Madras High Court
Unknown vs E.Velusamy on 20 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 20.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.37 of 2010
The State Rep. by
The Deputy Superintendent of Police
Vigilance and Anti Corruption
Sivagangai
Crime No.1 of 2005 ...Appellant/Complainant
Vs.
E.Velusamy
Formerly Head Constable, HC 1364
Thirubuvanam Police Station
Sivagangai District ...Respondent/Accused
Prayer: Criminal Appeal filed under Section 378 of Criminal Procedure
Code, to allow the appeal and set aside the judgment of acquittal of the
respondent/accused passed by the learned Chief Judicial Magistrate cum
Special Judge, Sivagangai in Special C.C.No.01 of 2006 dated 20.11.2009,
convict the respondent/ accused for the offences framed against him, pass
sentence against him in accordance with law.
For Appellant : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
For Respondent : Mr.S.K.Nagarajan
JUDGMENT
The respondent was tried before the learned Chief Judicial Magistrate cum Special Judge, Sivagangai on the allegation that the respondent, http://www.judis.nic.in when was working as the Head Constable received illegal 2 gratification of Rs.300/- from the de facto complainant. The respondent was charged for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The trial Court has found that the prosecution has not proved its case beyond reasonable doubt and therefore extending the benefit of doubt to the respondent, acquitted from the respondent from the charges. Aggrieved against the judgment of the trial Court, the State has preferred the present appeal.
2.The case of the prosecution is that on 08.01.2005, when the accused was on duty, one Jeya gave a complaint against Kumaraih. For not registering a case, the accused said to have demanded Rs.500/- as bribe. Further the prosecution stated that the said Kumariah has told the accused that he had to accompany his wife for treatment at the hospital in Madurai, but the accused had not heeded to the same, having left with no other option Kumariah told the accused that after returning from hospital he would pay the money and on 13.01.2005 at about 03.00 p.m when the said Kumaraih was travelling near Thirupuvanamkottai, the accused demanded the said sum. For which, Kumaraiah told him that he would pay the money in two days and on 17.01.2005, Kumaraiah went for job in LMS sound service at about 10.00a.m, the accused again demanded the said sum of Rs.500/- and threatened him that he would register a case against him. After that the accused told Kumaraiah that he would wait near Thriupuvanamkottai and asked Kumaraiah to pay at least Rs.300/- http://www.judis.nic.in 3 and again threatened him. Further on 17.01.2005 at about 06.30 p.m near Madurai Mandapam Road, when the accused saw the said Kumariah, he again demanded the said sum and received a sum of Rs.300/- and by this act the accused committed an act of obtaining bribe and hence a case punishable under Sections 7 and 13(1)(d) r/w 13(2) was registered against the accused.
3.After filing charge sheet, the learned Chief Judicial Magistrate cum Special Judge, Sivagangai received the charge sheet and taken on file in Special C.C.No.01 of 2006 and after completing the procedural formalities framed charges against the respondent.
4.In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined as PW.1 to PW. 12, 16 documents were marked as Ex.P.1 to Ex.P16 and 5 material objects were exhibited as MO.1 to MO.5.
5.After completion of the prosecution evidence, when the incriminating materials culled out from the prosecution witnesses were put before the respondent / accused, the respondent denied the same as false. On the side of the respondent, neither oral evidence nor documentary evidence was let in, to establish his defence. http://www.judis.nic.in 4
6.After hearing the arguments and also considering the materials placed on record, the learned Chief Judicial Magistrate cum Special Judge, Sivagangai found the accused not guilty and acquitted the respondent / accused from the charges, against which the State has preferred the present appeal.
