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Judgment
The second accused in CC No.1/2016 on the files of the Special CBI-III Court, Ernakulam has filed this appeal challenging judgment dated 12.08.2024, rendered in the above case.
Heard the learned counsel for the appellant/2nd accused and the learned Special Public Prosecutor appearing for the CBI, in detail. Perused the verdict impugned and the evidence available.
In this case, the prosecution alleged commission of offences punishable under Sections 7, 13(1)(a) and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988 (for short 'the PC Act'), by the accused Nos.1 and 2.
The prosecution case is that accused Nos. 1 and 2 while working as Inspector and Havildar respectively in the Air Customs Department in Calicut International Airport and as such as public servants, at 6.00 am on 25.12.2014, demanded and accepted illegal gratification from PW4, Thajudheen Chirakkara, who had arrived in Calicut International Airport from Sharjah by Air India Flight bearing No. AI 998, to avoid customs duty for a 32 inch LED Television (Thoshiba brand) bought by him. The case of the prosecution is that after collecting the baggages, PW4 had approached the first accused and enquired about the details of the duty to be paid to the T.V. Then he was informed by the first accused that he had to pay 250 Dirhams and instructed him to go and meet the second accused and pay the said amount. Then PW4 met the second accused and in turn, he also demanded to pay 250 Dirhams to him, for releasing the TV. Further the second accused threatened that, if PW4 did not pay the said amount, the TV would be seized. In turn PW4 informed the second accused that he was having only 150 Dirhams with him, then the second accused asked him to keep 150 Dirhams in his passport and to hand over the same to him. As directed by the second accused, PW4 kept 150 Dirhams (five notes of ten denomination and one note of 100 denomination) in his passport and handed over the same along with the passport to the second accused. The second accused after taking out the Dirhams from the passport, returned the passport to PW4 and released the LED TV. No receipt was issued in respect of receipt of aforesaid money.
The learned Special Judge framed charge for the said offences and recorded evidence. During trial, PW1 to PW21 were examined, Exts.P1 to P49 and MO1 to MO10 series were marked on the side of the prosecution. On the side of the defence, Exts.D1 to D3 documents were tendered in evidence.
On appreciation of evidence, the learned Special Judge found that the 1st accused did not commit any offences and accordingly, he was acquitted. At the same time, the learned Special Judge found that the 2nd accused/appellant herein committed offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act. Accordingly, the 2nd accused was convicted for the said offence and sentenced as under:
“i.A1 is acquitted u/s. 248(1) Cr.P.C.
ii.A2 is acquitted u/s. 248(1) Cr.P.C for the offence punishable u/s. 7, 13(2) r/w.13(1)(a) of the PC Act.
iii.A2 is sentenced to suffer simple imprisonment for four years and to pay fine of ₹ 10,000/- (Rupees Ten Thousand only) and in default of payment of fine, to suffer simple imprisonment for six months u/s. 13(2) r/w.13(1) (d) (i) of the PC Act.
iv.Set off is allowed u/s. 428 Cr.P.C in respect of the detention already undergone by the second accused during the course of investigation from 25.12.2014 to 30.12.2014.”
The learned counsel for the appellant submitted that, here, as regards the demand and acceptance of illegal gratification by the 2nd accused, the prosecution relied on the evidence of PW4, who lodged the complaint, which led to registration of this crime. Apart from the evidence of PW4, recovery of MO2 series i.e., 150 Dubai Dirhams alleged to be demanded and accepted as bribe by the 2nd accused also has given much emphasis by the prosecution. According to the learned counsel, the recovery under Section 27 of the Evidence Act as spoken by PW20, the Investigating Officer to find commission of the above offence by the appellant is in the midst of doubt. It is submitted that going through the evidence of PW2, who was examined by the prosecution to prove the recovery of MO2 series, the same would suggest that the recovery was before 8 am. But according to PW20, FIR was registered at 9.30 am and the accused was arrested at 10.15 am. Then the 2nd accused had given Ext.P44 disclosure statement and pursuant thereof the recovery was effected. Thus the time of recovery of MO2 series is in serious doubt and the same would make the recovery in doubt. It is argued further that, the evidence of PW2 would not support the prosecution regarding the recovery spoken by PW20, the recovery evidence could not be relied on to corroborate the version of PW4. It is pointed out by the learned counsel for the 2nd accused/appellant further that, the evidence of PW4 is not believable, to be acted upon, as he did not state anything about the 1st accused or identified the 1st accused at the dock when he had given evidence before the Court, even though, PW1 had lodged Ext.P1 complaint before the CBI alleging that the 1st accused initially demanded 250 dirhams from him for the release of his LED TV. Another argument at the instance of the appellant is that, in Ext.P8, the identification memo of the 2nd accused, it has been stated that at the time when he was identified, he was in kaki uniform. But the evidence as that of PW1, PW2 and PW20 would show that before his identification at 9.45 am as stated in Ext.P8, he was in civil address. Therefore, the identification also in doubt.
