Madras High Court
D.Chellaiah vs State By The Inspector Of Police on 25 April, 2019
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.03.2019
PRONOUNCED ON : 25.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.1021/2005
D.Chellaiah Appellant
Vs
State by The Inspector of Police
DVAC, Trichy Respondent
Prayer:- This Criminal Appeal is filed, against the judgement of conviction and
sentence, dated 29.11.2005, made in Special CC.No.3 of 2002, by the Special
Judge Cum Chief Judicial Magistrate, Perambalur.
For Appellant : Mr.V.Parthiban
For Respondent : Mr.K.Prabakar, APP
JUDGMENT
1. This Criminal Appeal is filed against the judgement of conviction and sentence, dated 29.11.2005, made in Special CC.No.3 of 2002, by the Special Judge Cum Chief Judicial Magistrate, Perambalur, convicting and sentencing the Appellant/ accused for the offence under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, to undergo five years Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo Simple Imprisonment for six months.
2. The case of the prosecution has arisen on the basis of the complaint given by PW.2, Natarajan, under Ex.P.7, dated 10.06.2000. It is alleged by PW.2 in Ex.P7 that due to the disputes between PW.2 and his neighbours in the http://www.judis.nic.in 2 Village, in respect of repairing his house, PW.2 gave a complaint, dated 14.10.1999, registered as CSR.No.84/99, in which, there was no action taken by the concerned Police and that again, in respect of the same dispute, PW.2 gave another complaint, dated 23.10.1999, registered as CSR.No.91/99, for which also, no action had been taken and hence, PW.2 preferred a private complaint, before the concerned Magistrate on 19.11.1999 and that the Magistrate had directed the Police to do investigation under Section 156(3) of Cr.PC. It is further alleged that since on 25.11.1999, one Tamilmani and others came and demanded Rs.20,000/- towards expenses for conducting the case and obtained his signature in blank papers, PW.2 gave a complaint dated 27.3.2000 to the Appellant/ accused and the Appellant/ accused told that only on payment of Rs.2000/-, receipt would be given and he will enquire into the matter and that on his further request, a receipt in CSR.No.34/2000 was given. It is further alleged that PW.2 requested the Appellant/ accused to take action on his complaint on several times and the Appellant/ accused has been demanding the said sum, without taking any action on the complaint of PW.2. It is further alleged that on 9.6.2000 morning, when PW.2 approached the Appellant/ accused in his house, he demanded a sum of Rs.1000/- and a plastic chair worth Rs.250/- to take action on the petitions of PW.2 and the balance amount of Rs.1000/- should be given after taking action by him on the petitions of PW.2. Since PW.2 was not willing give the amount as bribe, on 10.06.2000, PW.2 had lodged a complaint to the Respondent Police.
3. Thereafter, a trap was arranged and an entrustment mahazar was prepared, http://www.judis.nic.in 3 detailing the numbers of the currency notes and demonstration of phenolphthalein test was made and the procedure regarding trap was explained to PW.2 and PW.3, the trap witness. In furtherance of the same, on 12.06.2000, at about 7.00 a.m. to 7.30 p.m., PW.2 and PW.3, Nagarajan [Trap Witness] went to the house of the appellant/accused, situated in Government Housing Quarters and handed over the plastic chair to him and also gave a sum of Rs.1000/- by cash to the appellant/accused. The appellant/accused also asked PW.2 to get two quarter bottles of Whisky and the same was also bought and handed over to the Appellant/ accused and the same were received by the appellant/accused. Subsequent to the pre- arranged signal shown by PW.2, the Inspector of Police attached to DVAC, entered into the house and enquired the Appellant/ accused and the other witnesses and conducted necessary chemical test on his both hands and the money purse, in which the tainted money was kept and the chemical test proved positive and then, arrested the appellant/accused and sent him to judicial custody. After recording the statements of the witnesses and after completing investigation, the Appellant/ accused was charge sheeted for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988.
4. The case was taken on file in Spl.CC.No.3/2002 by the learned Special Judge cum Chief Judicial Magistrate, Perambalur and necessary charges were framed. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.13 and also marked Exs.P1 to P24. No oral and http://www.judis.nic.in 4 documentary evidence was let in on the side of the defence.
5. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case.
6. The court below, after hearing the arguments advanced on either side and also looking into the materials available on record, found the appellant herein guilty and awarded punishments, as referred to above, which is challenged in this Criminal Appeal.
7. This court heard the submissions of the learned counsel on either side.
8. The learned counsel for the appellants has assailed the impugned judgement of conviction and sentence, on the following grounds:-
i. The initial demand of money to start the investigation, according to PW.2, was on 27.03.2000, but he made the complaint after three months. Before the complaint, he did not whisper about the demand of money, even before the Magistrate, who ordered for investigation under Section 156(3) of Cr.PC on his complaint.
ii. When the Appellant was not in charge and not assumed office, at the time of preferring the complaint, which was enquired and closed by PW.4, Sub Inspector of Police, the question of demand of bribe by the Appellant does not arise.
iii. The Trial Court erred in not considering the complaint, dated 23.10.1999 treated as CSR.No.91/99, which was closed by PW.4 and the complaint, dated 13.10.1999, which was closed by PW.4 on 14.10.1999 and the complaint dated 25.03.2000 treated as CSR.No.34/00 (Ex.P6), which was investigated by PW.4.
http://www.judis.nic.in 5 iv. The bribe amount was not subjected to chemical test and if the bribe money was tested and proved positive, the truth of the Prosecution would have revealed. Non testing the bribe money will prove that the Appellant has not received the bribe money.
v. Mere recovery of tainted currencies from the Appellant/ accused and the positive result of the phenolphthalein test are not the conclusive proof to found the Appellant guilty. The money was not recovered from him and it was only recovered from the money purse.
vi. The Trial Court failed to note that the sanction in Ex.P1 was not accorded with proper application of mind.
vii. Since a case was filed against PW.2 and the Appellant was not doing favour to PW.2, with a mala fide intention and due to animosity, the Appellant has been falsely implicated in this case and there was a strong motive for PW.2 to implicate the Appellant in the trap proceedings. viii.PW.10 had not recorded the statement of the Appellant/ accused immediately after the trap and arrest as per Rule 47 of the DVC Manual and failure to follow such procedure is fatal to the Prosecution.
9. The learned counsel for the Appellant would ultimately contend that the Prosecution has not proved its case beyond all reasonable doubts, by letting in cogent and convincing evidence and that taking into consideration the overall evidence of the witnesses and the attending circumstances, the impugned judgement of conviction and sentence is not sustainable and therefore, the Appellant is entitled for acquittal. In support of his contentions, he would rely on various the decisions reported in 1976 1 SCC 145 (Raghbir Singh Vs. State of Punjab) and 1978 Crl.LJ 1396 (P.Vasudeva Rao Vs. State of Orissa).
10.The learned counsel for the Appellant/ accused, in the alternate, with regard to the question of sentence, would submit that subsequent to the conviction, http://www.judis.nic.in 6 the Appellant/ accused was removed from service and not reinstated and he is now aged about 73 years old and is suffering from hyper tension and diabetes and that the said mitigating circumstances may be taken into consideration and that the offence had been committed in the year 2000, which was prior to the amendment and the minimum sentence of imprisonment was six months which may extend up to five years and that the Trial Court had imposed the maximum sentence and would pray for reduction of sentence, considering the mitigating circumstances.
11.Per contra, the learned Additional Public Prosecutor for the Respondent, while supporting the impugned judgement of conviction and sentence, would submit that there is no reason to disbelieve the evidence of the witnesses and that the Prosecution has proved its case by adducing clear and cogent evidence and that there are no infirmities or discrepancies or inconsistencies in the evidence adduced by the Prosecution and that the Appellant/ accused was caught red handed while accepting the bribe and the Appellant/ accused having not rebutted the statutory presumption under the Prevention of Corruption Act, 1988, the Trial Court had rightly convicted the Appellant/ accused. He would further submit that the procedure in the DVC Manual are only directory in nature and non compliance of the same would not affect the case of the Prosecution when the Prosecution has proved its case by cogent evidence and would pray for dismissal of this Criminal Appeal.
12.I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of http://www.judis.nic.in 7 conviction, including the relevant provisions of Law and authorities of various Courts.
