Kerala High Court
Dr.S.P. Malarkannan vs State Of Kerala on 12 August, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
CRL.A NO. 2423 OF 2009
CC NO.117 OF 2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANT/ACCUSED:
DR.S.P. MALARKANNAN,
S/O.PALANICHAMY,
7 MEENAKSHI STREET,
ARUPPUKOTTAI, VIRUDHANAGAR.
BY ADVS.
SRI.M.T.SURESHKUMAR
SRI.P.M.RAFIQ
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRUTHY N. BHAT
SRI.RAHUL SUNIL
SMT.SRUTHY K.K
SHRI.SOHAIL AHAMMED HARRIS P.P.
SMT.NANDITHA S.
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERANAKULAM.
ADV P.VIJAYA BHANU (SR.)
SPL. PUBLIC PROSECUTOR ADV.RAJESH.A VACB,
SR. PUBLIC PROSECUTOR ADV. REKHA.S VACB.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.07.2025,
THE COURT ON 12.08.2025 DELIVERED THE FOLLOWING:
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"C.R"
A. BADHARUDEEN, J.
================================
Crl.Appeal No.2423 of 2009-C
================================
Dated this the 12th day of August, 2025
JUDGMENT
The 1st accused in C.C.No.117/2008 on the files of the Enquiry
Commissioner and Special Judge, Kottayam, who is aggrieved by the
judgment dated 01.11.2009, has preferred this appeal. Respondent is the
State of Kerala represented by the Public Prosecutor.
2. Heard the learned counsel for the accused/appellant and
the learned Public Prosecutor representing the prosecution side.
3. Perused the trial court records and the judgment under
challenge.
4. In a nut shell the prosecution allegation is that the first
accused had worked as a Veterinary Surgeon and the 2 nd accused worked
as a Livestock Inspector in Government Veterinary dispensary, Rajakkadu
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during 2002. While so, the first accused, being a public servant, at 6.00
P.M on 29/04/02 demanded illegal gratification of Rs.1500/- from one
Prasanth, who is the brother’s son of one Vijayan, as a motive for issuing
postmortem certificate and other details of the cow of Vijayan, for
claiming insurance amount. The first accused accepted Rs 200/-from
Prasanth and repeated the demand for the balance amount. Thus at 5:30
P.M on 01.05.2002, the first accused obtained Rs.500/- from Vijayan and
he made demand for the balance amount. On 25/09/02 at 12.00 noon first
accused demanded Rs.800/- after issuing the papers, from Vijayan and
when he expressed inability to pay the amount first accused took back that
papers. On 28/09/02 first accused demanded a minimum of Rs.500/- from
said Vijayan. Then he informed the Dy S.P. Vigilance and trap
proceedings were initiated against the first accused. Thereafter at 12:30
PM on 01/10/2002 in the office room of the first accused, the accused
demanded and accepted Rs.500/- from Vijavan. The further allegation is
that the first accused entered into a criminal conspiracy with 2 nd accused
and in furtherance of the said conspiracy, the 2 nd accused aided the 1st
accused to conceal the received bribe amount from Vijayan and to screen
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the 1st accused and to cause disappearance of evidence. On the said
premise, the prosecution alleges commission of offences punishable under
Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (`PC
Act‘ for short) and Sections 201, 109 and 341 of the Indian Penal Code
(`IPC‘ for short), by the 1st and 2nd accused.
5. In this matter the Special Court took cognizance of the
offences and recorded evidence. PW1 to PW12 were examined and
Exts.P1 to P18 and M.O1 to M.O13 were marked on the side of the
prosecution. Even though opportunity was provided to the accused to
adduce defense evidence, after questioning him under Section 313(1)(b) of
Cr.P.C, no defense evidence adduced.
6. Thereafter, the trial court found that the 1st accused
committed the offences punishable under Sections 13(1)(d) r/w 13(2) of
the PC Act, while acquitting him for the other offences and the 2 nd accused
was acquitted for all the offences. Accordingly, the 1 st accused is
sentenced as under:
“sentenced to undergo simple imprisonment for 3 (three) years and fine
Rs.25,000/- in default to undergo simple imprisonment for 6 (six) months and
convicted under Sec.13(2) r/w 13(1)(d) of the Prevention of Corruption Act and
sentenced to undergo simple imprisonment for 3 (three) years and fine
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sentence of imprisonment shall run concurrently. The accused is entitled for set
off under Sec.428 Cr.P.C from 01.10.2002 to 08.10.2002 M.O.1 series shall be
confiscated. M.O.2 to 9 and M.O.11 shall be returned to Dy.S.P, V.A.C.B,
Iddukki. M.O.10 shall be destroyed. M.O.12 series and 13 shall be returned to
the first accused.”
