Madras High Court
K.Elangovan vs The State Rep. By on 30 August, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order: 30.08.2018
Date of Pronouncing the Order: 10.09.2018
Dated: 10.09.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A.(MD) No.251 of 2007
K.Elangovan ... Appellant
Vs.
The State Rep. by
The Inspector of Police
SPE/CBI/ACB/Chennai
R.C.M.A1 2004-A-0068 ... Respondents
PRAYER : Criminal Appeal filed under Section 374(2) of the Criminal Procedure
Code to call for the records from the trial court and set aside the
conviction and sentence passed by the trial court, acquit the appellant in
C.C.No.3 of 2005 dated 09.05.2007 of Special Judge for C.B.I.Cases, Madurai.
For Appellant : Mr.Veerakathiravan
for Mr.S.Thirupathy
For Respondent : Mr.N.Nagendran,
Special Public Prosecutor for CBI Cases
:JUDGMENT
The appeal is directed against the judgement of the Special Judge for CBI cases , Madurai made in C.C.No. 03 of 2005, dated 09.05.2007.
2. The appellant herein was the Sub Inspector of Police, Railway Protection Force, Tanjore District during the relevant point of time. He was found guilty by the trial court for acceptance of Rs.10,000/- on 23.11.2004 from Muthukameswaran, S/o. Bose Nadar as illegal gratification other than legal remuneration.
3. The trial court after examining eleven witnesses on the side of the prosecution and two witnesses on the side of defence, analyzed the Exhibits P.1 to P.34 and Exhibits D.1 to D.5 and material objects M.O.1 to 9, held the accused/ appellant guilty of offences under Section 7 and 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act. He was convicted and sentenced to undergo 2 years imprisonment and to pay a fine of Rs.5000/- i/d to undergo six month Rigorous imprisonment for offence under section 7 of the Prevention of Corruption Act, 1988 and 2 years Rigorous Imprisonment and to pay a fine of Rs.5000/- i/d to undergo six months Rigorous Imprisonment for offence under Section 13(2) r/w.13(1)(d) of Prevention of Corruption Act, 1988. The period of sentence are ordered to run concurrently. Aggrieved by the above judgment of conviction and sentence, the present appeal is filed.
4. The brief facts of the case as spoken through the witnesses is as follows:
The accused, Sub Inspector of Police, Railway Protection Force, Tanjore District along with two other constables of Railway Protection Force while on duty on 15.11.2004 arrested one Thangamani for having found in possession of railway property. The case was registered against Thangamani in Crime No. 10 of 2004 and the matter was under investigation by the accused.
5. Bose Nadar and his son Muthukameswaran (PW.2) were running a scrap iron shop at Sarboji Market, Keezhavasal, Tanjore. Bala @ Kamatchi (PW
3) was the staff under them. On 21.11.2004 (Sunday) at about 02.30 p.m the accused had gone to the shop of Muthukameswaran (PW 2) enquired Bala @ Kamatchi (PW 3) and had informed P.W.2 over phone that he has come to take Bala @ Kamatchi (PW 3) to Railway Protection Force station in connection with railway property theft case. When PW2 informed that he has not received any railway properties and if he want, they can even search his shop but not take any of his staff to station. The accused told him to come and meet him in person. Immediately P.W.2 came to the shop from his house and met the accused and explained him that he has nothing to do with stolen railway property. He has not purchased any stolen railway property from Thangamani who was arrested by the accused in connection with railway property theft. At that time the accused has demanded illegal gratification of Rs.20,000/- for not implicating P.W.2 or his staff in the theft case registered against Thangamani. When P.W.2 pleaded his innocence, the accused had demanded first installment bribe money of Rs.10,000/- to be paid by Wednesday or else he has to face serious consequences. The accused has also given his cell number 94435 86907 to P.W.2 and instructed him to contact over phone on Wednesday to ascertain the place of meeting. On Tuesday the accused called P.W.2 over phone and threatened him that he has given time only till Wednesday, till now he has not paid the first installment bribe of Rs.10,000/-. If bribe not given, he will take severe action.