13.The point for consideration is as to whether the impugned judgement of conviction and sentence is in accordance with law and based on proper appreciation of evidence?
14.To prove the case on facts, the Prosecution has mainly relied on the evidence of PW.2, who is the defacto complainant, PW.3, the official/trap witness, PW.7, the shop owner from whom the chair (MO.2) was purchased, PW.8, wine shop owner, from whom two whisky quarter bottles (MO.3 Series) were purchased and PW.10, forensic expert and the documentary evidence, viz. Ex.P9, bill for purchase of the plastic chair, Ex.P13, bill for purchase of two whisky bottles and Ex.P22, forensic report in respect of phenolphthalein test and sodium carbonate solution test.
15.A scrutiny of both the oral and documentary evidence, it is seen that the Trap Laying Officer, PW.11 had arranged for trap proceedings, on the complaint given by PW.2, made on 10.06.2000 at 9.30 a.m against the Appellant/ accused for having demanded a sum of Rs.1000/- as bribe and a plastic chair, to take action on his complaint. Accordingly, on 12.06.2000, at around 7.00 to 7.30 p.m., PW.2 and PW.3, who is the trap/official witness, had gone to the house of the Appellant/ accused. The Appellant/ accused had received the plastic chair, MO.2 and PW.2 took the chair and kept inside the house. Then, the Appellant/ accused demanded two bottles of whisky and PW.3 had purchased two bottles of Bag Piper Whisky (MO.3 Series) http://www.judis.nic.in and handed over them to PW.2, who in turn gave them to the Appellant/ 8 accused. PW.2 kept the whisky bottles in the shelf. The Appellant/ accused had received the tainted money, i.e. Rs.1000/- (Rs.100 denomination of ten currency notes, smeared with the phenolphthalein powder) in his right hand. On seeing the pre-arranged signal by PW.2, PW.11 and trap laying party entered into the house and asked the Appellant/ accused about the offence. At that time, the Appellant/ accused became shivered. Both the fingers of the Appellant/ accused were dipped into sodium carbonate solutions and both the solutions turned pink in colour. They were packed in two separate bottles and labelled as “R” and “L” respectively.
16.When the Appellant/ accused was asked about the bribe amount, the Appellant/ accused stated that he kept the amount in his money purse in his room and identified the purse. On search, the purse contained Rs.5650/- inclusive of the tainted money demanded. On comparison, the serial numbers of the currency notes of Rs.1000/- (Rs.100 denomination of ten notes) smeared with the phenolphthalein powder were found tallied with the serial numbers noted in the entrustment mahazar, Ex.P12, prepared at the Office of the Respondent.
17.Before recovering the tainted money or other articles in the course trap proceedings, phenolphthalein test should invariably be conducted on the fingers of both hands of the accused officer and on other items, such as his pant/shirt pocket,dhoti, etc. with which the tainted money/articles are known to have come into contact. It will be corroborative evidence to establish the acceptance of the tainted money by the accused Officer.
18.In this case, PW.1 subjected both Rs.5650/- among which the tainted money http://www.judis.nic.in 9 (Rs.1000/-) was kept and money purse to sodium carbonate solution test and they also turned pink in colour and the washed solutions were packed in two separate bottles and labelled as “M” and “P”, respectively. The four bottles containing the tested solutions were sent for chemical analysis.
19.PW.10 is the forensic expert. Ex.P22 is the forensic report, dated 19.6.2000, wherein it is stated that both phenolphthalein and sodium carbonate were detected in all the items and the test for phenolphthalein and sodium carbonate proved positive.
20.Ex.P9 is the bill for having purchased the plastic chair, MO.2, for a sum of Rs.250/-. Ex.P13 is the bill for having purchased two whisky bottles by PW.3. Ex.P12 is the entrustment mahazar, in which, the serial numbers of the tainted money were noted.
