Madras High Court
C.Chakkaravarthi vs State Rep. By on 12 October, 2022
Crl.A.No.241 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.08.2022
PRONOUNCED ON : 12.10.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.No.241 of 2019
C.Chakkaravarthi ... Appellant / Accused No.1
-Vs-
State rep. By
Inspector of Police,
Vigilance & Anti-Corruption,
Vellore. ... Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, praying to set aside the judgment of conviction and
sentenced awarded by the learned Special Judge and Chief Judicial
Magistrate, Vellore in Spl.C.No.4 of 2012 dated 22.04.2019.
For Appellant : Mr.P.Ezhilnilavan
For Respondent : Mr.S.Udaya Kumar.
Government Advocate (Crl. Side)
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Crl.A.No.241 of 2019
JUDGMENT
The Convicted 1st accused is the appellant herein.
2. The appellant filed the appeal challenging the conviction and sentence passed on 22.04.2019 in the above S.C.No.4 of 2012, wherein the appellant is sentenced to undergo 3 years RI and to pay a fine of Rs.2,500/- in default to undergo 2 months RI for the offence under Section 7 of the Prevention of Corruption Act and further sentenced to undergo 3 years RI and to pay a fine of Rs.2,500/- in default to undergo 2 months RI for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act. The trial Court ordered the sentences to run concurrently.
3. The brief facts leading to the filing of the charge sheet are as under:
(a) C.Chakravarthy [A1], formerly Junior Engineer [JE], Tamil Nadu Generation and Distribution Corporation Limited, Hosur and C.Ravi [A2], formerly Assistant Executive Engineer [AEE], Tamil Nadu Generation and Distribution Corporation Limited, Urban-I, Vellore are public servants as defined under Section 2(c) of Prevention of Corruption Act, 1988.Page 2 of 27
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(b) PW2-D.Mohandas, S/o.Dhannan decided to start a welding shop at Oosur in the name of his father and he visited the office of the J.E., Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), Oosur on 06.12.2010 and submitted an application to J.E. Chakravarthy [A1] seeking electricity service connection for the welding shop. PW2-Mohandas again visited the office of the J.E., on 16.12.2010, met the A1 (J.E) and A2 (A.E.E.,) and enquired about his application. The A1 handed over the application to A2. and both of them discussed among themselves. Then A2 demanded Rs.10,000/- from PW2-Mohandas as illegal gratification other than legal remuneration for himself and J.E., apart from legal fees of Rs.12,000/-.
(c) Subsequently, on 23.12.2010 at about 18.00hrs, PW2-Mohandas again met the A1, at his office and A1., asked him whether the demanded amount of Rs.10,000/- was ready for which, he replied in the negative and requested to allow him to pay the registration fees. A1 declined to allow him to pay the registration fees. Upon the request of PW2-Mohandas the A1 informed him to pay the registration fees on the next day. Accordingly, on Page 3 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 24.12.2010 PW2-Mohandas remitted the registration fee of Rs.50/- at the office of the J.E. On the same day, the J.E. informed PW2-Mohandas to pay the EMD of Rs.12,000/- within 3 days. Hence, PW2-Mohandas paid Rs.12,000/- at the office of the A1 on 27.12.2010 and obtained receipt for that.
(d) On the same day, the A1 reiterated his earlier demand and informed him that the service connection would be provided only if the said demanded amount was paid to himself and to the A2. Again PW2-Mohandas met the A1. on 10.01.2011 at about 14.30hrs. The A1 categorically informed that the service connection would be provided only if the demanded amount was paid and directed PW2-Mohandas to meet him on 11.01.2011 with the demanded amount of Rs.10,000/-.
(e) PW2-Mohandas was not willing to pay the bribe amount, he preferred a written complaint to T.G.Nandakumar, Inspector of Police on 11.01.2011 at about 09.00hrs upon which a case in Cr.No.02/2011 under Section 7 of the Prevention of Corruption Act was registered. The Inspector had arranged two official witnesses viz., K.Rameshbabu [PW3], S/o. Kannan, Page 4 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 Assistant, District Educational Office, Vellore and K.Prakash Singh [PW4], S/o.Krishnasingh, Junior Assistant, O/o. The Chief Engineer, TWAD Board, North Region, Vellore.
