused guilty. It is to be noted that  PW-3 did not support the prosecution version.  The trial Court  found that the evidence of PWs 1 and 2 is credible and cogent  and, therefore, the prosecution has brought out the  accusations made against the appellant. Before the High Court  the trial Court’s judgment was primarily attacked on the  ground that the evidence of PWs 1 and 2 should not have been  accepted as they were interested witnesses, more particularly  when PW-3 did not support the prosecution version. The High  Court did not find any substance in the submissions and as  noted above confirmed the conviction and sentence.  

       In support of the appeal, learned counsel for the  appellant submitted that the accused had clearly established  the improbabilities in the evidence of PWs 1 and 2 and,  therefore, it was submitted that the trial Court and the High  Court ought not to have convicted the appellant. Additionally,  it was submitted that considering the nature of the  accusations the sentences imposed are harsh.  

       Learned counsel for the respondents on the other hand  supported the judgment of the trial Court as confirmed by the  High Court. Both the trial Court and the High Court have  elaborately dealt with the evidence of PWs 1 and 2 to hold that  the accused was guilty.  

Though the evidence of PW-1 was levelled as the evidence  of interested witness, there is no substance in it.  There was  no basis for PW-1 to falsely implicate the accused. On the  other hand, the evidence on record clearly shows as to why the  illegal gratification was demanded and accepted by the  appellant. The evidence of PW-1, therefore, does not suffer  from any infirmity to warrant interference.

Added to that is the evidence of PW-2 which is also clear,  credible and cogent.  

The evidence shows that when PW-1 told the accused  that he had brought the money as directed by the accused, the  accused asked PW-1 to take cut and give the same to him.  When it is proved that there was voluntary and conscious

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acceptance of the money, there is no further burden cast on  the prosecution to prove by direct evidence, the demand or  motive. It has only to be deduced from the facts and  circumstances obtained in the particular case.  It was held by  this Court in Madhukar Bhaskarrao Joshi v. State of  Maharashtra (2000 (8) SCC 571) as follows:

"The premise to be established on the  facts for drawing the presumption is that there  was payment or acceptance of gratification.  Once the said premise is established the  inference to be drawn is that the said  gratification was accepted ’as motive or reward’  for doing or forbearing to do any official act. So  the word ’gratification’ need not be stretched to  mean reward because reward is the outcome of  the presumption which the court has to draw  on the factual premises that there was  payment of gratification. This will again be  fortified by looking at the collocation of two  expressions adjacent to each other like  ’gratification or any valuable thing’. If  acceptance of any valuable thing can help to  draw the presumption that it was accepted as  motive or reward for doing or forbearing to do  an official act, the word ’gratification’ must be  treated in the context to mean any payment for  giving satisfaction to the public servant who  received it." This decision was followed by this Court in M. Narsinga  Rao v. State of A.P. (2001 (1) SCC 691).  There is no case of the  accused that the said amount was received by him as the  amount which he was legally entitled to receive or collect from  PW-1. It was held in the decision in State of A.P.  v.  Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that  when amount is found to have been passed to the public  servant the burden is on public servant to establish that it was  not by way of illegal gratification.  That burden was not  discharged by the accused.

       Coming to the question of sentence, it is to be noted that  the minimum sentence for offence relatable to Section 7 is six  months while that relatable to Section 13(1)(d) is one year.  Considering the nature of the accusations, it would be  appropriate to reduce the sentence to the minimum prescribed  under the statute.  In other words it shall be six months and  one year respectively to run concurrently. The amount of fine  is also reduced to Rs.10,000/- with default stipulation of six  months rigorous imprisonment.  

       The appeal is dismissed except to the extent of  modification of sentence as noted above.