21.PW.1 is the sanctioning authority, who accorded sanction under Ex.P1 for prosecuting the Appellant/ accused. On a perusal of Ex.P1, it is seen that after fully and carefully examining the materials, such as copies of First Information Report, mahazars, statements of the witnesses and the accused and the chemical analysis report and other connected records, placed before him in regard to the allegations levelled against the Appellant/ and the circumstances of the case and after satisfying that the Appellant/ accused should be prosecuted for the said allegations, PW.1 had accorded sanction under Ex.P1. PW.1 has also given oral evidence to that effect. Hence, it goes without saying that there was proper sanction for prosecuting the Appellant/ accused and there was proper application of mind by the Sanctioning Authority, while according sanction for prosecuting the http://www.judis.nic.in 10 Appellant/ accused.
22.According to the Prosecution, on 27.03.2000, the Appellant/ accused had firstly demanded a sum of Rs.2000/- for taking action on his complaint given on 27.03.2000. PW.2 has deposed in his evidence clearly about such first demand of the Appellant/ accused. Further, the second demand of Rs.1000/- made by the Appellant/ accused on 9.6.2000 is also evident from the evidence of PW.2, who is the defacto complainant and PW.3, who is the official/trap witnesses. The evidence of PW.2 and PW.3 is in clear and categoric terms, as narrated above, in respect of the demand and acceptance of gratification other than legal remuneration, for taking action on the complaint of PW.2, in the exercise of his official function. Further, the evidence of PW.3, in respect of the trap and phenolphthalein test, is cogent and clear.
23. PW.7, the shop owner from whom the chair was purchased, has let in evidence to the effect of having purchased the chair by PW.2. PW.8, is the wine shop owner, from whom two whisky quarter bottles were purchased and to that effect, evidence was let in by him in clear terms. PW.10 is the forensic expert and he has also deposed to the effect that the test for both phenolphthalein and sodium carbonate solution proved positive, which is also fortified by Ex.P22, forensic report, wherein it is recorded that Phenolphthalein and sodium carbonate solution tests proved positive. Furhter, PW.3 had deposed that immediately after the trap, PW.1, the Trap Laying Officer had questioned the Appellant as to why he had received the amount, for which, the Appellant/ accused had stated that PW.2 had http://www.judis.nic.in 11 voluntarily offered him and it had also been stated in Ex.P14, mahazar, drawn during the trap that the arrest of the Appellant/ accused was effected by the Deputy Superintendent of Police, Jeyapal.
24.At this juncture, it is necessary to quote the relevant provisions of the Prevention of Corruption Act, 1988. Section 7 of the Act reads as follows:-
7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
(Explanations) —(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b)“Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that http://www.judis.nic.in 12 person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
25.Section 20 of the Prevention of Corruption Act, 1988 reads as follows:-
“20. Presumption where public servant accepts any gratification other than legal remuneration.—(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.”
26.As has been held above, acceptance of illegal gratification by the Appellant/ accused is further proved by the evidence PW.2, the defacto complainant and PW.3, the official/ trap witness arranged by the CBI. PW.3 is well consistent on all the material aspects proving acceptance of illegal gratification by the Appellant/accused. This witness has also no reason to give any false evidence against the accused. The evidence of PW.1 is http://www.judis.nic.in 13 corroborated by PW.3 on the aspect of demand and acceptance of illegal gratification. There is no reason or material or valid evidence let in by the Appellant/ accused to disbelieve their evidence.
27.The evidence of PW.11, Trap Laying Officer, who detected the offence, is also definite and consistent, proving pre-trap and post trap procedures. PW.11 has given evidence to the effect of what is narrated above. The seizure of the phenolphthalein tainted currency from the possession of the Appellant/accused at his house stands well proved beyond all reasonable doubts by the evidence of PW.11 and further by the evidence of PW.2, PW.3, PW.7, PW.8 and PW.10.
28.The Honourable Supreme Court in 1998 Crl.LJ 863 (In State of Utter Pradesh v. Zakaullah), has held that the evidence of a Trap Officer can be relied on even without corroboration. In this case the evidence of PW.11 is well corroborated by the evidence of PW.2 and PW.3.