Lastly, it is submitted by the learned counsel for the 2nd accused/appellant that in this case, the learned Special Judge acquitted the appellant/2nd accused finding that no offence under Section 7 of the PC Act was committed by him and therefore, the Special Court went wrong in finding commission of offence under Section 13(1)(d) r/w Section 13(2) of the PC Act by the appellant since ingredients for the offence under Section 13(1)(d) are pari materia, viz., demand and acceptance. The learned counsel has placed decision of the Apex Court reported in [2015 10 SCC 152] P.Satyanarayana Murthy v. The Dist.Inspector of Police and Another, with reference to paragraph 21 wherein the Apex Court held that the proof of demand of illegal gratification is the gravamen of the offences under Sections 7 and 13(1) (d) (i)&(ii) of the PC Act and in absence thereof, the charge would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would, thus, not sufficient to bring home the offences under these two sections of the PC Act. Another decision of the Apex Court reported in [2014 Supp 3 KLT 46] B.Jayaraj v. State of A.P also has been given emphasize by the learned counsel for the appellant to apprise the same point. He has also placed decision of the Apex Court reported in [2003 AIR (SC) (Crl.) 631] Neeraj Dutta v. State (Govt. of N.C.T. Of Delhi) to buttress his contention in this regard.
Whereas, Adv. Aditya Narayanan, representing the learned Special Public Prosecutor, argued the case for and on behalf of the CBI submitted that the demand and acceptance of illegal gratification by the appellant herein is proved by the evidence of PW4 to find the ingredients for the offence punishable under Section 13(1) (d) r/w 13(2) of the PC Act. According to him, in the instant case, even though, the learned Special Judge found that the appellant did not commit offence under Section 7 of the PC Act, the said finding was rendered not for want of proof of ingredients for the said offences ,viz., demand and acceptance. It is argued that, the learned Special Judge did so, on the ground that the LED TV in question was a used one, and for which no customs duty to be paid. Thus, the learned Special Judge held that the 2nd accused did not receive any reward for doing or for bearing to do any official act and in such a view of the matter the appellant was acquitted for the offence punishable under Section 7 of the PC Act. It is submitted that even though the finding is wrong, the same is not a ground to record acquittal of the 2nd accused/appellant in the instant case, where the prosecution established ingredients for the offence punishable under Section 13(1) (d) r/w 13(2) of the PC Act. He also pointed out that as regards the contention raised by the learned counsel for the 2nd accused/appellant that the recovery evidence given by PW20 regarding its time need not be found at variance from the evidence of PW2, since PW2 did not state anything in this regard specifically, in a case were PW2, in fact, turned hostile to the prosecution.