7. While assailing the verdict of the trial court, the learned
Senior Counsel appearing for the 1st accused submitted that as per the
evidence of PW6 referred in paragraph 12 of the judgment, it was
observed by the Special Court that the 1 st accused did not ask for Rs.700/-
as bribe and also he didn’t say that he witnessed the giving of any bribe to
the 1st accused. According to the learned Senior Counsel, in this case, the
2nd accused alleged to have demanded bribe for and on behalf of the 1 st
accused and as per the evidence of PW10, when he gave money to the 1 st
accused, he pushed it away. Thus the point argued by the learned Senior
Counsel is that the evidence of PW10 would clearly indicate that the
petitioner neither demanded nor accepted the money. According to him,
M.O1 series, the bribe money, also was recovered from the chamber of the
2nd accused. Therefore, in this case there is no evidence to see demand and
acceptance of bribe by the 1st accused and, in such a case, without properly
appreciating the evidence, the Special Court entered into the conviction
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and sentence which would require interference.
8. Opposing the contention, the learned Special Public
Prosecutor argued that even though the 1st accused stated that when money
was given he pushed it away, on phenolphthalein test by dipping the hands
of the 1st accused in Sodium Carbonate solution there was colour change
which would indicate that the 1st accused had accepted the bribe and
handed over to the 2nd accused. PW10’s evidence in this regard is against
his previous statement as he turned hostile to the prosecution. According
to the learned Public Prosecutor, the ingredients to attract offences are well
established in this case. Therefore, the conviction and sentence do not
require any interference.
9. Having addressed the rival contentions, the points arise
for consideration are:
(i) Whether the Special Court went wrong in finding that the 1 st
accused committed offence under Section 7 of PC Act?
(ii) Whether the finding of the Special Court, holding the
view that the 1st accused committed offence punishable under Section
13(1)(d) r/w 13(2) of the PC Act is correct?
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(iii) Whether the verdict would require interference?
(iv) The order to be passed?
Point Nos.(i) to (iv)
10. Going by the judgment of the Special Court, in
paragraph 22 the Special Court observed that the 164 Cr.P.C statement of
the 2nd accused recorded before arraying him as an accused and the
statement given by the 2nd accused during 313 questioning could not be
used against the 1st accused. Thus the Special Court found that there is no
direct legal evidence to find that the 1st accused handed over the tainted
notes to the 2nd accused. But the Special Court found that from the
circumstances necessary presumption could be drawn that the 1 st accused
gave notes to the 2nd accused since PW10 didn’t say what happened to the
notes fell down. This is the specific point on which the learned Senior
Counsel canvassed acquittal on the ground that there is no evidence
against the 1st accused to find commission of offences by him.
11. In this case, crime was registered recording the statement
of PW10 by PW11 and Ext.P13(a) is the FIS so recorded and Ext.P13 is
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the FIR registered. According to PW11 after registering the FIR he took
custody of 5 notes of the denomination of Rs.100/- from the complainant,
who was examined as PW10 in the presence of Satheesh Babu and George
Daniel, who were summoned as witnesses and he marked date on the
water mark of the notes and M.O1 series are the said notes. He deposed
about demonstration of phenolphthalein test and colour change.
According to him, Ext.P1 is the mahazar prepared while M.O1 series was
obtained from PW10. PW10 would depose that after registering Ext.P13
FIR and preparing Ext.P1 mahazar, the vigilance party, along with the
independent witnesses and PW10, reached near the Rajakkadu Veterinary
hospital at 12 noon on 01.10.2002 and according to PW10, he had availed
loan from Malanadu L.M.Bank to purchase a cow in the year 2002. 2
months later, the cow died and in order to claim insurance amount, he met
the 1st accused to conduct the postmortem of the cow. PW4 and PW6 went
to see the doctor in order to fix the date. Then PW4 told him that the
accused asked for bribe and that he gave complaint to the vigilance police.
He admitted giving statement to the vigilance in this regard and the
signature in Ext.P13(a) FIS. PW10, in fact, turned hostile to the
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prosecution during chief examination. The evidence of PW10 further is
that the Dy.S.P gave him some money and he did not count it and he did
not notice whether the Dy.S.P noted the number and that he was not shown
the reaction of phenolphthalein powder. But he admitted handing over of
M.O1 series notes by PW11. According to PW10, when he reached the
office of the 1st accused, the doctor was sitting in his room and he gave
money to the doctor. Then the doctor pushed it away and the notes fell
down. He was asked whether the doctor accepted bribe, he replied
negatively. PW1 denied his previous statements to the effect that the
doctor counted the notes with both his hands and the doctor said that there
was only Rs.500/- and the doctor began to return the notes. Exts.P14 and
P14(a) are the contradictions marked in this regard. PW10 deposed further
that when the doctor tried to go out of the office in a jeep, he gave signal
and then the Dy.S.P and the government officials came there and he
described the incident.