7.This Court as an appellate court has to decide independently and also to re-appreciate the entire materials placed by the prosecution before the trial Court. The learned counsel for the appellant would submit that the case of the prosecution is that for not registering a case against PW.3 the respondent demanded Rs.500/- and when the PW.3 expressed his inability to pay Rs.500/-, he reduced the demand from Rs.500/- to Rs.300/-. He also demanded money on various places and on the occurrence day at Thirupuvanam junction road he received a sum of Rs.300/- as bribe in front of Prabha textiles. P.W.2 Shadow witness has also witnessed the same. After receiving bribe money, the PW.3 complainant showed the pre arranged signal to the PW.10 trap laying officer. He approached the def acto complainant and ascertained the facts and at that time, the accused was in a nervous condition. Since it being a public place and not suitable for conducting phenolphthalein test and to prepare mahazhar, he took the respondent to the Thirubuvanam Police Station, where he conducted the phenolphthalein test in the presence of PW.2 / independent witness and also the phenolphthalein test which http://www.judis.nic.in 5 showed positive result. Thereafter,he recovered the tainted money through recovery mahazhar in the presence PW2 / independent witness and also other witness and obtained signature from the accused and completed the formalities.
8.The main ingredient of trap case the sine qua non of demand, acceptance and recovery were established by the prosecution in the manner known to law. It is for the respondent to prove that the presumption under Section 20 of the Prevention of Corruption Act, recovered tainted money is not a bribe money. But in case of demand and acceptance, recovery have been proved, whereas the trial Court has failed to consider the legal presumption and failed to consider that the respondent has not rebutted the presumption in the manner known to law and acquitted the accused, which warrants interference.
9. Per Contra, the learned counsel for the respondent / accused would submit that even the de facto complainant himself has disowned the complaint given to the respondent Police and before registering the case they have not obtained any instructions from the Superior Officer. The prosecution has not proved that the complaint received from the de facto complainant was forwarded to the superior officer and obtained instructions from the Superintendent of Police, which is fatal to the case of the prosecution. Further PW1 / Sanctioning Officer has not applied his http://www.judis.nic.in 6 mind and also has not considered that in this case phenolphthalein test and recovery was only made in the police station and without applying his mind, has accorded sanction, which is also fatal to the case of the prosecution. There is also contradiction regarding the place of occurrence among the prosecution witnesses, which is also doubtful. Further, based on the enquiry conducted in the said place, no recovery was made and the preparation of mahazhar was done in the police station, which is also fatal to the case of the prosecution. Further the persons, who were nearby the said area were not examined and they were not cited as witnesses. He has taken a further defence that since he is involved in the union activities, in order to take revenge against him, the appellant police had arranged the de facto complainant and without the knowledge of the respondent, the complainant kept the money in the pocket of the respondent / accused and therefore the respondent was not aware of the tainted money in his possession and they have foisted a false case against him. PW.3 de facto complainant himself disowned the complaint given by him. Further he would state that the respondent did not demand money and he only has voluntarily kept the money into the respondent's pants pocket. Since he has not supported the case of the prosecution he was not examined first and the shadow witness was examined as PW.2 and thereafter only, the de facto complainant was examined as PW.3, which itself creates suspicion. The prosecution has not proved the case beyond reasonable doubts. Further, he would submit that the appellant was forced http://www.judis.nic.in 7 to hand over the tainted money, therefore, they were able to get positive report in the phenolphthalein test.
10.The learned counsel for the appellant relied on a decision of the Honourable Supreme Court in B.Jayaraj -vs- State of Andhra Pradesh reported in (2014) 13 Supreme Court Cases.
11.The demand and acceptance are not proved and mere recovery of tainted money is not sufficient to fasten the criminality on the respondent and the appellant has not proved that the tainted money is received from the respondent. He would also submit that when the complainant himself disowned the complaint and the prosecution had not examined any other witnesses, the prosecution failed to prove the case. In this case also, no other witnesses have been examined by the prosecution. Even the occurrence is said to have taken place in the public place and no proper explanation was given as to why phenolphthalein test was conducted in the Police station and not in the occurrence place itself. No public was examined as witness in this case. Therefore the trial court had rightly appreciated the entire evidence and acquitted the accused.
