Madras High Court
S.M.Jesu Michael Jeyakumar vs State Of Tamil Nadu on 2 July, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/07/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.(MD) No.63 of 2006 S.M.Jesu Michael Jeyakumar ...Appellant/Accused Vs. State of Tamil Nadu, rep.by The Inspector of Police, Vigilance and Anti Corruptiuon, Thoothukudi (Cr.No.7/2002) ...Respondent/Complainant Criminal Appeal filed under Section 374(2) of Criminal Procedure Code to quash and set aside the conviction and sentence passed in Spl.C.C.No.4/2002 on the file of the Assistant Sessions Judge-cum Chief Judicial Magistrate/Special Judge under the Prevention of Corruption Act, 1988, Thoothukudi. !For Appellants ... M/s.S.Muthuraj ^For Respondent ... Mr.P.Kandasamy Government Advocate (Crl.side) :JUDGMENT
The sole accused in Special Case No.4 of 2003 on the file of the Special Judge under the Prevention of Corruption Act 1988/Chief Judicial Magistrate, Thoothukudi is the appellant herein and he has challenged the Judgment of the Trial Court dated 31.01.2006 pronounced in the said case convicting him for the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentencing him to undergo two years Rigorous Imprisonment and to pay a fine of Rs.500/- and to undergo one month Simple Imprisonment in case of default in payment of fine for each one of the offences under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention and Corruption Act, 1988 and with a direction that the sentence shall run concurrently, besides, the period of sentence already undergone being set off in terms of Section 428 of the Code of Criminal Procedure. Challenging the conviction as well as the sentence, the present appeal has been filed. For the sake of convenience, the appellant is referred to as accused.
2. The case of the prosecution can be summarised as follows:
The accused Mr.S.M.Jesu Michael Jeyakumar was employed as commercial Inspector in the office of the Junior Engineer (Distribution) Tamil Nadu Electricity Board, Kurumbur, Thoothukudi District from 26.10.1995 to 09.07.2002. Being an employee of a statutory Board, namely, The Tamil Nadu Electricity Board, he was a public servant as defined under Section 2(c) of Prevention of Corruption Act 1988. P.W2-Karunakarapandian, a resident of Keelanalumavadi, applied for a new service connection for the building he had newly constructed for running a mineral water unit in the first week of May 2002 under Ex.P2. The accused demanded a sum of Rs.500/- for himself and a further sum of Rs.500/- to be paid to the persons in the office of the Assistant Divisional Engineer as illegal gratification for sanctioning the new service connection, stating that six new electric poles would have to be provided for giving service connection to P.W2's building. P.W2 informed the accused that he would make such payment after completing the work. He also paid a sum of Rs.100/- as registration fee under Ex.P3-receipt for the same. Thereafter, P.W2 met the accused on several dates and on those occasions, accused informed that his file had been submitted to the office of the Assistant Divisional Engineer and order from there had not been received. Ex.P4-notice pointing out certain defects and directing rectification of the same by PW.2 was received on 24.06.2002 and the same was complied with by PW.2 on 28.06.2002. Along with clarification and a letter obtained from the Panchayat President on 27.06.2002, which contains the Door No.5/56 A and Ex.P6-Tax Receipt have been submitted by P.W2. Again on 08.07.2002, when P.W2 met the accused in his office at 12.00 noon, the accused informed him that if he paid the amount of Rs.1000/- demanded by him, he could get the service connection immediately without delay and in case of non payment, he could not get the service connection at all. The accused informed P.W2 that if he would come with the amount the next day, he would directly go to the office of the Assistant Divisional Engineer and get the permission for new connection. Not willing to pay the amount demanded by the accused as illegal gratification, P.W2 went to the office of the Vigilance and Anti Corruption, Tuticorin and lodged a written complaint dated 08.07.2002 under Ex.P7 with P.W4-Shanmuganathan, the then Inspector of police attached to the said detachment. Based on the said complaint, P.W4 prepared the First Information Report in the printed format under Ex.P14 and registered a case in Cr.No.7/2002 on the file of the Vigilance and Anti Corruption Police Wing for an offence under Section 7 of the Prevention of Corruption Act, 1988.
Thereafter, P.W3 Narayanan, who was functioning as Statistical Assistant Inspector in the office of the Rural Development Agency and one Y.John, Senior Inspector in the office of the Joint Registrar of co-operative Societies, Tuticorin were informed by P.W4 to come the office of the Vigilance and Anti Corruption Wing and in their presence, a demonstration was shown as to how phenolphthalein test would be used in trap cases. Ten number of hundred rupee notes brought by P.W2 were coated with phenolphthalein powder on both sides of the currency notes and entrusted the same to P.W2 with instructions to give the money to the accused only, if the accused would make a demand. An entrustment mahazar was also prepared under Ex.P9.