According to the learned Special Public Prosecutor as held in the decisions reported in [2026 KHC 6130] Rohit Jangde v. State of Chhattisgarh and [2014 KHC 4245] Dharam Deo Yadav v. State of U.P., arrest of the accused is not necessary to effect recovery under Section 27 of the Evidence Act. He has given emphasis to paragraph 20 of Dharam Deo Yadav’s case, which is extracted as under:
“20.S.27 of the Evidence Act explains how much of information received from the accused may be proved. S.27 reads as follows:
27.How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The expression "custody" which appears in S.27 did not mean formal custody, which includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time when the accused gave the Information, the accused was, for all practical purposes, in the custody of the police. This Court in State of Andhra Pradesh v. Gangula Satya Murthy, 1997 (1) SCC 272 held that if the accused is within the ken of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance. Consequently, so much of information given by the accused in "custody", in consequence of which a fact is discovered, is admissible in evidence, whether such information amounts to a confession or not. Reference may also be made to the Judgment of this Court in A. N. Venkatesh v. State of Karnataka, 2005 (7) SCC 714. In Sandeep v. State of Uttar Pradesh, 2012 (6) SCC 107, this Court held that it is quite common that based on admissible portion of the statement of the accused, whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the Court as to nature of recoveries and as to how they came into the possession or for planting the same at the place from where they were recovered. Reference can also be made to the Judgment of this Court in State of Maharashtra v. Suresh, 2000 (1) SCC 471, in support of the principle. Assuming that the recovery of skeleton was not in terms of S.27 of the Evidence Act, on the premise that the accused was not in the custody of the police by the time he made the statement, the statement so made by him would be admissible as "conduct" under S.8 of the Evidence Act. In the instant case, there is absolutely no explanation by the accused as to how the skeleton of Diana was concealed in his house, especially when the statement made by him to PW 14 is admissible in evidence.”
In the decision in Rohit Jangde's case (supra) paragraph 13, the Apex Court held as under:
“13.The position is somewhat clarified in Dhararn Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, which dealt with the murder of a foreign national by a tourist guide. The I.O having received information that the guide was arriving by a train rushed to the railway station and intercepted him in the platform. On interrogation it was confessed by the accused that he had murdered the victim and the dead body was buried in his house. The I.O thus was led to the house of the accused from where the accused dug up up the skeleton which later was proved to be of the victim. It was held that the expression 'custody' appearing in S.27 does not mean formal custody and includes any kind of surveillance, restriction or restraint by the police. It was held, relying on State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272 that even if there is no formal arrest made, if a person is within the ken of surveillance of the police, during which his movements are restricted, then it can be regarded as custodial surveillance. It was also held by this Court that even if the recovery of the skeleton was not in terms of S.27, on the premise that the accused was not in the custody of the police while the statement was made, it would be admissible as 'conduct under S.8 of the Act'. In that case there was absolutely no explanation by the accused for the skeleton found buried in his own house.”
Now the points arises for consideration are:
Whether the Special Court is right in holding that the 2nd accused/appellant committed offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act?
Whether the impugned verdict requires interference?
Order to be passed.
Points i to iii
In this case, the direct evidence to prove demand of 250 Dirhams by the 2nd accused/appellant initially and subsequent demand and acceptance of 150 Dirhams from PW4 by the second accused, for the release of 32 inch LED TV brought by PW4 belonged to his relative, is that of PW4 Thajudheen Chirakkara, who lodged Ext.P14 complaint in this regard. According to him, he had reached Kozhikode Airport from Sharjah in December, 2014 and he had brought a used 32 inch LED TV belonged to his relative, Abdul Aziz along with his luggage. He was under the firm belief that no customs duty to be paid for the used LED TV and for enquiring about the same, he had approached a Guard on duty. At that time, the Guard (appellant/2nd accused) informed him that the TV could not be taken outside. He then demanded 250 Dirhams for the release of the TV, PW4 was having only 150 Dirhams with him and then the appellant was satisfied with the same. Accordingly, he had given 150 Dirhams to the aforesaid Guard (appellant/2nd accused) by keeping the same inside his passport, the Guard (2nd accused) had accepted the aforesaid Dirhams and returned the passport. According to him, he had handed over a note of 100 Dirhams and five notes of 10 Dirhams. MO2 series, (150 Dirhams) so handed over by him were identified and marked through him. PW4 deposed specifically that no receipt was issued regarding collection of aforesaid Dirhams. On exit from the gate, he met the CBI officials there and he had shared his bitter experience to the officials. As advised by the officials, he had lodged Ext.P14 complaint before the CBI officials. PW4 had identified the second accused at the dock, as the Guard, who had demanded and accepted150 Dirhams from him for the release of the TV. According to him, he had produced Ext.P15, copy of his passport, Ext.P16 series, travel ticket and other details to the CBI officials, which were seized under Ext.P17 memo. The TV was produced by him before the CBI officials and returned to him as per Ext.P12 receipt. PW4 deposed nothing against the first accused and he also had not identified 1st accused at the dock.
