Madras High Court
D.Balaganapathi vs State Rep. By on 2 September, 2022
Crl.A.No.746 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.07.2022
PRONOUNCED ON : 02.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.No.746 of 2015
D.Balaganapathi ... Appellant / single Accused
-Vs-
State Rep. By
Inspector of Police,
Vigilance and Anti-Corruption Department,
Salem at Namakkal.
Crime No.1/AC/98 ... Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, praying to set aside the judgment of dated 02.12.2015 in
Special C.C.No.7 of 2022 passed by the learned Special Judge/Chief
Judicial Magistrate at Namakkal.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.S.Udaya Kumar.
Government Advocate (Crl. Side)
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Crl.A.No.746 of 2015
JUDGMENT
Convicted sole accused is the appellant herein.
2. This Criminal Appeal is filed against the conviction imposed on him by sentencing him to undergo 5 years Rigorous Imprisonment with fine of Rs.25,000/- in default to undergo two months Simple Imprisonment for the offence under Section 7 of the Prevention of Corruption Act, 1988, and to undergo 5 years Rigorous Imprisonment with fine of Rs.25,000/- in default to undergo two months Simple Imprisonment for the offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 imposed in the judgment dated 02.12.2015 made in Special C.C.No.7 of 2002 on the file of the learned Special Judge/Chief Judicial Magistrate, Namakkal.
3. The respondent police filed a final report before the learned Special Judge cum Chief Judicial Magistrate, Namakkal alleging that
(i) D.Balaganapaty, the appellant herein who worked as Village Page 2 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 Administrative Officer, Tiruchengode Taluk, Namakkal District is a public servant.
(ii) One V.Palanivel S/o.Karunji @ Varudhan, residing at Akkalampatty Village, Tiruchengode Taluk, Namakkal District is cultivating his share of lands as per the family partition deed effected on 28.01.1992 between himself and his father and brothers and his father died on 06.06.1996. The beneficiaries will be selected by the concerned village panchayats to enjoy the subsidy in the “Ganga Kalyan Yojana” Scheme and one R.Mohan, President, Akkalampatty Village Panchayat told to the said Palanivel about the said scheme and asked him to bring the extracts of chitta and adangal to get the subsidy in that scheme for digging a borewell in his lands.
(iii) The said Palanivel met Akkalampatty Village Administrative Officer/the accused herein on 17.12.1997 at his office at Velagoundampatty and requested for Patta transfer and issue of extracts of chitta and adangal to Page 3 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 enable him to avail subsidy in digging a bore well and the said Village Administrative Officer/accused demanded Rs.1000/- as illegal gratification for getting a separate patta in his name and for furnishing concerned extract.
(iv) The said Palanivel presented a petition on 17.12.97 to Tahsildar at Tiruchengode Taluk office requesting transfer of patta on his name and for issue of extracts of chitta and adangal.
(v) A.Kulandai Velu, the Head Quarters Deputy Tahsildar, who received the petition from the said Palanivel, made on endorsement, in the petition to Revenue Inspector, Manikkampalayam for enquiry and report and also gave the petition to Palanivel with instruction to meet Revenue Inspector. Accordingly, he met the Revenue Inspector, S.Ravi at V.A.O's office at Velagoundampatty and handed over the application and since V.A.O/accused was not available at that time, the said S.Ravi, R.I instructed Palanivel to convey the message to VAO and asking VAO to meet him with village accounts.
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(vi) On 19.12.97 at about 6A.M the said Palanivel met VAO/accused at his house, and VAO told to Palanivel that he received the application from Revenue Inspector and again demanded Rs.1,000/- from the said Palanivel for forwarding his application. When Palanivel expressed his difficulties , the VAO/accused reduced his demand to Rs.600/-.