6. P.W.2 was not inclined to give bribe. He met the Deputy Superintendent of Police, CBI at his camp office at Tanjore and gave complaint. On receipt of the complaint ( Ex.P.2) S.P.Sankar (P.W.9) took cognizance and proceeded with the investigation. Since the complaint reveals prima facie allegation against Elangovan, Sub Inspector of Police, Railway Protection Force, Tanjore, endorsement to that effect was made by P.W.9 on the complaint. The said endorsement is exclusively marked as Ex.P.24. Being satisfied with the genuineness of the complaint given by P.W.2 pre trap proceedings was initiated. Thereafter P.W.9 has arranged for two independent witnesses namely, Nandakumaran, Officer of Indian Overseas Bank, Regional Office, Tanjore and S.K.kumaran Assistant Branch Manager, Eswari Nagar, Tanjore. Demonstrated to them the significance of Sodium Carbonate- Phenolphtalein test. Rs.10,000/- bribe money was smeared with Phenolphtalein and entrusted to Muthukameswaran (P.W.2). A micro cassette recorder with micro cassette of sony make was also entrusted to the defacto complainant to record the conversation between the defaco complainant and the accused, during transaction of bribe money. With instruction P.W.2 should switch on immediately after he reaches the office of the accused. Thereafter PW.2 has called the accused over phone and informed him that he has made ready the first installment bribe money of Rs.10,000/- and want to know the place of meeting. The accused told him to come to the station at 6.30 p.m. Accordingly the defacto complainant, PW.2 along with S.K.Kumaran (PW.4), went to the Railway Protection Force station at Tanjore at around 6.25 p.m. the trap team followed them and took position near the station. The accused was standing near the station. P.W 2 and P.W.4 met the accused and the accused took P.W.2 few yards away towards eastern direction. S.K.Kumaran (P.W.4) was watching P.W.2 and the accused. Few friends of accused came to him and were conversing with him. After conversing with the defacto complainant and three persons for nearly 20 to 25 minutes, accused took the complainant further to a place between two TATA sumo cars parked facing south and received Rs.10,000/- from P.W.2. On receiving the pre arrange signal from P.W.2, the trap team led by S.B.Sankar (P.W.9) went near the accused and introduced himself as Deputy Superintendent of Police, CBI. Immediately the accused pushed P.W.9 and Jeyarajan Inspector of CBI who was standing along with S.B.Sankar and ran towards a bush near the railway station. while running near the bush he took the contents in his right side pant pocket and threw it into the bush. With the help of Jeyaraj and others the accused was caught and over powered. The tainted currency notes of Rs.10,000/-(M.O.5), Handkerchief (M.O.7), the railway ticket for Train No. 6609 from Trichy to Chenni, journey date 29.11.2004, gate pass of the accused and few other materials which was thrown by the accused in the bush were recovered under mahazhar. The currency recovered were compared with the numbers found in the entrustment mahazhar and found tallied. The phenolphathelin test on the hands of the accused was conducted and found positive. Thereafter the recovery mahazhar was prepared. Baldev Raj (PW.1),the Deputy Chief Security Commissioner, Railway Protection Force, Chennai who is the competent person to remove the accused from the office has accorded sanction to prosecute the accused after perusing the materials and being satisfied the accused has committed offence under P.C.Act.
7. The court below while appreciating the evidence found that neither Bose Nadar nor his son Muthukameswaran (PW.2 ) were shown as accused in the case registered against Thangamani by the Railway Protection Force in which the appellant was the investigating officer. However, the accused/ appellant had taken advantage of the case and threatened P.W.2 to extract money. For the said purpose accused had visited the business premises of PW.2 on 21.11.2004 and threat ended to arrest his staff (P.W.3) the accused had negotiated with P.W.2 for bribe of Rs. 20,000/- and demanded Rs.10,000/- as first installment to be paid on or before ensuing Wednesday. This fact has been established from P.W.2 and P.W.3. The recovery of tainted money along with other personal belongings of the accused were spoken by witnesses who were presented at the time of recovery. Micro cassette which was given to P.W.2 to record the conversation could not be transcripted, though attempt to transcribe in the presence of court officer as per the direction of the court made. The explanations by way of defence side and documents produced by the accused does not rebut the presumption caused on the accused. Having failed to disprove the case of prosecution and his explanation being unbelievable, the minor discrepancies pointed out by the defence did not go against the clinching evidence let in by the prosecution.
8. Aggrieved by the said findings the present appeal is filed on the following grounds.
i) The court below had relied upon the evidence of PW 1 and 2 who are interested witnesses.
ii) The presence of PW 3 on 21.11.20024 at the business premises of P.W.2 Muthukameswaran and visit of the appellant to the premises are not proved through reliable evidence.
iii) The phone details of PW.2 and the accused relied upon by the prosecution does not reveal any telephonic transaction between PW.2 and PW.3 or PW.2 and the accused on 21.11.2004. Whileso, the very basis of the prosecution case that the appellant went to the shop of PW.2 and contacted him over phone and came to the shop and demanded bribe of Rs.20,000/- and demanded to give the first installment of Rs.10,000/- on or before Wednesday gets falsified.
iv) Further it is contended by the learned counsel for the appellant that the defence witness Dhanuskodi (DW.1) and the receipts issued by the Tanjore Municipality (D.W.5) falsified the evidence of P.W.2. The Iron and scrap shop stands in the name of Bose Nadar and not in the name of P.W.2.