Supporting the evidence of PW4, PW1, PW8 and PW19 to 22 and other material witnesses given evidence. PW1, Sri.Anandkumar.J, the then Assistant Commissioner, Air Customs in the Air Cargo complex of Calicut International Airport, testified that accused Nos. 1 and 2 and others were on duty along with him from 8.00 pm on 24.12.2014 till the morning on 25.12.2014. At about 7.00 am on 25.12.2014, the CBI officials entered the baggage hall along with two witnesses and they stated that a complaint was received from one Thajudheen, a passenger. He deposed regarding seizure of currency notes and foreign liquor bottles from the bag of the second accused, Suresh (appellant). He was an attester to the surprise check proceedings prepared by the CBI officials, the copy of the same was marked through him as Ext.P1. Subsequently, Ext.P1(a), the original of the surprise check proceedings got marked on the side of the prosecution through PW2. He had also produced the details of the CC TV footage by copying the same into MO1, CD, which was seized by the CBI officials under Ext.P2, proceedings. MO1, CD was played before Court during the examination of PW1 and according to him, the presence of accused Nos.1 and 2 could be seen in the CD showing the visuals of the Airport at the relevant time. He had also produced Exts.P3 and P4, viz., attendance register and duty posting register before the CBI officials. Ext.P5 receipt book was also produced by him after obtaining Ext.P6, receipt memo.
Sri. Sarathchandrakumar, examined as PW8; testified that he had worked as the Team leader in the Flemingo Duty Free Shop, in Kozhikode International Airport. He further testified that the said shop used to purchase foreign made foreign liquor for international passengers. According to him, the foreign liquor would reach at the hands of Customs Guards and Customs officials only through the passengers and they could not directly purchase foreign made foreign liquor from the shop.
Sri. Viswanathan, the Head Havildar of Air Customs Department, Kozhikode International Airport was examined as PW9. But he had denied the suggestion that he was using the Locker No.23 and subsequently handed over the key of the said locker to the appellant. Ext.P24, the relevant portion of the statement of PW9 recorded by CBI was marked through him, since he had denied the said statement. PW10, Raju.M, the Administration Superintendent of Calicut International Airport, who, in fact, produced Ext.P25, cash declaration register before the investigating officer given evidence in this regard. PW11, Lekshmanan.D, the Havildar at the Kozhikode International Airport, did not support the prosecution case with regard to the operation of Locker No. 23 by the appellant. Ext.P26, the relevant portion of the statement of PW11 recorded by the CBI got marked through him, since he had denied this statement.
PW.12, Amarnath Kesari, the Joint Commissioner (Personnel and Vigilance), Cochin Central Excise who had issued Ext.P27, sanction order for prosecution of the appellant/second accused, deposed regarding issuance of Ext.P27. According to him, he had produced Ext.P27 before the investigating officer along with Ext.P28, forwarding letter. In fact, Ext.P27 is not at all disputed.
J. Saravanan, the Manager (Operations), Calicut International Airport, examined as PW12 deposed in support of the prosecution case. According to him, he had signed as an attester to Exts.P29 and P30 arrest and search memo in respect of the first accused and also in Exts. P31 and P32, arrest and search memo in respect of the appellant/second accused. He testified further that the accused Nos.1 and 2 were arrested at 10.15 am on 25.12.2014. PW14, A.K. Saxena, deposed that he was working as the Additional Commissioner of Customs, Calicut Airport, during the relevant period and he had produced Exts.P34 and Ext.P35, service books of the accused Nos. 1 and 2 before the investigating officer on the basis of Ext.P33, letter submitted by the CBI. Exts.P34 and P35 would show that the appellant was in service as Hawildar during the relevant time.