(vii) Again on 06.01.98 at about 9A.M when the said Palanivel met the VAO/accused at Velagoundampatty accidentally, the accused reiterated his earlier demand. Later on 7.1.98 when Palanivel met the accused at 10A.M at VAO's office in Velagoundampatty, the VAO/accused again reiterated his earlier demand and when he explained his difficulties the said VAO/accused suggested to pay the amount in two instalments at the rate of Rs.300/- each.
(viii) Palanivel was not willing to pay the amount to the said VAO/accused as bribe and hence, he prepared an oral complaint on 8.1.98 at Page 5 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 16.30 hrs in the Salem Vigilance and Anti-Corruption Detachment and a case was registered in Cr.No.1/AC/98 under Section 7 of Prevention of Corruption, Act 1988.
4. The trial Court framed the charges under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
5. During the trial, the prosecution had examined PW1 to PW17 and marked Ex.P1 to P20 and M.O.1 to M.O.7. No document has been filed on behalf of the accused.
6. After trial, the learned Special Judge/Chief Judicial Magistrate held that charges are proved, convicted and sentenced the accused as stated supra and hence, the appeal.
7. Learned counsel Mr.Manokaran appearing for the appellant/accused would contend that the evidence of PW2-defacto Page 6 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 complainant cannot be accepted since he has failed to satisfy the material aspect of demand. PW2 had allegedly approached the accused to get the revenue documents to avail “Ganga Kalyan Yojana” Scheme, but the fact remains that the scheme had lapsed before the end of December 1997. PW2 had developed some kind of animosity against the appellant/accused since he did not agree to issue patta. Therefore, the accused intimidated to issue patta in the name of the wife of PW2. The evidence of PW3- trap witness has shown extraordinary interest in the prosecution which is evident from his evidence. Even otherwise, he has spoken only about the alleged recovery and not said anything about demand and acceptance.
8. Learned counsel for the appellant/accused further contended that the material variations elicited in the cross examination of PW2 and PW3 have been lightly brushed aside by the trial Court. The burden of proof upon the accused against whom the presumption is made under Section 20 of the Act is not akin to the burden placed on the prosecution to prove the case beyond reasonable doubt. PW2 is a particeps criminis in respect of the Page 7 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 crime committed and, thus, he is an accomplice. Therefore, the Court has to consider the degree of credibility and then look for corroboration if necessary as a rule of prudence.
9. Learned counsel for the appellant/accused also contended that the accused was having some problem in hearing and speaking, but, his physical deformity has been used adversely against the interest of the appellant. Lack of communication, understanding and physical disability were the cause for the false implication.
10. It is also contended that in the absence of any demand and acceptance of money for doing a favour in discharge of his official duties, mere recovery of money from the accused by itself is not enough. The explanation given by the appellant/accused under Section 313 of Cr.P.C. are very plausible and his probable defence has not been considered properly. The trial Court has miserably failed to consider the material contradictions between the evidence of PW2 and PW3. The material variations between Page 8 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 their version would ipso facto prove the false accusations made against the appellant/accused. Hence he prayed for acquittal of the appellant/accused.
11. Learned Government Advocate (Crl.Side) made submissions in support of the judgment of the trial Court.
12. After hearing the rival submissions and perusing the records and also taking note of the dates and events submitted by the accused, this Court finds that the appellant/accused was working as a Village Administrative Officer of Akkalampatty Village in Namakkal District. According to the complainant, the accused demanded Rs.2000/- towards bribe to issue chitta and adangal extracts, besides to issue patta in his name, but, after persuasion by PW2 he had agreed to receive Rs.300/- to issue the above documents.