29.In 2005 6 SCC 211 (Gangakumar Sreevastava v. State of Bihar) the Honourable Supreme Court has held that every endeavour must be made by the Trap Laying Officer to secure really an independent and respectable witnesses, so that the evidence adduced by the Prosecution will inspire confidence in the mind of the Court. Such a step ensuring the presence of independent trap witnesses will protect the interest of the public servant also. In the case on hand, PW3, the trap/official witness arranged by PW11 is really an independent and respectable witness. There is absolutely nothing to show that he has any reason to give any false evidence against the Appellant/accused or to help the Prosecution.
http://www.judis.nic.in 14
30.This is a clear case of a genuine trap arranged by the Respondent/DVAC on a true complaint, and that the evidence adduced by the complainant and the other witnesses is really believable. Both on factual or legal aspects, the appellant/ accused is not entitled for any benefit, and the conviction is only to be confirmed in appeal.
31.It is settled law that once demand and acceptance of illegal gratification is proved by the Prosecution, the Court is bound to apply the presumption under Section 20(1) of the Prevention of Corruption Act, 1988, which is extracted as above.
32.The only condition for drawing a legal presumption under Section 20 of the Act is that during the trial, it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification.
33.In 2004 3 SCC 753 (T.Sankar Prasad V. State of Andra Pradesh), the Honourable Supreme Court, while relying on its earlier decision of the Three Judges Bench, reported in 2001 1 SCC 691 (M. Narasinga Rao v. State of Andra Pradesh), has held that the presumption under Section 20(1) of the Act is a compulsory presumption, which the Court is bound to apply, when acceptance of illegal gratification is satisfactorily proved. It was even held that in cases where there is no direct evidence to prove acceptance of illegal gratification, the court can even apply factual presumptions in the appreciation process, for coming to a finding regarding acceptance of illegal http://www.judis.nic.in 15 gratification.
34.In this case, the presumption under Section 20(1) of Prevention of Corruption Act, 1988 will have to be applied in view of the clear and satisfactory evidence proving acceptance of illegal gratification. Once such presumption is available, the burden is on the Appellant/ accused to rebut the presumption. Evidence in this case, both oral and scientific, proves that the Appellant/ accused accepted bribe. As discussed above, all the material witnesses are consistent regarding acceptance of illegal gratification by the Appellant/accused from PW.2, defacto complainant.
35.On an appreciation of the evidence, this Court finds that the Appellant/ accused in this case has miserably failed to rebut the presumption under Section 20(1) of the Prevention of Corruption Act, 1988. When the case stands well proved on facts, and the presumption under Section 20(1) of the Act stands unrebutted, the only finding possible is that the Appellant/accused accepted Rs.1000/-, a plastic chair and two whisky bottles, from PW.2, the defacto complainant, as illegal gratification, or as a reward for doing necessary things for taking action on the complaint of PW.2.
36.It is the further contention of the learned counsel for the Appellant/ accused that PW.10 had not recorded the statement of the Appellant/ accused immediately after the trap and arrest as per Rule 47 of the DVAC Manual and failure to follow such procedure is fatal to the Prosecution. In this context, it is pertinent to state that the Rules under the DVAC Manual are only administrative and directory in nature and non-observance of the same, there will not be any mandatory violation, which would affect the validity of the http://www.judis.nic.in 16 Prosecution and hence, failure to adhere to such procedure is not fatal to the case of the Prosecution. In this regard, it is relevant to refer to the decision of the Division Bench of this Court reported in 2013 1 CWC 136 (Duraimurugan Vs. State, Deputy Superintendent of Police, VAC, Vellore), wherein in paragraphs 38 and 39, it was held as under:-
“38.A careful reading of the above cited decision would disclose that the accused cannot make any complaint with regard to the non- following of the procedures contemplated under the Vigilance Manual and as per the decision rendered in Vineet Narain's case, cited supra, any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.
39.Assuming for the sake of argument that the respondent has failed to follow Rule 76 of the DVAC Manual in letter and spirit, it is for the concerned department to take action against the concerned official and it is not open to the writ petitioner/appellant to take advantage of the same. Moreover, the respondent in the counter-
affidavit in the earlier writ petition in W.P.No.8931 of 2012 as well as the present writ petition in W.P.No.13788 of 2012 took a specific stand that they had followed the Vigilance Manual and accordingly, issued the Final Opportunity Notice as per Proforma 28 of the said Manual. In the light of the stand taken by the respondent in the counter-affidavit in the above said writ petitions, it cannot be said that the respondent/investigating officer has not followed the provisions of the DVAC Manual.”