PW15, K.Sudheeshkumar, worked as L.D.Clerk in the Customs and Central Excise Office, Kozhikode deposed that he had produced Exts. P36 and P37, joining reports of accused Nos. 1 and 2 before the investigating officer and he identified his signature in Ext.P38, receipt memo. PW17, Raza Ali Khan, the Manager of Air India at Calicut Airport, deposed about production of Ext.P40, passenger manifest along with Ext.P41, covering letter and Ext.P42, S.65B certificate. According to him, Ext.P40, passenger manifest was pertaining to flight No. AI 998 arrived from Sharjah in Calicut on 25.12.2014, which would show the details of the passengers, including that of PW4, Thajudheen Chirakkara.
PW18, Smt.V.Rajini, the Customs Superintendent at the Calicut International Airport testified that, she was on duty till 08.00 am on 25.12.2014 and the accused Nos. 1 and 2 were on duty along with her. She also did not support the prosecution case with regard to the allegations against accused Nos. 1 and 2. Ext.P43, the relevant portion of her statement was marked through her, since she denied the same.
PW19, Smt. Sandeepni Garg, the Inspector of Police, CBI, Cochin is a crucial witness in the case, as she had participated in the joint surprise check conducted by the CBI team in Calicut International Airport on 25.12.2014. She deposed that during the course of the surprise check she was asked to verify the source of information given by one Thajudheen Chirakkara (PW4) and she ascertained from PW4 that 150 Dirhams was demanded and accepted by a Customs Guard (appellant) for the release of LED TV brought by PW4. She also testified that PW4 had given Ext.P14, written complaint to this witness and she had handed over the same to the Dy.S.P. The said complaint was faxed to the S.P, CBI, Cochin. Subsequently she got information about registration of FIR at about 9.45 am. Before that, the appellant, Suresh Kumar, a Havildar was brought to the customs hall. According to her, the investigation of this case was conducted by PW20, Jyothikumar. Further, she had interrogated PW4, Thajudheen and PW4 identified the Guard who had accepted 150 Dirhams. She also identified the accused Nos. 1 and 2 as the Officer and Havildar during investigation at about 10.00 a.m on the same day. She was present throughout the investigation and witnessed the seizure of 150 Dirhams and other items. According to her, she also was a signatory to Ext.P1(a), surprise check proceedings.
PW20 examined in this case is Sri. Jyothikumar.P, the Sub Inspector of Police on deputation in CBI, Cochin unit. He was also a party to the surprise check carried out in the Calicut International Airport on 25.12.2014 and he had conducted investigation of this case. According to him he was entrusted with the investigation of the present case. He deposed that PW4 identified the accused Nos. 1 and 2 and accordingly he had prepared Ext.P8, pointing out cum identification memo and later arrested accused Nos. 1 and 2 at about 10.15 am on the same day. He deposed further that when the second accused while in custody had given Ext.P44, disclosure statement before him regarding concealment of MO2 series (bribe money) and on the basis of the said disclosure statement, 150 UAE Dirhams (M.O2 series) was seized as produced by the second accused from the M.O7 bag as per Ext.P9, mahazar. He also conducted search to the Locker No. 23 and seized Indian currency of ₹64,530/-, Saudi, Behrain and Qatar Riyals, UAE Dirhams, six bottles of foreign made foreign liquor, a candy fan, a spray, perfume and other items under Ext.P10, search list. He specifically identified MO2 series, MO3 series, MO4 series, MO5 series, MO6 series, MO9 series and MO10 series, i.e. Dirham, Vodka, wine, brandy, perfumes, Qatar Riyal and UAE Dirham and Indian currencies. He had also collected the travel details of PW4 and he had also identified Ext.P14 complaint preferred by PW4. Ext.P46, the FIR registered by Sri. Krishnakumar, S.P, CBI was also marked through him, as he had identified the signature of the S.P therein. The accused Nos. 1 and 2 were also identified by him at the dock. Exts. P7, P18, P19, P20, P21, P22, P23, P24, P25, P26 and P43, the relevant portions of the contradictory statements of the witnesses were also proved through him.