13. It is alleged that the complainant made a written complaint dated 08.01.1998 (Ex.P2) to the respondent/police alleging that the accused had demanded bribe of Rs.300/- Ex.P1-complaint was forwarded to PW15 who Page 9 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 registered Ex.P18-FIR and called PW3 to act as the trap witness. A pre-trap demonstration was arranged wherein a solution of sodium carbonate was prepared in a glass. On dip of plain currency notes in the solution, colour of which did not change. Thereafter, another set of currency notes containing phenolphthalein powder was dipped in that solution, colour of the solution turned pink. Ex.P3-pre-trap mahazar was prepared. Numbers of the currency notes were recorded. Thereafter phenolphthalein powder was smeared thereon and the notes were given to the complainant. The complainant was instructed and guided as to how the trap would be arranged and as to the role, which he was required to play in the trap proceedings. The trap team proceeded to Akkalampatty. The trap, PW2 gave currency notes of Rs.300/- [M.O.1] to the appellant. Thereafter, the complainant transmitted a signal to the trap party who rushed to the spot and got hands of the appellant/accused. The numbers of the seized currency notes were compared with the numbers mentioned in the pre-trap mahazar which were found to be similar. A solution of sodium carbonate was prepared and the fingers of the appellant/accused were dipped in the Page 10 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 solution, colour of the solution turned pink. Ex.P17 is the Chemical Analysis Report by P.W.17-Kasturi Bai, the Scientific Officer. Thereafter, Ex.P7-trap mahazar was prepared.
14. After completion of the investigation, sanction [Ex.P1] for prosecution against the appellant/accused was obtained and charge sheet was filed. After trial, the appellant/accused was convicted and sentenced as above. Feeling aggrieved against the conviction and sentence imposed in the judgment dated 02.12.2015, made in Special C.C.No.7 of 2002, this appeal is filed.
15. The trial Court had convicted the appellant/accused as under
Charge Offence Sentence imposed Charge 1 Section 7 of PC Act, 1988 5 years R.I + fine of Rs.25,000/- i/d 2 months SI Charge 2 Section 13(2) r/w 13(1)(d) 5 years R.I + fine of Rs.25,000/- i/d 2 months of PC Act, 1988 SI
16. As per the prosecution theory, the accused has demanded bribe on five occasions. First demand was on 17.12.1997; the second demand was Page 11 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 on 19.12.1997; the third demand was on 06.01.1998; the fourth demand was on 07.01.1998; the fifth demand and the trap was on 09.01.1998.
17. The suggestive case of the defence as could be seen from the cross examination of the prosecution witnesses is that the alleged demand said to have been made by the accused from the PW2 (defacto complainant) is for availing the subsidy under “Ganga Kalyan Yojana” Scheme. But the said scheme has been withdrawn by the government as early as on December 1997 and therefore, the projection by the prosecution that there was a demand for issuance of patta in the year 1997 and 1998, does not arise and also attributed that the complaint (Ex.P1) is tainted with mala fide since the accused had recommended for the rejection of application for the free house patta submitted by the PW2 as the land is classified as 'Road Porambokke' and with regard to the explanation that was offered by the accused that the amount given by PW2 received by the accused is representing the travelling expenses met out by the accused between the Village Administrative Office and the Taluk office to arrange for a patta.
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18. At the risk of repetition, however for the sake of clarity, it is to be stated that on 17.12.1997, PW2 had approached the accused/VAO to get patta, chitta adangal etc., to get subsidy for erecting bore well in his lands, wherein the accused demanded Rs.1000/- as bribe amount; On 19.12.1997, PW2 went to the house of the accused, who demanded Rs.1000/- as bribe and later reduced to Rs.600/-; On 06.01.1998, PW2 met the accused on the way to Velagoundanpatty, wherein again the accused demanded money; On 07.01.1998, PW2 went to the office of the VAO to pay kist and there also the accused demanded bribe of Rs.600/-, further, the accused had suggested PW2 to pay Rs.600/- in two instalments; On the same day i.e. 07.01.1998, PW2 went to the office of V&AC, Salem and met PW15 (I.O.) who instructed him to come on the next day; Accordingly, on 08.01.1998, PW2 went to the office of V&AC, Salem and gave a statement, which was reduced in the form of complaint-Ex.P2 and the same day itself FIR in Crime No.1/AC/98 was registered by PW15 and the same marked as Ex.P18; Finally on 09.01.1998, at about 10.30 am, a trap team came to the Page 13 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 VAO office, PW2 was accompanied by a trap witness (PW3) and at 11.15am, the accused was trapped and Ex.P7-Mahazar was prepared.