iv) Bose Nadar is an exconvict. He was prosecuted for possession of railway property and convicted for the same. At the time of trap he had another case pending. The reason for lodging a false complaint by the P.W.2 is to wreck vengeance against the appellant.
vi) The alleged presence of shadow witness S.K.Kumaran (P.W.4) is highly doubtful. Since his deposition carries bundles of contradictions instead of corroborating evidence of P.W.2/defacto complainant, S.B Baskar (PW.9) trap laying officer.
vii) The story of the prosecution is that the accused was seeing the CBI team pushed P.W.9 to the floor and tried to fleed after throwing the contentions in his pocket in the nearby puss is unbelievable and also not proved in the manner known to law.
9. Further it is contended by the learned counsel for the appellant that the defence witness Dhanuskodi (DW.1) and the receipts issued by the Tanjore Municipality (D.W.5) falsified the evidence of P.W.2. The Iron and scrap shop stands in the name of Bose Nadar and not in the name of P.W.2. Based on the presumption and consumption the trial court has come to the conclusion that the appellant had demanded and received bribe from PW.2.
10. On the date of occurrence the accused had conversation with PW.2 over phone only to enquire about his father and not for any other purpose. A mere entry in the call details indicating that there was a telephone conversation between P.W.2 and appellant / accused on 23.11.2004 at about 5.00 p.m is not a proof for demand of illegal gratification over phone. In the absence of reliable evidence either for the first demand on 21.11.2004 or for the second demand on 23.11.2004, the court below ought not to have convicted the appellant.
11. To buttress his submission, the learned counsel for the appellant relied upon the Judgment of the Honourable Supreme Court in Meena -Vs- State of Maharastra reported in 2000 Supreme Court Cases (Cri.) 878 for the point that the evidence of shadow witness in the trap team needs corroboration and if the corroboration is wanting, mere recovery of currency notes and positive to phenolphathelin test is not enough to convict the accused.
12. To emphasis his point of motive to give false complaint against him, the learned counsel relied upon the judgment of the Honourale Supreme Court Gangakumar Srivastava -vs- State of Bihar reported in (2005) 6 Supreme Court Cases 211 wherein the Supreme Court has held that the accused has probablised the defence of false implication since he has initiated the criminal case against the complainant for theft of energy. The counsel also relied upon the judgement of the Honourable Supreme Court in Rakesh Kappor - vs- State of Himachal Pradesh reported in 2013 (1) Crimes (SC) 92 non production of the call details between the complainant and the accused, when the demand of illegal gratification alleged to have made over phone is fatal to the prosecution. The Honourable Supreme Court has held that non production of call details improbablise the case of the prosecution.
13. Per Contra, the learned the Special Public Prosecutor for CBI Cases would submit that the prosecution has proved the guilt of the accused to the Core through oral and documentary evidence. Even according to the defence, the father of P.W.2 Bose Nadar is running iron scrap business. P.W.2 is infact the person who is actively carrying on the business and P.W.3 who was in the shop on 21.11.2004. The appellant has come to the shop under the pretext of making enquiry in connection with the case registered against Thangamani on 15.11.2004. He demand illegal gratification of Rs.20,000/- forbearing from implicating PW.2 in the case registered against Thangamani. The demand of Rs.20,000/- has been spoken by P.W.2 and P.W.3 whose evidence stands unbreached. Though the transcription of the conversation could not be marked before the Court, the cassette is before the Court. The prosecution witness have spoken about the demand and acceptance of illegal gratification by the accused.
14. Further the learned Special Public Prosecutor would submit that the conduct of the accused immediately after P.W.9 introduced him as CBI Officer, throwing away the of tainted money along with the personal belongings of their accused and attempt to fled clearly proves the case of prosecution that the appellant had received the tainted money from P.W.2 as illegal gratification other than legal remuneration. Fearing the prosecution and to destroy the evidence he had thrown the tainted currency notes and other personal belongings which he had in his pant pocket. Hence submitted that the findings of the trial court has to be confirmed.
15. The point for consideration is whether the trial court findings regarding demand, acceptance and recovery is proper in the light of the explanation given by the accused through DW.1, D.W.2 and Exhibits D.1 to D.5 ?
16. The first point of attack on the impugned judgment is that the trial court has failed to consider the motive for giving false complaint against the accused. For the said purpose, the learned counsel would submit that Bose Nadar, who is the father of P.W.2, has been convicted for stolen railway property and another two cases are pending against him. When the complainant went to the shop of PW.2 to enquire in connection with the railway property theft case, he had invented the story of demand of illegal gratification and he get the services of CBI to fix him.