(f) They arrived at about 10.45hrs on 11.01.2011, phenolphthalein test was demonstrated to the official witnesses [PW3 &PW4] and Mohandas [PW2] and the amount of Rs.10,000/- brought by the PW2-Mohandas was entrusted back to him after applying Phenolphthalein powder. PW2- Mohandas was instructed to meet the J.E.[A1], at his office along with official witness PW3-Rameshbabu and further instructed that the bribe money should be handed over only if demanded. PW2-Mohandas was asked to exhibit a signal on coming out of the office by way of removing his wrist watch from his left wrist and worn it at the right wrist if the accused accepted the bribe amount.
(g) The trap team was waiting in the V&AC office itself as it was ascertained that the J.E.[A1], did not come to the office till 15.00hrs. When PW2-Mohandas contacted the J.E.[A1], through mobile phone, the J.E.[A1], informed that he was at the office of the A2, he would come to his office Page 5 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 within ½ and hour and asked him to wait at his office. Accordingly, the trap team went to Oosur at about 16.00hrs and PW2-Mohandas along with official witness PW3-Rameshbabu was sent to meet the A1. As A1., was not there they waited for his arrival. As A1., did not come for a long time PW2- Mohandas made enquiry with a person available there about when A1 would come to the office.
(h) The said person contacted the J.E.[A1], through office phone and informed them that the J.E.[A1], asked them to come to the office of the A2 Vellore. Hence the trap team came near the office of AEE, Vellore at about 19.30hrs., parked the vehicles at a distance, alighted PW2-Mohandas and PW3-Rameshbabu and asked them to go to the office of the AEE to meet the accused. The other official witness [PW4] and the V&AC team were at a discreet distance keeping a watch.
(i) PW2-Mohandas and PW3-Rameshbabu went inside the A2 office and met A1. The A1 asked PW2-Mohandas whether he had come with the demanded amount. When PW2-Mohandas told him that he had come with Rs.10,000/- as demanded, A1 told him that the amount would be received Page 6 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 after the arrival of A2. As, he did not come even after long time, A1., left the office in a motor cycle stating that he would come with A2. At about 8.30pm, A1., came with A2. The A2 asked PW2-Mohandas whether he had brought the money. When he answered in the positive and handed over Rs.10,000/- to AEE[A2], the AEE asked the JE [A1] to receive the amount. As per the direction of AEE [A2], the JE [A1] received the amount from PW2- Mohandas, counted it and part with Rs.5,000/- to the AEE [A2].
(j) The AEE [A2] received it with his right hand, counted it, put in his shirt pocket and left the office in his motor cycle. The JE [A1] took a brown cover from his pocket, kept the remaining Rs.5000/- in it put it in his motor cycle and asked PW2-Mohandas and PW3-Rameshbabu where they had to go. When PW2-Mohandas informed him that they had to go to Oosur, the JE [A1] took them in his motor cycle stating that he would drop them at the bus stand.
(k) After the prearranged signal, given by PW2-Mohandas, the Page 7 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 Inspector of Police and his team along with official witness Prakash Singh [PW4] followed them in the Government vehicle and intercepted them near Gandhi statue, Old Bus Stand, Vellore. The Inspector of Police after ascertaining the happenings from PW2-Mohandas and PW3-Rameshbabu enquire the JE [A1]. He admitted the receipt of Rs.10,000/- from PW2- Mohandas and added that an amount of Rs.5,000/- was handed over to AEE [A2] and the remaining amount of Rs.5,000/- kept in his motor cycle box.
(l) The JE [A1] stated that after receiving the amount AEE [A2] left for his native place Chinna Anaikattu in his motor cycle. The motor cycle box of the JE [A1] was searched with the assistance of the official witnesses and a brown cover containing Rs.5,000/- was recovered. The serial numbers of the currency notes were compared with the serial number noted in the entrustment mahazar and found tallied. In the same motor cycle box apart from the said Rs.5,000/- an amount of Rs.76,000/- was also found. When enquired J.E.[A1], stated that he borrowed the said amount of Rs.76,000/- from one Anandakumar [PW7] working in TNEB office, Ariyur for Page 8 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 educational fees of his daughter. As his explanation was not believable the amount was also seized.
(m) The trap team with JE [A1] processed towards Chinna Anaikattu in search to AEE [A2] and when nearing Abdullapuram at about 9.45pm PW2- Mohandas and JE [A1] identified the AEE [A2] who was traveling in a motor cycle. When enquired the AEE [A2] admitted that he received Rs.5,000/- from JE [A1] but claimed that he received the amount from JE [A1] only as a loan. The trap team along with A1 & A2 came to the office of the AEE.