19. On perusal of the evidence of PW2, the defacto complainant and PW3, officiating witness who had accompanied PW2 at the time of trap, I find that material variation has been elicited in the cross examination. At the outset, the PW2 had approached the accused to get patta, chitta adangal for getting subsidy for erecting bore well. The PW10-Mohan, the President of the village panchayat in the cross examination has admitted that the scheme was abandoned before December 1997. The PW14-Ponnusamy, the Block Development Officer had deposed that the above said scheme was given up in the middle of 1997 and it has been intimated to the President of all the Village Panchayats about the dropping of the scheme and hence I find that the version of the PW2 with regard to the reason for approaching the accused falls to ground as the same is found to be material contradiction with the revenue witnesses PW10-Panchayat President and PW14-Block Development officer and thus, the alleged demand made by the accused is Page 14 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 highly improbable and the version of PW2 cannot be believed in view of the evidence of PW10-Panchayat Board President and PW14-BDO.
20. On the point of demand and acceptance, after going through the evidence of PW2, PW3 and trap laying officer, PW15-Somasundaram, I find that as per Ex.P2-complaint, the defacto complainant [PW2] has set the criminal law into motion on 07.01.1998 and met the PW15-Investigation Officer, who had instructed him to come on the next date and it was given in the form of a complaint on 08.01.1998. Based upon the Ex.P2-complaint, the Ex.P18-FIR came into force and the trap is alleged to have been conducted on 09.01.1998.
21. On a bare perusal of Ex.P2-Complaint, it refers to demands made on 17.12.1997, 19.12.1997, 06.01.1998 and 07.01.1998 viz., demands on four occasions. However PW2 in the witness box has deposed about only two demands. It remains to be stated that the demand amount as bribe as per Ex.P2, is Rs.1000/- on the first demand subsequently, said to have been Page 15 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 reduced to Rs.600/- at the time of the 4th demand, whereas in the witness box, PW2 had deposed Rs.2,000/- as the first demand in his evidence, assumes significance. Not only the dates of alleged demand but also the quantum of demand also varies considerably, assumes significance.
22. After going through the chief and cross examination of PW2, I find that PW2 has not whispered that the accused has made a demand of money towards illegal gratification or bribe. No specific words of demand has been found in the evidence.
23. The learned Government Advocate would contend that the evidence spoken to by the PW2 is of local language and therefore, the technical meaning or grammatical version of demand should not be adopted.
24. After reading the averments in Ex.P2-Complaint as spoken to by PW2 and PW15-Investigation officer, the contents of the complaint does not match with the version of PW2 in the witness box, on alleged date of Page 16 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 demand and the quantum of the demand. Furthermore, it remains to be stated that the specific case of the defacto complainant-PW2 both in his complaint-Ex.P1 as well as, his deposition as PW2 in the witness box, is that the demand was made only for the purpose of giving patta, chitta and Adangal etc. to enable the PW2 for the purpose of availing the subsidy under “Ganga Kalyan Yojana” Scheme. The said scheme was not there on the date of the alleged demand as spoken to by PW2, which is clearly corroborated by the evidence of PW10-Panchayat Board President and PW14-BDO and hence, I find that the foundation of facts as stated in Ex.P1- complaint and as spoken to by PW2, reflects in the charge sheet, appears to be more shaky and creates a doubt in the mind of the Court as to for what purpose the allegation of demand has been made against the accused.
25. At this juncture, the answer elicited from the cross examination of PW2, PW10, PW11 and PW16 by the defence to substantiate his defence case that there is a strong motive for the PW2 to level a false implication against the accused, is discussed infra.