PW21, Sri. Baiju. A, the Inspector of Police, CBI, Cochin was also a party to the joint surprise check conducted by CBI officers at the Calicut International Airport on 25.12.2014. According to him, he was a signatory to Ext.P1(a), surprise check proceedings. During the surprise check, on the basis of the complaint of PW4, Thajudheen, preliminary investigation was conducted by PW20 and then FIR was registered. Then PW20 had arrested the accused and seized the articles. He deposed further that he had conducted investigation of this case. He had interrogated the witnesses, recorded their statements, collected the CCTV footage details, seized MO1, DVD showing the details of CCTV footage along with Ext.P47, certificate u/s. 65 B of Evidence Act, seized other documents including Ext.P48, money declaration register, Ext.P49, attendance register, passenger manifest receipt etc. He has also submitted report for adding Section 13(1)(a) of the PC Act to the charge. He had obtained sanction to prosecute accused Nos. 1 and 2 from their superior officers and on completion of investigation, he had filed final report before this Court. Exts.P24 and P26, contradictory statements of PW9 and PW11 were also proved through him. Thus he fully supported the investigation.
Sri.Sunil.M.V examined in this case as PW2 was the Assistant General Manager, Air Traffic Control, Calicut International Airport, who was present along with the CBI officials at the time of search. According to him, a Muslim named person had lodged a complaint before the CBI and a raid had been conducted by the CBI officials in the Airport. CBI officials interrogated accused Nos.1 and 2 from the Airport. He did not support the prosecution with regard to the seizure of material objects in the presence of appellant/second accused and accordingly permission was granted to the Public Prosecutor to ask leading questions. During cross examination by the prosecutor after declaring PW2 as a hostile witness, he admitted his signature in Ext.P8, pointing cum identification memo and Ext.P9, seizure mahazar. According to him, he was not aware about the seizure of Dirham from the locker. In fact, PW2 had inconsistent versions and his evidence cannot be given much emphasis.
Here, as regards to the demand and acceptance of 150 Dirhams by the 2nd accused at 6.00 am on 25.12.2014, PW4 had given evidence. In order to corroborate the version of PW4, regarding demand and acceptance of 150 Dirhams (MO2 series), by the 2nd accused, the prosecution relied on the recovery of MO2 series as volunteered by the appellant himself, after disclosing the authorship of concealment of the same while he was in Police custody. Subsequent to the disclosure statement marked as Ext.P44 recovery of MO2 series was effected from the place where the appellant concealed the same, at his volition. Even though the learned counsel for the appellant argued that recovery was before the arrest of the accused at 10.15 am as evident from the evidence of PW2, on perusal of the evidence of PW2, the same would not in any way suggest that the recovery was at 8.00 am. Further PW2 is a witness who turned hostile to the prosecution on material aspects initially, though he had given evidence in support of the prosecution regarding certain aspects during his cross-examination by the prosecutor. During the further cross examination by the counsel for the appellant he had inconsistent versions. On scanning the evidence of PW2, the same is inconsistent and cannot be relied upon. Here, the Investigating Officer, PW20, given evidence that he had registered the FIR at 9.30 am and later at 10.15 am, the appellant was arrested on satisfying that he had involved in the crime. Then, while in Police custody, the appellant disclosed about the concealment of 150 Dirhams, he alleged to be demanded and accepted and the same was recovered from the place, where he had concealed the same. Therefore, the evidence of PW20 is found to be reliable, supported by PWs 19,21 and 22. Therefore the contention raised by the learned counsel for the appellant that at the recovery effected under Section 27 of the Evidence Act is in the midst of doubt cannot be appreciated. In addition to that the evidence available would categorically show that the accused was in police surveillance akin to custody from 8.00 am though his formal arrest was recorded at 10.15 a.m. Be it so, as held in the decision in Rohit Jangde's case (supra) and Dharam Deo Yadav's case (supra) the second accused was in the custody of the Police for the purpose of recovery under Section 27 of the Evidence Act. It was held that the expression "custody" which appears in S.27 did not mean formal custody, which includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time when the accused gave the Information, the accused was, for all practical purposes, in the custody of the police. It is true that, the prosecution has a case that initially the 1st accused also demanded 250 Dirhams to release the TV. But PW4 did not give evidence supporting this case. Even though, it is argued by the learned counsel for the appellant that the same is a reason to disbelieve the evidence of PW4, the same cannot be accepted as PW4 given consistent evidence regarding the demand and acceptance of MO2 series bribe money by the accused on 25.12.2014 and it was recovered as disclosed by the appellant ascertaining authorship of concealment, to corroborate the evidence of PW4.