(n) The phenolphthalein test was conducted on the fingers of both hands of the JE and AEE. The test proved positive. The AEE handed over Rs.5,000/- from his shirt pocket and the serial numbers of the currency notes were compared with the serial numbers noted in the entrustment mahazar and found tallied. The shirt pocket of the AEE [A2] was subjected to Phenolphthalein test and the test proved positive. The resultant solutions were bottled and sealed. The Chemical Analysis Report [Ex.P8] of Page 9 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 S.Rajaram [PW9], Junior Scientific Officer, Tamilnadu Forensic Sciences Laboratory, Chennai-4, confirms that the solutions contained both sodium carbonate and phenolphthalein.
4. The prosecution examined twelve witness viz., PW1 to PW12 and marked exhibits Ex.P1 to P9 and material objects M.O.1 to M.O.7 and after trial the learned Special Judge cum Chief Judicial Magistrate, Vellore, convicted the appellant/A1 as stated supra and hence the appeal.
5. Heard the learned counsel for the appellant and the learned Government Advocate (Crl.Side) appearing for the respondent police.
6. The case of the prosecution in brief is that the appellant/A1 was working as Junior Engineer at Oosur, TNEB at the time of occurrence. The A2-C.Ravi was working as Assistant Executive Engineer, Urban-1, Vellore. While being so, PW2-the defacto complainant [Mohandas] approached the appellant/A1 on 06.12.2010 and submitted an application to get 3 phase Page 10 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 electricity connection for the welding shop belonging to his father Dharman. On 16.12.2010 when the PW2 met the appellant/A1 at his office to ask about his service connection, at that time A2 who was working as Assistant Executive Engineer was also present along with the appellant. The said AEE demanded Rs.10,000/- from PW2 as bribe apart from the EMD amount of Rs.12,000/- and registration fee of Rs.50/-. On 24.12.2010 PW2 met the appellant/A1 and paid the registration fee of Rs.50/- at that time the appellant never demanded any amount. Again on 27.12.2010, according to prosecution the appellant/A1 demanded Rs.10,000/- as bribe from PW2. Therefore, on 11.01.2011 at 9.00am PW2 lodged a complaint [Ex.P2] before the respondent police. The respondent registered a case against the appellant/A1 for an offence under Section 7 of Prevention of Corruption Act and subsequently it was altered into Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
7. The suggestive case of the defence is that the amount seized from the accused is borrowed from one Anandkumar [PW7] for the purpose of Page 11 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 payment of educational fees to the daughter of A2 and the PW2 defacto complainant has misunderstood that he has to pay for erection of the pole, as a bribe amount and indulged in fighting and enraged in enmity, lodged the complaint.
8. The A2 is the Assistant Executive Engineer-Ravi died pending the trial and hence, charges are abated. The appellant/A1-Chakravarthy was working as a Junior Engineer at Hosur, TNEB [now TANGEDCO].
9. The criminal law was set into motion by filing of Ex.P2-complaint by PW2-Mohandass on 11.01.2011 at 9.00am and Ex.P9-FIR was registered in Cr.No.2 of 2011 under Section 7 of the Prevention of Corruption Act. After the investigation, final report is filed by altering the Section into Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
10. As per the prosecution case, there were four demands, viz.,
(i) The first demand was on 16.12.2010 by A2.
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(ii) The second demand was on 23.12.2010 by A1
(iii) The third demand was on 27.12.2010 by the A1 in his office.
(iv) The last and fourth demand was on 10.01.2011 by A1. Ex.P1-complaint and Ex.P9-FIR was on 11.01.2011 and the trap was on the same day. Even according to prosecution, on 16.12.2010, an amount of Rs.10,000/- was demanded by the deceased A2 and the appellant/A1 never demanded any amount from PW2 on 16.12.2010
11. PW2 in his chief examination has stated that he went to the appellant's office after two days from 16.12.2010. Probably the date must be 18.12.2010. On that day according to PW2, the appellant demanded Rs.10,000/- from PW2. But in his complaint he has stated that on 23.12.2010 by 6pm, the appellant/A1 demanded bribe for him. PW2 not reiterated this demand during his chief examination.
12. Further, PW2 in his chief examination has stated that on Page 13 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 16.12.2010 he went to the appellant's office and at that time A2-C.Ravi demanded Rs.10,000/- from him. After two days, he went to EB office and paid the registration fee of Rs.50/-. On that day the appellant further informed him to pay Rs.12,000/- official fees within three days as per EB rules. PW2 claims that the very next day he paid Rs.12,000/- and he voluntarily told the appellant/A1 that he would pay Rs.10,000/-. Thereafter on 11.01.2011 he lodged this complaint. Therefore, there was no demand on 27.12.2010 as per the chief examination of the complainant PW2.