12. In this case, the independent witness examined by the
prosecution, who witnessed pre and post trap proceedings, is PW1. The
evidence of PW1 is that on 01.10.2002 he went to Idukki officer in order
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to assist the vigilance as per the direction of his superior officer and he
accordingly reached at 8 a.m. When he reached the vigilance office he
noticed the presence of PW10 and the other official witness. The Dy.S.P
informed him that if the Government officer demands for bribe, he should
be a witness for the same. According to PW1, Vijayan (PW10) entrusted 5
notes of Rs.100/- denomination to the Dy.S.P and the Dy.S.P marked and
he identified the same as M.O1 series. He also corroborated the version of
PW11 regarding the pre trap proceedings done at the vigilance officer and
he also admitted his signature in the register. According to PW11 he along
with the vigilane party reached near Rajakkad Veterinary hospital. Then
he corroborated the version of PW11 regarding sending of PW11 to the
Veterinary hospital and the signal given by PW10 after acceptance of bribe
by the 1st accused. Subsequently he deposed about the post trap
proceedings and dipping of the fingers of the 1 st accused in Sodium
Carbonate solution and pink colour change to the solution, and he
identified M.O2 as the bottle containing the said solution. According to
PW1, then the left hand of the doctor also was dipped in Sodium
Carbonate solution and there was pink colour change, and he identified the
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said solution as M.O2. According to PW1, nothing recovered from the 1 st
accused. The further evidence of PW1 is that Abdul Vahab, the 2 nd
accused, stated that the doctor entrusted some money to him on
undertaking to return back in the evening. Later the right hand of the said
Abdul Vahab also was dipped in the Sodium Carbonate solution and there
was pink colour change and the said liquid is M.O5. Even though the left
hand of the 2nd accused also was dipped in the Sodium Carbonate solution,
there was no colour change and the said liquid is M.O6. Thereafter he had
recovered the notes kept in an old pot near the seat of the 2 nd accused and
on inspection he found that the said notes (Rs.500/- in total) were entrusted
by the doctor to PW10 having denomination of Rs.100/- each. When notes
were dipped in the Sodium Carbonate solution, the solution showed pink
colour change and the said liquid is M.O7.
13. PW2 examined in this case is a Part-time Sweeper
attached to Government Veterinary Dispensary, Rajakkad and it was
through her, Ext.P4 attendance register as on 01.10.2002 was proved.
According to PW2, as on 01.10.2022, Abdul Vahab, the Live Stock
Inspector (A2) and Dr.Muralikannan, the Veterinary Doctor (A1) were
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present in the office. Regarding the trap proceedings, PW2 did not support
the prosecution.
14. PW3, the Manager, Union Bank of India, was examined
by the prosecution and PW3 testified that in order to give insurance
pertaining to the cow (dead) purchased by loan from Union Bank,
Rajakumari, Postmortem certificate issued by the Veterinary doctor and
the request of the party were necessary. PW4, the brother’s son of PW1
and PW6 turned hostile to the prosecution.
15. The District Animal Husbandry Officer in between
10.05.1999 to 2004 was examined as PW5 to prove that the 1 st accused
was appointed as Veterinary Surgeon in Veterinary Dispensary, Rajakkad
as on 03.01.2002 as per Ext.P7 and he also was given the additional charge
of the Veterinary Dispensary, Santhanpara and the order in this regard is
marked as Ext.P8. During chief examination itself, PW5 stated that there
is no necessity to keep Phenolphthalein power content in Veterinary
hospital. The evidence of PW5 has been given much emphasis by the
learned counsel for the accused on the submission that in order to conduct
postmortem of a deceased animal free of cost as part of Government job,
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the dead animal to be produced before the Dispensary at the expense of the
party. Further, during duty time Veterinary Surgeon did not go to conduct
postmortem of dead animals of private parties. Further, if on request of
the Panchayat such postmortem was done during duty time, honourarium
would be given. Further PW5 also had given the evidence that if the
Veterinary Doctor conducted postmortem, there was permission to receive
fees and it is the usual practice that Veterinary Surgeon may do private
practice and earn money.