12.Heard and perused the materials and also considered the submissions made by the learned counsel on either side. http://www.judis.nic.in 8
13.It is the case of the prosecution that the respondent was working as a Head Constable in the Thirupuvanam Police Station, Sivagangai District on 08.01.2005. There was a land dispute between the wife of the brother of the complainant and one Jeya. Due to which there was a quarrel between them, during that time the wife of PW.3 sustained injuries and they made a complaint against each other before the respondent on 08.01.2005, whereas on 17.01.2005 the respondent registered a case against the opposite party and for not registering the case against the de facto complainant PW.3 and his wife, the respondent demanded Rs.500/- subsequently on several occasions and even on 17.01.2005, he demanded money, then he reduced the demand from Rs. 500/- to Rs.300/-. Since he obtained illegal gratification, other than the legal remuneration, a case was registered against the respondent under Sections 7 and 13 (1) (d) r/w 13(2) of Prevention of Corruption Act and investigation was conducted and charge sheet was laid and also conducted the case.
14.Tamilarasan, who was working as an Assistant in TNCSC is cited as independent witness, who was examined as PW.2. He has clearly spoken about the incident. On 17.01.2005 on the instructions given by his Superior Officer he went to the vigilance office at 04.15 p.m. At that time Muralidharan, who was working as Assistant Engineer in TWAD Board. Then the Inspector of Police, Vigilance and Anti Corruption introduced http://www.judis.nic.in 9 PW.3 and explained the complaint given by him and also after receiving the complaint, registered a case. He has planned to conduct trap and he has explained how the trap should be conducted and demonstrated the same by pre trap proceedings. After completing the pre trap proceedings, he prepared entrustment mahazhar and instructed the defacto complainant PW.3 to meet the respondent, who demanded money, then he has handed over the money to the defacto complainant. PW.10 also informed that PW.2 should follow the de facto complainant. When the respondent was on duty, PW.4 was also in duty near the place of occurrence. When PW.3 met the respondent, he asked the defacto complainant as to whether he had brought the money as demanded by him. When he said yes the respondent took PW.3 to nearby Prabha Textiels. PW 3 took 3 hundred rupees note from his pants pocket and gave it to the respondent, respondent received and kept in his pants pocket. After receiving the money, the defacto complainant /PW 3 showed the pre arranged signals to PW.10 the trap laying officer and after receiving the signal he approached the respondent at 06.30 p.m. The trap laying officer introduced himself to the respondent and the trap laying officer thought that the place was not fit for conducting enquiry and immediately he took the respondent to the Thirupuvanam police Station. After reaching there he conducted phenolphthalein test and thereafter recovered the tainted money from the respondent in the presence of witnesses and prepared recovery mahazhar and also compared with the http://www.judis.nic.in 10 serial number, which was recovered from the respondent with entrusted mahazhar, both the numbers were tallied. The trap laying officer, who was examined as PW 10 has also spoken about the complaint given by PW3 and registered a case and arranged for pre trap and also the trap was successfully completed.
15.In a trap case sine qua non is demand, acceptance and recovery, from the evidence of PW.3, the initial demand was proved and also from the evidence of PW.3, in order to not register a case against him, respondent demanded money therefore, he made a complaint before PW.10 and from the evidence of PW.2 the independent witness and PW.10 trap laying officer, the demand and acceptance are proved. From the evidence of PW.2 and PW.10, the recovery from the respondent is also proved but, the trial Court has failed to consider that the demand, acceptance and recovery of bribe money were proved from the prosecution witness.