13. In his chief examination PW2 has never stated that on 10.01.2011 by 2.30pm, the appellant/A1 demanded a sum of Rs.10,000/- from him. Therefore the appellant/A1 never demanded any amount on 16.12.2010, 23.10.2010, 27.10.2010 and 10.01.2011. If really there were four demands, nothing prevented PW2 to depose before the Court about the four demanded dates and times. According to PW2's chief examination 16.12.2010 demand was made by A2. PW2 in his chief examination has stated that the appellant demanded on 18.12.2010 and on 19.12.2010. PW2 voluntarily told the Page 14 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 appellant/A1 that he would give Rs.10,000/- to him [A1]. Therefore, there is a total contradiction between Ex.P2 complaint and PW2's chief examination. In Ex.P2 complaint he has stated that the appellant/A1 demanded bribe from him on three different dates. But in his chief examination, he had not even mentioned one demanded date correctly. Therefore, with regard to demand, the PW2's evidence should be discarded.
14. This Court also noticed that while the first demand was made on 16.12.2010, Ex.P2-complaint was lodged on 11.01.2010 viz., with a delay of 26 days. Counting from the last demand, there was a delay of 2 days.
15. It is needless to say the demand of illegal gratification is Sin Qua Non for constituting an offence under the Prevention of Corruption Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in this case is not reliable unless there is evidence to prove payment of bribe or to show the money was taken voluntarily as bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt in Page 15 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
16. PW2 in his cross examination has deposed that on 11.01.2011 by 7 or 7.30pm he along with PW4 was waiting in the appellant's office. At that time the appellant entered into the office. PW2 claims that he has given Rs.10,000/- to the appellant/A1 at 7.30pm. At that time the deceased A2 was also there. He gave the amount in the presence of PW4. Further PW2 deposed that the bribe amount was recovered from the pant pocket of the appellant. He does not know in which side pant pocket the amount was recovered. But PW10-TLO in his cross examination has stated that he recovered the bribe amount from his two wheeler side box. On the contrary PW3, in his cross examination has deposed that PW2 tried to give the bribe amount to A2. The A2 refused to receive the amount. Therefore, PW2 put the tainted currency notes in a nearby motor cycle box. When the Vigilance police questioned PW2 about the tainted money, he only said that the amount was in the side box of the two wheeler. Therefore, there are many different Page 16 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 versions with regard to acceptance. Therefore, the acceptance theory is doubtful.
17. PW3 in his cross examination has deposed that at first he met PW2 at the EB office. PW2 told him that in the EB office they told that he should pay further 10,000/- to 12,000/- rupees for Service Connection charges, Pole charges and Meter Caution deposit. Therefore, he lodged the above complaint.
18. PW3, in his cross examination has further stated that when PW2 gave money to A2 he refused to receive the amount and therefore, he put the money in the side box of a motor cycle. Likewise PW4 in his cross examination has stated that the appellant/A1 went to AEE's office by 9pm and he told that PW2 should not disturb him in the night times and by saying this he went away. Thereafter the Vigilance Police went from the office and chased the appellant/A1 and AEE/A2 and came to the AEE's office by 10.30pm. At that time, the police forced the appellant/A1 to take the tainted Page 17 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 brown cover and after taking the said cover, samples were taken. He never seen A2 on that day.
19. PW3 in his cross examination admitted that when he came to the Court for chief examination, the police gave him the statement and forced him to depose as it is in the statement. Likewise, PW4 in his cross examination deposed that when he came to Court during chief, the police gave him a typed statement and forced him to depose as it is in the statement. Therefore, the chief examinations deposed by PW3 and PW4 should be discarded in total.
20. Therefore, in view of the discrepancies as noted in the evidence of the decoy / officiating witnesses viz., PW3 and PW4 in the cross examination, I find that their evidence is totally unsafe to rely upon in view of the answer elicited in the cross examination as extracted supra.
21. Admittedly, the PW2 lodged the complaint on the premise that there was a demand of Rs.10,000/-. In the cross examination, it is elicited that Page 18 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 PW2 first paid Rs.50/- as registration fee and subsequently on the next day he paid Rs.12,000/- for EMD. PW2 thought that the amount of Rs.12,000/- was sufficient enough to get industrial service connection. After paying the above said Rs.12,000/- he fought with the appellant/A1 that he would not pay further amount. He thought that the accused were cheating him and therefore, he got angry and lodged this complaint. It is pertinent to note here that after trap PW2 further paid Rs.14,140/- to get industrial service connection.