16. PW7 examined in this case is the Judicial First Class
Magistrate Court-I, Thodupuzha on 16.10.2002. It was through him
Ext.P11 confession statement given by the 2 nd accused was marked and the
learned Magistrate given evidence supporting 164 statement. Ext.P12 is
the sanction issued to prosecute the accused by N.Ramakrishnan, the
Principal Secretary and the same was proved through PW8, the Under
Secretary, who worked along with him. In fact, there is no challenge
raised as regards to sanction.
17. PW12 while working as Dy.S.P, VACB, Idukki, filed
this case and it was through him, Ext.P18 mahazar pertaining to recovery
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of documents produced by the L.D Clerk, B.D.O as on 07.06.2004 got
marked and it was PW12, who incorporated the 2 nd accused also in the
array of accused.
18. On scrutiny of the prosecution evidence, 164 statement
given by the 2nd accused regarding the involvement of the 1 st accused, in
the matter of demand and acceptance of bribe by him from PW10, could
not be accepted, as the statement of a co-accused cannot be the foundation
to convict another co-accused. Similar is the position as far as the 313
statement of the 2nd accused, even otherwise the same is not evidence
contemplated under the Evidence Act, as rightly found by the Special
Court. Now it is necessary to delve upon, what is the independent
evidence available to prove demand of bribe by the 1 st accused and
acceptance of the same pursuant to the said demand.
19. 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
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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.
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(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
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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.”
20. 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
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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. 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
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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.
21. In this case the crucial witness cited by the prosecution
to prove the demand and acceptance of bribe by the 1 st accused is PW10,
the complainant, but he turned hostile to the prosecution. In his evidence,
there is nothing to suggest demand of bribe by the 1 st accused. According
to PW10 when he gave the bribe money, the 1 st accused pushed it away.
Even though this evidence is against the prosecution without support of his
prior statement, no effective cross examination done by the legal advisor,
Vigilance to extract anything from the mouth of PW10 regarding demand
and acceptance of bribe by the 1st accused. No other witnesses are
available to see the demand otherwise. Therefore, either by the direct
evidence or by circumstantial evidence, demand of bribe by the 1 st accused
could not be established. PW11 also given evidence that when the 1 st
accused was asked about the bribe money given by PW10, he replied that
he didn’t accept the same and he pushed it away. It is true that M.O1 series
notes was recovered from the pot nearby the 2nd accused. Anyhow the 2nd
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accused was acquitted by the Special Court for want of evidence. No
appeal preferred thereof. Thus as per the observation made by the learned
Special Judge in paragraph 22 it was found that there is no direct legal
evidence to find that the 1st accused handed over the tainted notes to the 2 nd
accused. But the Special Court was of opinion that from the circumstances
the necessary presumption could be drawn that the 1 st accused gave notes
to the 2nd accused. That apart, the Special Court taken note of the colour
change occurred when the hands of the 1 st and 2nd accused were dipped in
carbon to find acceptance of bribe by the 1 st accused and handing over of
the same to the 2nd accused. In fact, this could happen even if the notes
had been thrown away by the 1 st accused. Since the 2nd accused was
acquitted by the Special Court and the Special Court did not find any
challenge against the said acquittal, this Court need not discuss on the
acquittal of the 2nd accused.
22. It is pointed out by the learned counsel for the accused
that as per Rule 71 of the Manual of Animal Husbandry Department,
Veterinary Surgeons and other officers in the same grade are allowed to
take up private practice without detriment to their official duties and that
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such private practice may be prohibited if such practice is likely to
interfere with the efficient discharge of official duties. As per Rule 74 of
the Manual of Animal Husbandry Department, any fee charged for private
attendance shall be reasonable and shall conform to normal professional
conduct and as per Rule 75, private practice should be undertaken only
outside office hours without causing public interest to suffer on any
account. These provisions have been pointed out by the learned counsel
for the accused to prove that the 1st accused if at all found to have received
any amount that would have to be considered as fees for doing postmortem
of dead animals as part of private parties.
23. Having appraised the evidence in this matter, in fact,
demand of bribe by the 1st accused not at all established by reliable and
convincing evidence. If at all the colour change in the hands of the 1 st
accused is taken into consideration to prove acceptance, then also demand
could not be found. In such view of the matter, the Special Court went
wrong in holding that the 1st accused committed offences punishable under
Sections 7, 13(2) r/w 13(1) of the PC Act beyond reasonable doubt since
the prosecution evidence is not free from doubts. Therefore, the 1 st
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accused is entitled to get the benefit of doubt.
In the result, this Appeal succeeds. Accordingly the verdict under
challenge is set aside and the appellant/1 st accused is acquitted for the said
offences. The bail bond of the 1 st accused stands cancelled and he is set at
liberty forthwith.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/