17. The trial court infact has considered the defence of the accused and has negatived it. The reason stated by the trial court is that, even if P.W.2 had any animosity against the appellant, the trap laying officer after receiving complaint from P.W.2 had not acted upon it immediately, but had made preliminary enquiry about the accused and only after confirming about his bad antecedents, he had proceeded further for a trap. Further the cases against the father of P.W.2 cannot be a reason for the appellant to approach P.W.2 and threaten him of foisting a case. P.W.3 who is employee under P.W.2 had clearly deposed before the Court about the visit of the appellant to the shop on 21.11.2004 and his enquiry about P.W.2. Soon after P.W.2 reached the shop, he had discussion with the accused/ appellant. After demanding Rs.20,000/- as bribe the accused has fixed the ensuing Wednesday as last date for giving bribe. He has also given his cell phone number to P.W.2 for contact. The call details which are marked as exhibit also indicates that the accused had contacted P.W.2 earlier to the day of trap. In the said circumstances, the defence of motive does not carry any merit and the trial court has rightly negatived the same.
18. The next point raised by the appellant is that the there is no proof for the first demand on 21.11.2004 or for the second demand on 23.11.2004. alleged to have been made by the appellant over phone, when P.W.2 called him on 23.11.2004 A.N. Infact in this regard, the prosecution witnesses say that at the guest house, the trap laying officer instructed P.W.2 to call the accused over phone and through speaker phone they were able to hear the conversation between the appellant / accused and P.W.2. Insofar as the first demand on 21.11.2004 is concerned, the evidence of P.W.2 and P.W.3 provides proof.
19. As far as the acceptance of the bribe money is concerned, the case of the prosecution is that the accused called PW.2 to come over to the station at 6.30 p.m. Accordingly P.W.2 along with P.W.4 went to the Railway Protection Force Station and met the accused. There was conversation between the accused, his friends and P.W.2 for nearly 20-25 minutes. P.W.2 doing Iron scrap business and already known to the accused. The conduct of the appellant and P.W.2 appears to be natural. The appellant had demanded money and received it and kept in his pocket, in which he had also his handkerchief and other personal belongings like railway ticket, working certificate, mini diary etc. The content of his pocket were recovered under Mahazhar from the bush which the appellant threw earlier. All these have happened in public place witnessed by P.W.2, 3, 4 and 7. Under such circumstances, there is no reason to disbelieve the case of prosecution witnesses regarding acceptance and recovery of tainted money. The prosecution through its witnesses had proved the demand of illegal gratification by the accused on 21.11.2004 and 23.11.2004, the acceptance of the same on 23.11.2004 and subsequently throwing it into the bush, when the trap laying officer tried to apprehend him.
20. The Prosecution having proved demand and acceptance of money beyond doubt, the presumption under Section 20 heavily falls on the accused. To rebut the presumption the accused has examined two witnesses and marked five exhibits through them. These witnesses and exhibits only goes to show that the shop at Sarboji Market, Keezhavasal, Tanjore is in the name of Bose Nadar, who is none other than the father of P.W.2 (Muthu Kameswaran). These evidence no way rebut the presumption of demand and acceptance of illegal gratification has reward to forbear himself from foisting case against P.W.2.
21. When the accused was asked to explain the incriminating evidence against him under Section 313 of Cr.P.C he has made a general statement that having been registered several cases for railway property theft he had several enemies and they have motive against him. He had also filed cases against the father of the complainant. He have enemies in his own department. Such a vague denial will not amount to rebutting presumption cast upon the accused under Section 20 of Prevention of Corruption Act. When the prosecution has proved the case with overwhelming evidence, minor discrepancies and non production of the transcription does not deserve any serious consideration. Non examination of Jeyaraj, SI of Police who assisted the trap laying officer to apprehend the accused or Chandrasekaran, who assisted the trap laying officer for preparing trap proceedings is not fatal to the case of the prosecution, since other witnesses were also present along with Jeyaraj and Chandrasekaran has spoken about the fact which they witnessed.
22. In the above circumstances, this Court finds no merits in the appeal. The clear and cogent reasonings given by the trial court below needs no interference. Hence the Criminal Appeal is liable to be dismissed.
23. In the result, this Criminal Appeal is dismissed and the conviction and sentence dated 09.05.2007 passed in C.C.No.3 of 2005 by the learned Special Judge for C.B.I.Cases, Madurai are confirmed. The Trial Court is directed to secure the appellant and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by the appellant/accused shall stand cancelled.
To:
1. The Special Judge for C.B.I.Cases, Madurai
2. The Inspector of Police SPE/CBI/ACB/Chennai
3. The Special Public Prosecutor CBI Cases, Madurai Bench of Madras High Court
4. The Record Keeper Veranacular Section Madurai Bench of Madras High Court .