22. At this juncture, it is relevant to mention that PW8-Soundararajan, Divisional Executive Engineer, in the cross examination has categorically stated that as under
“CNu; gphpt[ JE rf;futu;jj ; paplkpUe;J bgwg;gl;lJ/ ru;tP!; fbdf;c&d; bfhLg;gjw;F Kd;g[ ru;tP!; fbdf;c&d; bgWk; egu; tsu;rr ; p fl;lzk;
kPll
; u; fhg;gl
P ;L fl;lzk; kpd; ,izg;g[ fl;lzk;
Mfpait U:/7000-?Kk; fk;gk; eLtjw;F xU
fk;gj;jpw;F U:/7140-?a[k; fl;lntz;Lk;/ mij
fl;odhy; jhd; ru;tP!; bfhLg;nghk; vd;why; rhp/” Page 19 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019
23. Further, PW7-Anandkumar in the chief examination has deposed as under:
“rk;gtj;jpw;F Kd;g[ rf;futu;jj ; p mtu;fs; jd;
kfspd; fy;Y}hp fl;lzj;jpw;fhf fz;za;adplk;
U:/1.00.000-? Fld; nfl;oUg;gjhf brhd;dhu;/ nkYk;
fz;za;ad; gzk; bfhLj;jhy; bfhdz;L te;J
vd;dplk; bfhLf;Fk;go brhd;dhu;/ fz;za;ad;
09/01/2011 md;W U:/76.000-? vd;dplk; bfhLj;J
rf;futu;jj
; paplk; bfhLf;Fk;go brhd;dhu;/
rf;futh;jj
; paplk; ngrp bfhs;tjhf brhd;dhu;/
md;nw 11/01/2011 md;W me;j gzj;ij
rf;futj;jpaplk; bfhLj;Jtpl;nld;/”
24. Thus, I find that even before the alleged 4th demand date 10.01.2011, the order of sanction for EB connection was passed i.e. on 15.12.2011 itself. PW1 could depose that it was not communicated to him.
Admittedly, the entrustment mahazar was not signed by Prabahar. The same was admitted by the PW11-Investigation Officer and also, admitted by decoy witnesses P.W.3 and P.W.4 in their respective cross examination could categorically lend support to the suggestive case of the defence that 'all is not well' with prosecution of the accused/A1 and A2.
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25. The evidence of PW7-Anand Kumar in chief is duly corroborated in the answer elicited in the cross examination of PW3-Ramesh Babu that “nkYk; me;j bgl;oia ghu;j;jnghJ bkhj;jk;
U:/76.000-? ,Ue;jJ/ mjpy; 59 Mapuk; U:gha; nehl;Lf;fSk; 34 IE}W U:gha; nehl;Lf;fSk; ,Ue;jJ/ me;j gzj;ija[k; ifg;gw;wg;gl;lJ/ JE rf;futu;j;jpaplk; me;j gzk; Fwpj;J nfl;lnghJ mhpa{u; EB Officeapy; gzpg[hpa[k; mtUila ez;gu;
xUthplkpUe;J mtu; kfs; fl;Ltjw;fhf th';fpajhf
Twpdhu;/ (vjphp jug;gpy; Ml;nrgpf;fg;gl;lJ/ Ml;nrgiz
gjpt[ bra;ag;gl;lJ)
26. In the cross examination of PW3, it is deposed as follows:
“eh';fs; 10/30 EB kzpf;f MgPRf;F nghFk;nghJ
nkhfd;jh!; m';F Vw;fdnt te;jpUe;jhu;/ md;W
nkhfd;jhi! Kjd; Kjyhf 10/30 kzpastpy; EB
mYtyfj;jplk; jhd; ghu;j;njd; vd;why; rhp/ Service
Connection Charges, (Poll Charges), Meter Caution Deposit
Mfpatw;iw nru;jJ
; U:/10.000-?apypUe;J U:/12.000-? tiu
MFk;/ mtw;iw fl;lntz;Lbkd;W EB mYtyfj;jpy;
nfl;ljhy; g[fhu; bfhLj;jjhf nkhfd;jh!; Twpdhu;/” Page 21 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019
27. Therefore, I find from the specific evidence the official witness- P.W.7 Anandakumar that he had collected a sum of Rs.76000/- from one Kannaiyan Foreman in TNEB, Cheyambakkam for handing over the same to A1-Chakravarthy for payment of college fees of Rs.76000/- and the very same fact has been spoken to by the A1 immediately after the trap proceedings as extracted supra and hence, I find that the amount said to have been seized from the side box of the two wheeler of the A2 amounting to Rs.76000/- is collected by the PW7-Anandkumar from one Kannaiyan, which was paid to A1 for the purpose of educational fees of the daughter of the A1, which is said to have been deposited in the Court of Chief Judicial Magistrate Court, has to be ordered to be released to the appellant/A1. The evidence of PW2 regarding the demand has been discussed in the preceding paragraphs and with regard to the accused, there is inconsistency and thus, the evidence of PW2, is totally unsafe for want of reliability.
