V.A. Abraham Vs. Superintendent of Police [Kerala High Court, 14-01-1988]

Criminal Procedure Code, 1973 – Sections 161 & 162 – Evidence of Witness – Statement obtained during investigation – Previous Statements – Investigation in Anti Corruption Case – Recovery Mahazars signed by witnesses – Distinction with other cases.

Evidence of Witness

1988 (1) KLT 379 : 1988 (1) KLJ 176 : 1988 CriLJ 1144

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Hon’ble Mr. Justice S. Padmanabhan

V.A. Abraham Vs. Superintendent Of Police

Crl.A. No. 453 of 1986

14-01-1988

Advocates: For Appellant: V. Radhakrishnan Menon, P. Gopinath; For Respondent: T.R. Raman Pillai, Public Prosecutor.

JUDGMENT

S. Padmanabhan, J.

1. The Special Judge (SPE/CBI)-I, Ernakulam, convicted and sentenced the appellant under S. 161, IPC and under

S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act

to rigorous imprisonment for two years each with an additional sentence of Rs. 5,000/- fine for the latter with a default sentence of simple imprisonment for 3 months, with permission to suffer the substantive terms concurrently.

2. Appellant was the Administrative Officer in the Head Office of F.A.C.T. in charge of purchase. PW. 1 was the Divisional Manager of a Company by name “Logic Systems Pvt. Limited” with which the F.A.C.T. placed orders for purchase of electric typewriters. The charge is that misusing his official position the appellant demanded and received Rs. 2,000/- as illicit gratification from PW. 1.

3. Defence is that there was no demand or receipt and PW. 1 was only arranging an illegitimate trap to save his employment from which he was facing dismissal and the money was actually thrust into the pant pocket of the appellant without his knowledge or consent.

4. There are certain undisputed facts which throw considerable shadows of doubt in the prosecution story and evidence. Pursuant to tender notification from the F.A.C.T., the Logic Systems submitted tenders on 8-12-1983 for supply of electric typewriters at the rate of Rs. 32,700/- as seen from folio 158 of Ext. P26. There was negotiation by which the amount was reduced to Rs. 27,370/- and made in conformity with the D.G.S. & D rates. This rate was accepted and orders placed by the appellant with the concurrence of the finance for supply of three numbers. Two were supplied in February 1984 and one on 23-8-1984 and payments were made. Transactions were thus finally closed.

5. As per rules repeat orders could be placed without fresh tender notification within six months at the same rates. When fresh supply became necessary the appellant placed orders for supply of two more numbers, one in March and the other in April, 1984. Though the order was placed after the expiry of six months and 5 days it was with the approval of the finance as admitted by P.W. 3. In March, 1985 supply of one number was had and payment was also made. The finance Director then passed orders keeping the supply of April, 1985 in abeyance pending further directions. PW. 3 informed the appellant by Ext. P11 dt. 15-3-1985 and appellant in turn informed PW. 1 by Ext. P12 dt. 18-3-1985. At no point of time till the entire supplies and payments were over and up to 9-5-1985 the appellant made any demand for any illicit gratification or create any difficulties. PW. 1 was aware of these facts and that supply was suspended only by the orders of the Finance Director and the appellant had no hand in it. This was admitted by PWs. 1, 2 and 5 and PW. 3 gave evidence that even if appellant wanted he was not in a position to create any difficulties by himself.

6. The prosecution case as spoken to by PW. 1 and detailed in Ext. P4 first information is that on 9-5-1985 PW. 1 approached the appellant to persuade him to have the purchase, but he wanted illicit gratification of Rs. 4,000/-, out of which Rs. 2,000/- was for the supply made in March, 1985 for which payment was also made without any demand for illicit gratification and Rs. 2,000/- for the purchase to be made in April. Finally the amount reduced from Rs. 4,000/- to Rs. 2,000/- but appellant wanted payment that day (9-5-1985) itself. PW. 1 promised to make the payment, but went and gave Ext. P4 information to PW. 10, Inspector of C.B.I. He arranged the trap. PWs. 2 and 9 are the trap witnesses. PW. 2 alone went with PW. 1 to the appellant and PW. 9 waited outside. PWs. 4 and 7 are employees having seat in the room of the appellant. The initial version was that PWs. 4 and 7 were also in the room and they heard PW. 2 being introduced by PW. 1 to the appellant as a typewriter mechanic though in fact he is an employee of the Export Inspection Agency. But in the box PW. 2 disowned the presence of PWs. 4 and 7 and hence they also fell in line. The further case is that appellant enquired with PW. 1 whether amount was brought and after getting an affirmative answer he took PWs. 1 and 2 to the office of the Finance Director where PW. 2 was introduced as the typewriter mechanic. The appellant further found fault with PW. 5 for keeping the order in abeyance and got a reply from PW. 5 to the hearing of PWs. 1 and 2 also that it was only on account of the orders of the Finance Director in which nobody else could do anything. The prosecution version is that immediately thereafter when PWs. 1 and 2 and the appellant came out to the varanda, PW. 1 gave the amount which was received by the right hand by the appellant and after transferring it to the left hand he put it in the left front pocket of his trousers. Defence version is that the amount was put into his pocket without his knowledge and consent and when he found fault with PW. 1 and attempted to take the notes out he was trapped.

7. Ext. P5 is the trap mahazar and Ext. P6 is the recovery mahazar. Recovery is not disputed. Hands and pocket of the appellant were positive to the tests and the notes recovered were also identical. The question is only whether the payment was as alleged by the prosecution or the defence. The evidence of PWs. 1, 2, 6, 9 and 12 is that the amount was recovered from the pocket whereas the defence version is that the appellant was caught when the amount was in his hand in an attempt to give it back. If PWs. 1, 2, 6, 9 and 12 are believed, the defence version of payment may be improbable. Even if that be the position the demand alleged by the prosecution and the attitude of PW. 1 in having a bargain and making an unwilling payment are improbable in view of the facts stated above.

8. It was argued for the C.B.I. on the strength of the decisions is