M. Abbas v. State of Kerala (SC)
BS142675
SUPREME COURT OF INDIA
Before:- Dr. A.S. Anand, C.J., R.C. Lahoti and Doraiswamy Raju, JJ.
Criminal Appeal No. 325 of 1995. D/d.
23.1.2001.
M. Abbas - Appellant
Versus
State of Kerala - Respondent
Prevention of Corruption Act, 1947, Sections 5(1)(d) and 5(2) - Indian Penal Code, 1860, Section 161 - Appellant charged for demanding bribe from a contractor (PW2) for refund of earnest money deposited by him at the time of submission of tender - Appellant arrested pursuant to a trap laid by Vigilance Wing - Appellant admitted seizure and recovery of currency notes from his possession in his statement under Section 313 Criminal Procedure Code, 1973 - But appellant defending that the amount had not been received by him as bribe, but for the purpose of giving the same to another contractor who had completed the work - PW2 later declared hostile and confirming the explanation given by appellant - There was nothing on record to show that Municipality paid the other contractor any amount for removal of the bump - Held, probability of receipt of the amount by appellant for the other contractor as explained by appellant cannot be ruled out - Hence charge of demand and receipt of the money as bribe not established.
[Paras 9 and 10]
ORDER
1. The appellant, at the relevant time, was serving as an Overseer with Nedumangad Municipality. PW 2 Sasidharan Nair was a Contractor with that Municipality. According to the prosecution case, the appellant demanded a sum of Rs 200 as bribe from PW 2 for refunding earnest money and security deposit amounting to Rs 500, which had been deposited at the time of submission of tender for maintenance work of Poovathoor Road, which work was completed by the Contractor, PW 2 by 12-7-1984. PW 2 submitted a bill for Rs 10,000. He was, however, paid Rs 8706.12 only after measurements were taken. On 28-8-1984, PW 2 applied for release of earnest money and security deposit. His application was referred to the appellant for report. It is at that point of time on 18-10-1984 that, it is alleged, the appellant demanded Rs 200 as bribe from PW 2 for processing his refund application. It is further alleged by the prosecution that on 19-10-1984, PW 2 paid Rs 50 to the appellant and left after promising to pay the balance amount of Rs 150. PW 2 then made a complaint (Ext. P-6) at the headquarters of the Vigilance Wing. The complaint was recorded by Deputy SP A. Thankappan Pillai, PW 5. A trap was thereafter organised for 21-11-1984. PW 1 Sivadasan, working in the Local Fund Accounts Office was joined as a panch witness. PW 2 Contractor was given instructions regarding giving of signal after the appellant received the bribe. Three currency notes of the denomination of Rs 50 each were produced by PW 2. Those notes were treated with phenolphthalein powder and after recording their particulars were handed back to PW 2, who was instructed to give a pre-arranged signal in case bribe was demanded/accepted by the appellant.
2. On 21-11-1984, the raiding party went to the office of the appellant. PW 2 went ahead and in the verandah of his office, he handed over the tainted currency notes to the appellant who received the same and put them in his shirt pocket. On receipt of a pre-arranged signal, the raiding party rushed to the municipal office compound. The Deputy SP, PW 5 disclosed his identity to the appellant and searched him. The tainted amount was recovered from the pocket of the shirt of the appellant. The appellant was asked to dip his hands in a solution of sodium bicarbonate. The solution turned pink. After tallying the numbers of the currency notes recovered from the shirt pocket of the appellant, the same were seized and the seizure memo was prepared at the spot. The appellant was taken into custody and after completion of investigation was sent up for trial for offences under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 161 Indian Penal Code.
3. The prosecution led evidence, after appreciation of which, the trial court convicted the appellant and sentenced him to undergo simple imprisonment for one year for the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. No separate sentence was awarded while convicting the appellant for the offence under Section 161 Indian Penal Code. Aggrieved by his conviction and sentence, the appellant filed an appeal in the High Court which was dismissed vide order dated 22-12-1994. His conviction and sentence were sustained. By special leave, the appellant is before us.
4. From a careful perusal of the evidence on record, we are satisfied that the three currency notes of the denomination of Rs 50 each were recovered from the shirt pocket of the appellant and those currency notes were the same which PW 2 had presented before the Investigating Officer, PW 5 on the previous day and which had been treated with phenolphthalein powder. The appellant also, in his statement recorded under Section 313 Criminal Procedure Code, 1973 has admitted that the seized currency notes had been received by him and had also been recovered from his possession. The explanation of the appellant, however, was that the amount of Rs 150 had not been received by him as bribe but for the purpose of giving the same to another Contractor ?Kamalasanan, who had completed the work of removing the bump from the road, which otherwise was required to be removed by the Contractor, PW 2.
Appeal allowed.