28. With regard to the alleged acceptance and recovery, the answer elicited in the cross examination of decoy witnesses viz., PW3 and PW4 runs Page 22 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 contrary to the version of PW2 on vital factors. The explanation offered by the A1 immediately after the trap proceedings in the presence of PW4 duly supports the evidence of PW7-Anandakumar as extracted supra and hence, I find that the trap proceedings are projected as if it has been done in the manner known to law, whereas, in view of the answer elicited in the cross examination of PW3 and PW4, I find that the trap proceedings are not conducted in the manner known to law.
29. It is the specific evidence of PW3 and PW4 that money was planted in the box of the two wheeler of the A2 by PW2, destroys the main plank of the prosecution and hence, I find that the version of PW2 is found to be at material contradiction on material particulars touching upon the charge under Prevention of Corruption Act with that of the admission of the PW3 and PW4. Therefore, I find that it is totally unsafe to rely on the evidence of PW2.
30. In view of the previous enemity and the misconception of fact of Page 23 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 deposit of amount for the pole, as spoken by PW3 and PW5 Sundararajan, Executive Engineer and the suggestive case appears to be more probable in view of the answer elicited from the cross examination of PW3, PW4 and PW8 coupled with the chief examination of PW7 and PW8 and hence, I find that the prosecution theory is bristled with infirmities and the alleged trap proceedings are not conducted in the manner known to law and it appears that the PW2 wanted to plant the money in the bike of the A1 and A2 (now deceased) and the alleged recovery are not made in the manner known to law.
31. Further, there are lot of inconsistencies in the date of demand and the alleged demand and obtainment of the bribe amount is also not supported by PW3 and PW4. Recovery of the tainted amount is also surrounded with sea of suspicion. Hence, this Court is of the considered view that the prosecution has not proved the foundational facts and merely it is not enough that some currency notes were handed over to the public servant to make it as acceptance of gratification, but the prosecution has further duty to prove that what was paid amounted to gratification. Mere recovery of tainted amount is not sufficient to convict the accused when the substantial evidence in this Page 24 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 case is not reliable and in the absence of any positive evidence regarding the alleged demand and acceptance and thus, this Court is of the considered view that the conviction and sentence laid by the trial Court is unsustainable in law.
32. This Court also notices that there is a delay in cross examination of PW3 and PW4 and as rightly pointed out by the learned Chief Judicial Magistrate, the trial Court for want of judicial officer, the case was not taken up and hence, cross examination at the belated stage does not affect the veracity and reliability of the PW3 and PW4 and this Court is of the considered view that the theory of the prosecution is doubtful while the defence case is more probable and inclined to interfere with the conviction and sentence passed by the trial Court.
33. In the result, the conviction and sentence imposed upon the appellant/A1 vide judgment dated 22.04.2019 by the learned Sessions Judge/Chief Judicial Magistrate, Vellore in Spl.Case No.4 of 2012, is set aside and the Criminal Appeal is allowed. Fine amount is ordered to be refunded. Bail bond stands cancelled. The sum of Rs.76,000/- recovered and Page 25 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 deposited by the trial Court, is ordered to be paid to the appellant/A1.
12.10.2022 ars Index: Yes / No Internet: Yes To
1. The Special Judge cum Chief Judicial Magistrate, Vellore.
2. Inspector of Police, Vigilance & Anti-Corruption, Vellore.
3.The Public Prosecutor, High Court, Madras.
Page 26 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.241 of 2019 RMT. TEEKAA RAMAN, J.
ars Judgment made in CRL.A.No.241 of 2019 12.10.2022 Page 27 of 27 https://www.mhc.tn.gov.in/judis