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26. In cross examination, PW2 has admitted that he had applied for house patta. In respect of the same, the PW2-Thasildar had rejected his application to get the house patta based upon the field report given by the accused-Village Administrative Officer, wherein the accused has stated that as per the revenue records, the patta for the land sought for by the PW2 is shown to be a 'Road Porambokke', and accepting the same, the PW11- Tahsildar had rejected the patta for the house sites for PW2, assumes significance.
27. Yet another incident is that after rejection of the patta by PW11- Tahsildar, based upon the field report of the accused Village Administrative Officer, the PW2 along with local people had issued pamphlets for observing road block against the Village Administrative Officer/accused since he has given a report that the patta sought for by the PW2 along with others are classified as 'Road Porambokke' as per the revenue records and which was accepted by the PW11-Tahsildar and thus, rejected the patta Page 18 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 application and hence, having agitated by the action of the accused and PW11, the defacto complainant-PW2 had mobilised mass and conducted a road block.
28. PW11-Thasildar has clearly deposed and that PW2 and his friend Raja has got a strong motive against the accused in view of the report of the VAO/accused, which is the basis of the rejection of the patta claimed by the PW2 and others. So also PW16-Girimurugan, Inspector of Police, has admitted that the patta claimed by the PW2 was rejected based upon the report of the accused and road block was also organised by the PW2 and hence, in view of the admission by PW2, PW10, PW11 and PW16, I find that the suggestive case of the defence that the PW2 has a strong ill-will and motive for false implication of the accused is more probable and hence, the evidence of PW2 has to be evolved in the proper prospective.
29. The learned Government Advocate draw my attention to the evidence of PW2 regarding acceptance of money of Rs.300/- for issuance of Page 19 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 patta and Ex.P17-Chemical Analysis Report to the extent that the chemical test on the fingers of the accused turned positive.
30. In State of Maharashtra Vs. Dayaneshwar Laxman Rao Wankhede, reported in MANU/SC/1339/2009 : 2009 Crl.J.-4425-SC, the Hon'ble Supreme Court has held as below:
Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.Page 20 of 28
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31. Similarly, the Hon'ble Supreme Court has also observed that before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution.
32. In the case of T.Subramanian Vs. State of Tamil Nadu [2006-1- MWN-Cr.-187-SC] the Hon'ble Supreme Court has held that if the reason offered by the accused is probable and reasonable, then the accused had to be acquitted. The Honourable Supreme Court referred to its earlier decision rendered in the case of Punjabrao Vs. State of Maharashtra [2002-10- SCC-371], wherein it is held thus:-
"It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the possession, but can establish the same by preponderance of probability."Page 21 of 28
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33. In the present case, the defense of the accused was more probable and therefore, it should be accepted. In view of the discussions made above, I am of the considered view that the defense of Appellant was probable than that of the Prosecution case and that in the facts and circumstances and evidence on record, the defense case must be accepted and the conviction and sentence of the Appellant cannot be sustained and the appeal is liable to be allowed.
34. In D.Balasubramanian Vs. State, reported in MANU/TN/4307/2011, this Court has held as follows:
32. In the light of the above conflicting versions and suspicious features on the material aspect, I am of the considered view that the evidence of PW.3 and PW.4 is unworthy of any credence. An overall assessment of the matter indicates that the story advanced by the Prosecution is not true and the defence version seems to be more probable.
33. .... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence of proof of his case beyond a reasonable doubt. It is sufficient if the accused succeeds in proving preponderance of probability in favour of his case. As soon as he succeeds in doing so, the burden shifts to Prosecution which still has to discharge its original onus that never shifts Page 22 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 i.e. that of establishing the whole case, the guilt of the accused beyond a reasonable doubt.
35. Further, in the State Vs. V.Vaidyalingam and Others, reported in MANU/TN/1825/2017, this Court has held as follows:
“11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.