Coming to the challenge raised relying on Ext.P8 identification memo of the accused by PW4, PW4 identified the 2nd accused when he was in khaki uniform as deposed by him. But Ext.P8 identification memo prepared at 9.50 pm would show that at the time of identification as per Ext.P8, the accused was in civil dress. In the instant case, the specific case of the prosecution is that the appellant demanded and accepted MO2 series bribe money for the release of Led TV brought by PW4 from abroad without paying customs duty for the same. So there were talk and negotiations between the appellant and PW4, when he was in uniform. PW4 thus identified the appellant as the person in khaki uniform, who demanded and accepted MO2 series though Ext.P8 would show his identification in civil dress. Thus identification of the appellant as the person, who had demanded and accepted the bribe from PW4 need not be disbelieved merely because of this aspect, since even in the absence of Ext.P8, the evidence of PW4 in this regard supported by the official witnesses, viz., PW19 to 22 is reliable Thus the said contention also is liable to fail.
Now, it is necessary to address the ingredients required to attract the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988. The same are extracted as under:-
Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act.
– Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (C) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Section 13:- Criminal misconduct by a public servant. –
(1)A public servant is said to commit the offence of criminal misconduct,-
a)xxxxx
(b)xxxxx
(c)xxxxxx
(d)If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. xxxxx
(2)Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
In this connection it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta Vs State, where the Apex Court considered when the demand and acceptance under Section 7 of the P.C Act to be said to be proved along with ingredients for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act and in paragraph 68 it has been held as under :
"68.What emerges from the aforesaid discussion is summarised as under:
(a)Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b)In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c)Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d)In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i)if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii)On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e)The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f)In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g)In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1) (d) and (ii) of the Act.
(h)We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”
Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law.
In this context, it is relevant to refer the decision of this Court in Sunil Kumar K. v. State of Kerala reported in [2025 KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under:
“12.Indubitably in Neeraj Dutta’s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M.Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police’s case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand.”
It is true that, in the instant case, the learned Special Judge acquitted the appellant for the offence under Section 7 of the PC Act, even though the ingredients for the said offence were also proved by the prosecution. The reason for the said acquittal recorded by the Special Judge could be gathered from Paragraph 61 of the judgment of the Special Court, which is extracted as under:
“61.As stated earlier, it is proved by the prosecution that the econd accused has received 150 Dirhams from PW4 for releasing a TV. In vailable Ext.P14, complaint. PW4 has a case that he approached the customs counter to pay customs duty in respect of the TV carried by him. In the final report, the prosecution alleges that the said TV is a non-dutiable one, being a used TV. PW4 at the time of evidence also deposed that the TV is a used one and not a dutiable item. So it is evident that no customs duty is payable in respect of the said TV. So the second accused has no legal duty to collect customs duty for the TV. Therefore, it is evident that the second accused has no motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his offici function, favour or disfavour to RW4. So, the ingredients of Sec. 7 is at all established in the case on hand.”
Thus the acquittal of the appellant for the offence punishable under Section 7 of the PC Act was not for failure of the prosecution to prove the ingredients for said offence. But the finding of the learned Special Judge is that the appellant did not receive any reward for doing or for bearing to do any official act and on the said finding, the appellant was acquitted for the offence punishable under Section 7 of the PC Act. On the facts and evidence involved in this case, this finding is erroneous. However, no appeal has been filed by the prosecution. In the instant case, the ingredients for the offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act have been proved as already found. Thus on re-appreciation of evidence, it is held that the prosecution successfully established the demand and acceptance of MO2 series bribe money by the appellant, to find commission of offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act. In such view of the matter, the verdict of the trial court is only to be confirmed.
Coming to the sentence, the learned Special Judge imposed very reasonable sentence in the facts of the case and therefore, sentence also does not require any interference.
In the result, this appeal fails and is dismissed accordingly.
The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the Special Court forthwith to undergo the sentence, failing which, the Special Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of the judgment to the Special Court, forthwith for information and compliance.