37.In the light of the above said decision of the Division Bench of this Court, the Appellant/ accused has no locus standi to take advantage of non compliance of the procedure as contemplated under the DVAC Manual and if it at all, it is for the concerned authority to take action against the officials concerned. Moreover, in this case, as per the evidence of PW.3, immediately after the trap proceedings and phenolphthalein test, PW.11, the Trap Laying Officer had questioned the Appellant/ accused in due compliance of Rule 47 of the DVAC Manual and it is supported by Ex.P14, mahazar. Further, in due http://www.judis.nic.in 17 compliance of Rule 47(2) of the DVAC Manual, the Appellant/ accused has also been questioned during further investigation. Thereby, the ground raised by the Appellant/ accused with regard to non-compliance of the DVAC Manual cannot be countenanced.
38.It is the further contention of the learned counsel for the Appellant/ accused that tainted money were not sent to chemical analysis, thereby making the case of the Prosecution doubtful. With regard to the above contentions, the learned counsel for the Appellant/ accused has relied on the decision of the Honourable Supreme Court reported in 1976 1 SCC 145 (Raghbir Singh Vs. State of Punjab), stating that non-sending of the currency notes for chemical analysis vitiates the case of the Prosecution. This Court has perused the said decision of the Honourable Supreme Court. The facts of the present case are different from that of the decision referred above and hence, the said decision relied on by the learned counsel for the Appellant/ accused is not applicable to the case on hand, inasmuch as in the said decision, conviction has been based solely on oral evidence and no scientific evidence has been let in, whereas in the case on hand, the currency notes were smeared with the phenolphthalein powder and the notes were recovered from the purse of the Appellant/ accused and apart from the oral evidence, the Prosecution has proved the demand and acceptance by scientific evidence.
39.Further, as analysed above, on comparison, the serial numbers of the tainted money/currency notes of Rs.1000/- (Rs.100 denomination of ten notes) smeared with the phenolphthalein powder were found tallied with the http://www.judis.nic.in 18 serial numbers noted in the entrustment mahazar, Ex.P12, prepared at the Office of the Respondent. Further, possession of the tainted money by the Appellant/ accused has also been proved by the evidence both oral and documentary, as stated above. Hence, it is not necessary to send the tainted money for chemical analysis, when the tainted money was proved to be recovered from the possession of the Appellant/ accused and the acceptance was scientifically proved by subjecting the Appellant/ accused to phenolphthalein test, which resulted positive.
40.Thus, this Court finds that the Appellant/ accused was rightly found guilty by the Trial Court for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. This Court finds no reason or scope for interference in the findings or in the conviction made by the Trial Court made by the trial court.
41.However, considering the mitigating circumstances as stated by the learned counsel for the Appellant/ accused, this Court deems it fit to modify and reduce the sentence alone imposed by the Trial Court and to that very limited extent, this Criminal Appeal can be allowed partly.
42.In the result, this appeal is allowed in part to the limited extent of modifying and reducing the sentence alone imposed by the trial court. The conviction made by the Trial Court against the Appellant/ accused for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 shall stand confirmed. However, considering the mitigating circumstances that the Appellant/ accused had been dismissed from service and that he has not received any terminal benefits and that he is now aged http://www.judis.nic.in 19 about 73 years and infirm and sick, the sentence imposed by the Trial Court for the said offences shall stand modified and reduced from five years to one year and six months Rigorous Imprisonment. The fine sentence imposed by the Trial Court, with the default sentence thereon, is maintained. The bail bond, if any executed by the Appellant/ accused shall stand cancelled. The period of imprisonment suffered so far, if any, shall be set off under Section 428 of Cr.PC. The concerned Court shall take necessary steps to secure the Appellant/ accused to undergo the remaining period of sentence.
25.04.2019 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To:
1. The Inspector of Police, DVAC, Trichy
2. Special Judge Cum Chief Judicial Magistrate, Perambalur.
3. The Public Prosecutor, High Court, Madras http://www.judis.nic.in 20 A.D.JAGADISH CHANDIRA, J.
Srcm Pre-Delivery Judgement in Crl.A.No.1021/2005 25.04.2019 http://www.judis.nic.in