12. To be noted, mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Prevention of Corruption Act, 1988.”
36. In his evidence PW3 has spoken about the alleged recovery but not stated anything about the demand and acceptance, assumes significance. In the above said decisions, mere recovery of tainted amount and that the Page 23 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 results are being positive, cannot be put against the accused in the absence of any demand and acceptance. If the accused offers any explanation which is found to be more probable, the case of the defence has to be taken into consideration.
37. The specific case of the defence is that there is a strong motive for false implication of the accused, which is discussed supra, and the very purpose for which PW2 has approached the accused is for “Ganga Kalyan Yojana” Scheme, which is no longer available on the alleged date of his application for patta and in view of the admission of the PW2 that he had assured the accused to give the expenses incurred by the accused for his travelling expenses between the VAO office and taluk office, to arrange for patta so as to get the particulars and copy of village map and revenue map and the corresponding survey number and hence, this version of PW2 would lend corroboration to the explanation given by the accused under Section 313 of Cr.P.C that the accused had received the Rs.300/- since the PW2 gave the money under the pretext of incidental expenses viz., the travelling Page 24 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 expenses incurred by the accused for travelling from his office and taluk office and head quarters for arranging the supplementary document in support of the patta, also assumes significance.
38. Therefore, I find that in view of the decisions stated supra, the version of PW2 is found to be tainted with mala fide and has got strong motive for false implication and the terms of the demand and the details of the demand and the quantum of the alleged bribe amount, also found to be at material variance.
39. The very purpose alleged to have been the reason i.e. the application of the patta sought for by the PW2, admittedly does not exists on the date of the application and there is a material contradiction with regard to material particulars viz., demand, acceptance and recovery from the evidence of PW3 with that of PW2 and PW15-Investigating Officer and hence, I find that the version of the PW2 in the witness box not only suffers from material contradiction but also suffers from mala fide and appears to Page 25 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 wreck vengeance against the accused who has not supported the case of PW2 for obtaining free house patta by filing a true report based on the revenue records that the land for which pattta was sought for, on the earlier occasion by the PW2, is a 'Road poramboke' as could be seen from the revenue witnesses PW11 and PW10 and hence, I find that it is too unsafe to rely upon the version of PW2, so also PW3
40. Accordingly, I find that the prosecution has failed to prove the charges beyond doubt. The version of PW2 and PW3 are surrounded with suspicion and in the absence of demand and receipt of alleged bribe amount proved in the manner known to law, and in view of the probabilisation of the suggestive case which appears to be more probable than the prosecution case, I am of the considered view that the prosecution has failed to prove the charges beyond reasonable doubt and the benefit of doubt falls upon the accused.
41. For the reasons stated supra, the finding of the trial Court and the Page 26 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.746 of 2015 consequential conviction and sentence are not legally sustainable as the trial Court has miserably failed to appreciate the evidence of PW2 in the proper perspective and has not dealt with the motive behind the lodging of Ex.P1- complaint and also the explanation offered by the accused, which is more probable and reasonable than the prosecution case and hence, the judgment of the trial Court is held to be unsustainable.
42. Accordingly, the conviction and sentence passed by the learned Special Judge cum Chief Judicial Magistrate, Namakkal in Special C.C.No.7 of 2022, dated 02.12.2015, as against the accused/appellant herein is set aside and the appellant/accused is acquitted of all charges. Fine amount is ordered to be refunded. Bail bond stands cancelled. The Criminal Appeal is allowed.
Index: Yes / No 02.09.2022
Internet: Yes
ars
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Crl.A.No.746 of 2015
RMT. TEEKAA RAMAN, J.
ars
To
1. The Special Judge/Chief Judicial Magistrate,
Namakkal
2. The Inspector of Police,
Vigilance and Anti-Corruption Department,
Salem at Namakkal.
3.The Public Prosecutor,
High Court, Madras.
Pre-delivery Judgment made in
CRL.A.No.746 of 2015
02.09.2022
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