16.The main contention raised by the learned counsel for the appellant is that the prosecution is able to prove the case with cogent evidence and hence demand, acceptance and recovery were proved. The learned counsel for the appellant would submit that after getting instructions from the superior officer, the Trap Laying Officer arranged for pre trap, further charge sheet was filed only by the Deputy Superintendent http://www.judis.nic.in 11 of Police, Vigilance and Anti Corruption, therefore, it is not fatal to case of the prosecution. On a perusal of the records and charge sheet filed by the Deputy Superintendent of Police, Vigilance and Anti Corruption, it is seen that the complaint is before the concerned police and investigation was taken by the Deputy Superintendent of Police and after completing investigation, filed charge sheet. Therefore, the contention of the Counsel for the respondent is not acceptable and the same is rejected. The learned counsel for the respondent would submit that Sanctioning Authority has not applied his mind and accorded sanction and he has not given any explanation as to why the phenolphthalein test and recovery were not done in the occurrence place. P.W.2 independent and PW.10, trap laying officer have clearly stated in their evidence that since,the respondent was in duty at Thirupuvanam junction road beat, the place near Prabha textiles, after seeing PW3 the respondent took him to the prabha textiles then he received the bribe money after receiving the pre arranged signal, when he approached the respondent in front of Prabha textiles, which is a public place, he immediately took the respondent to the police station, where he conducted phenolphthalein test, which gave positive result. PW.10 has clearly stated that since the place of occurrence is in public place, further the respondent was in uniform, he thought that it was not fit for conducting phenolphthalein test and recover the tainted money therefore, they took the respondent to the nearby Police Station. http://www.judis.nic.in 12
17.The main allegation is that the respondent demanded money from the defacto complainant/PW.3, for not registering the case against him and wife. Admittedly there was a land dispute between the wife of the brother of PW.3 and one Jeya and further admittedly, wife of PW.3 sustained injury and case was registered against Jeya and there is no case filed against the defacto complainant or his wife. The main contention of the learned counsel for the respondent is that the complaint is given to the respondent and the respondent has also registered a case and therefore it is duty of the respondent to prove the case was registered against PW.3 and his wife. Based on the complaint given by the wife of the defacto complainant, a case has been registered against the opposite party , but whereas another complaint has not been registered against the defacto complainant family. Therefore the reason for demand is established. The prosecution witness has also stated that the respondent was the competent person to register a case. On a reading of the deposition of PW. 3 / defacto complainant, it is seen that there is a motive for demanding money. No doubt it is settled law that in the absence of any adequate evidence the accused cannot be convicted, wherein in this case PW. 2 /independent witness who was working as Assistant in TNSCC is neither known to the defacto complainant nor the staff of the appellant department. He is a independent witness working in the public office and also he was summoned through PW.10 trap laying officer through his superior. P.W.2 has clearly narrated the events at that time when PW.2 http://www.judis.nic.in 13 met the respondent in the place of occurrence near Prabha Textiles, what had happened between them and therefore his presence is not doubtful and this Court does not find any reason to discard the evidence of PW2 / independent witness. Therefore from the evidence of PW.2, PW.3, PW.4, PW.10 and PW.11 and also chemical analysis report from the forensic department, this court finds that the respondent has committed the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and this Court finds the respondent guilty.
18.The trial Court has given more importance for the irrelevant materials and also considered the immaterial contradiction to decide the case and the defence taken by the respondent is only afterthought and not substantiated in the manner known to law, where was, this court finds that the prosecution has proved it case beyond reasonable doubt. The main ingredients of demand and acceptance is proved from the evidence of PW.2. and recovery was proved from the evidence of PW.2 and P.W 10 and also other witnesses have spoken that he was working as Head Constable in the Thiruhbuvanam Police Station and also registered the case against the one Jaya party for the complaint given by the wife of the defacto complainant and PW 1 has meticulously gone through materials placed before him, since there were prima facie materials to accord sanction, they have rightly accorded sanction and this Court does not find any irregularity or infirmity in according sanction. Further, since the http://www.judis.nic.in 14 Deputy Superintendent of Police himself had laid charge sheet before the Special Court, the contention raised by the learned counsel for the respondent that the Superior Officer has not been informed, is not acceptable and no prejudice shall be caused to the respondent and based on the materials available on record, this Court finds that he has committed the offence and therefore the trial Court has failed to consider all the material aspects and under these circumstances, this Court finds that there is a strong reason to set aside the judgment of the learned Special Judge.
19.Though PW.3 has not supported the case of the prosecution and treated him as hostile witness and the respondent has stated that PW. 3 voluntarily kept the tainted money into the pants pocket of the respondent, PW.3 himself had stated that the respondent was asked to dip his fingers in the sodium carbonate solution and he dipped his fingers and his fingers turned pink. Therefore, from the evidence of PW.3 it is clear that the respondent has received money in front of the Prabha Textiles at Thirupuvanan junction road beat. If at all the respondent had not received the money and PW.3 had kept the tainted money in his pants pocket, then the fingers of the respondent, when dipped in the solution would not have turned into pink in colour. Moreover, the respondent was a Head Constable in the Police Station, the de facto complainant is a layman. Considering the status of the respondent, the de facto complaint might http://www.judis.nic.in 15 have retracted his earlier version given in the complaint made before the appellant and also the statement given before PW.10 the Trap Laying Officer. Further, the evidence of PW.2 independent witness is corroborated with the entrustment mahazar, recovery mahazar and observation mahazar and the phenolphthalein test. Hence, there is no reason to discard or disbelieve the evidence of PW.2.
20.Since the place of occurrence was the public place near the Thirupuvanam Junction road Police beat and the respondent was also in uniform while he was in duty at that time therefore, having felt that the place was not fit for recovering the tainted money and to conduct phenolphthalein test and also for preparing the recovery mahazar, the respondent was taken to the nearby Thirupuvanam Police Station. The respondent has not made any complaint against the Vigilance Police regarding the alleged forceful action done by the Trap Team Therefore, the contention of the learned Counsel for the respondent is not acceptable and the same is rejected.
21.Therefore, from the evidence of PW.2, independent witness and PW.10 the Trap Laying Officer and from entrustment mahazar, recovery mahazar and observation mahazar and forensic laboratory report, it is proved that the respondent demanded and accepted illegal gratification and the same was recovered from the respondent. Therefore, http://www.judis.nic.in 16 the contentions raised by the learned Counsel for the respondent is not acceptable and therefore, the defence taken by the respondent is rejected.
22.This Court finds that the respondent is found guilty under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. Since this Court is inclined to reverse the judgment passed by the Trial Court and the respondent is directed to appear before this Court on 20.12.2018 for giving reply regarding question of sentence.
23.Post the matter on 20.12.2018 for appearance of the respondent / accused.
04.12.2018 aav/dsk As directed by this Court earlier, the respondent has appeared before this Court for question of sentence.
2.The learned Counsel for the respondent submitted that the respondent has not committed any offence and a false case has been foisted against the respondent, therefore, the trial Court has rightly acquitted the respondent from the charges. Further he submitted that the offence is of the year 2005 and now the wife of the respondent is http://www.judis.nic.in 17 bedridden and requests this Court to show leniency towards the respondent.
3.The respondent has been asked about the sentence to be imposed to him for having committed the offences, he pleaded that he had not committed any offence as alleged and prayed for leniency as his wife is bedridden and at pathetic condition.
4.Heard the learned Counsel for the respondent and carefully considered the submission made by the learned Counsel for the respondent and the submission made by the respondent and the same is recorded.
5.Though the respondent pointed out the mitigating circumstances, this Court, taking into account the serious nature of the offence involved in this case, also considering the prevailing situation, which this Country is facing at present and in the interest of larger public, feels this is not a case, where leniency to be shown and is not inclined to show any leniency in this case.
6.As this Court has already set aside the judgment of the Special Judge and convicted the appellant on 04.12.2018, the following sentence is imposed on the respondent :-
http://www.judis.nic.in 18 The respondent is, sentenced to undergo three years rigorous imprisonment and to pay a sum of Rs.5,000/- as fine, in de fault, to undergo one year simple imprisonment for having committed the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo three years rigorous imprisonment and to pay a fine Rs.5,000/- as fine, in default to undergo one year simple imprisonment, for having committed the offence under Section 13(1)(d) r/w 13(2)of the Prevention of Corruption Act, 1988 and both the sentences shall run concurrently.
7.The appellant Police is directed to secure the respondent / accused and confine him at Central Prison, Madurai to undergo the punishment imposed on him. Registry is directed to issue necessary warrant in this regard.
20.12.2018 Index : Yes/No Internet : Yes /No dsk Note: Issue copy on 20.12.2018 To
1. The Chief Judicial Magistrate cum Special Judge, Sivagangai
2. The Deputy Superintendent of Police Vigilance and Anti Corruption http://www.judis.nic.in Sivagangai 19
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Superintendent, Central Prison, Madurai.
5.The Record Keeper (2 copies) Criminal Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 20 P.VELMURUGAN, J., dsk Crl.A.(MD)No.37 of 2010 20.12.2018 http://www.judis.nic.in