3. Thereafter, PW.4 along with his police party and the above said witnesses Narayanan, John and P.W2-Karunakarapandian went in a police jeep. The police jeep was stopped at a distance from the office of the Junior Engineer (Distribution), Tamil Nadu Electricity Board, Kurumbur, in which the accused was working as commercial Inspector. PW2 was instructed to give the money only if a demand was being made by the accused and P.W3 was instructed to accompany P.W2 and keenly watch the happenings. A pre-arrangement was also made as to how P.W2 should give signal if the accused accepted the money as illegal gratification. When the decoy witness (PW2) accompanied by the shadow witness (PW3), went to the office of the accused, they got the information that the accused was not there and he would come to the office only at 2.30 p.m. They came back to P.W4 and informed him, where upon the entire party went to the neareby railway station, namely, Nallur Railway Station, took rest till 2.30 p.m and then came back to the very same place at which the jeep had been parked earlier. Again P.W2 and P.W3 were asked to act according to the earlier instruction. When both of them went to the office of the accused at 2.40 p.m, the accused Jeyakumar was found in his seat. When P.W2 asked about the service connection for which he had applied, the accused replied that the file had not come from the office of the Assistant Divisional Engineer and questioned P.W2 whether he had brought that Rs.1,000/- as demanded by the accused. P.W.2 answered in the affirmative. The accused asked him to give that money to him and P.W2 gave the phenolphthalein coated currency notes ( 10 numbers 100 rupee notes) to the value of Rs.1,000/-. The accused got it with his right hand, counted the same using both hands and put it in his right side table drawer and informed P.W2 that he would go to the office of the Assistant Divisional Engineer, the next day itself, get permission and complete the work of erecting the poles and effecting the service connection by the Saturday of the said week itself. Thereafter P.W2 and P.W3 came out of the said office and P.W2 gave the signal by caressing his head with his left hand as per the pre arrangement. The police party along with P.W2, P.W3 and other witnesses entered into the office in which the accused was employed, where P.W2 has identified the accused and after such identification, he left the office. P.W4 after identifying himself and other witnesses to the accused, caused the phenopthalein test to be conducted for the right hand fingers of the accused by asking him to dip his right hand fingers in the Sodium Carbonate solution prepared on the spot, which turned pink. However, the Sodium Carbonate solution used for testing the left hand fingers of the accused did not show any change in colour. The Sodium Carbonate solution used for phenolphthalein test in the scene of occurrence for the right hand and left hand of the accused poured into two bottles M.O2 and M.O3 respectively and they were closed and sent to the forensic laboratory. Thereafter P.W4 asked the accused about the money received from P.W2 and the accused took out M.O.1 (series) currency notes from the right side drawer of the table and hand it over to P.W4. On the instructions of P.W4, P.W3 counted them and found it to contain 10 numbers of 100 rupee note. After confirmation that those currency notes were the currency notes given to P.W2 as per the entrustment mahazar, the same were recovered by P.W4, who also seized Ex.P15 relating to the application of P.W2 for service connection and Ex.P12 and Ex.P13 attendance register. P.W4 also prepared Ex.P16 Rough Sketch showing the topography of the place of occurrence regarding the happenings in the office, in which the accused was working. Regarding the happenings from the moment the police party entered, Ex.P11 was prepared by P.W4.
4. On the basis of Ex.P18-requisition, the Sodium Carbonate solutions used for phenolphthalein test in the trap operation were sent to the Forensic Laboratory along with the original of Ex.P19 covering letter from the Chief Judicial Magistrate, Pudukottai. Thereafter, the said solution was examined by P.W7-Scientific Officer and on examination, she found phenolphthalein and Sodium Carbonate present in both solutions sent in both the bottles. Ex.P20 Chemical analysis report was received. The further investigation was taken over by P.W8- Rajkumar, Inspector of Police, Vigilance and Anti Corruption Act. He collected the other materials, recorded the statements of witnesses, completed the investigation, placed the file before the sanctioning authority, namely, P.W1, got sanction for prosecution under Ex.P1-sanction order and submitted a final report alleging commission of offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988, by the accused.
5. In order to prove the prosecution case, totally eight witnesses were examined as P.W1 to P.W8, 26 documents were marked as Ex.P1 to Ex.P26 and three material objects were produced as M.O.1 to 3. After the completion of the recording of the evidence adduced on the side of the prosecution case was over, the respondent was examined under Section 313(1)(b) of Cr.P.C. regarding the incriminating materials found in the evidence of prosecution and also generally regarding the case. The accused stated that such evidence against him was false and that P.W2 who was in the habit of blackmailing, gave a false complaint and the case was foisted against him. No witness was examined and no document was marked on the side of the accused.
6. The learned trial Judge, after hearing the arguments advanced on both sides, considered the evidence and upon such consideration, came to the conclusion that both charges stood proved, held the accused guilty of the offences with which he stood charged, convicted him for the said offences and sentenced him as indicated supra. Challenging the said Judgment of the trial Court, both in respect of conviction and sentence, the accused has come forward with the present appeal on various grounds incorporated in the appeal petition.
7. The point that arises for consideration in this appeal is "Whether the judgment of the trial court convicting and sentencing the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, suffer from any defect or illegality, capable of being interfered with in exercise of the appellate powers of this court?"
8. The arguments advanced by Mr.S.Muthuraj, learned counsel for the accused (appellant) and by Mr.P.Kandasamy, learned Government Advocate (Crl.side) representing the respondent were heard and the materials available on record were also perused.
9. At the relevant point of time, the accused Jayakumar was working as Commercial Inspector in the office of the Junior Engineer (Distribution), Tamil Nadu Electricity Board, Kurumbur, Thoothukudi District. According to the prosecution case, PW2-Karunakara Pandian submitted an application in the said office during the first week of May 2002, for a new service connection, for which registration fee was collected and the application was registered for the purpose of seniority. Before registration the accused demanded payment of a sum of Rs.1000/- as illegal gratification for quick processing of the application, preparation of the estimate and for getting sanction of the same from the Assistant Divisional Engineer. Such a demand was made prior to 13.05.2002, namely the date of registration of the application. Pointing out the fact that the registration fee was paid only on 13.05.2002 as evidenced by Ex.P3-receipt and the registration endorsement found on the first page of Ex.P2-application, learned counsel for the accused argued that it was highly improbable for the accused to have made such a demand prior to 13.05.2002. The learned counsel also argued that evidence was lacking as to what was the exact date of submission of the application. Of course, it is true that the applicant, in Ex.P2-Application, has not written the date. But there is an endorsement on the left side margin on the first page of the application indicating that the application was received on 07.05.2002 afternoon. PW2 in his complaint, marked as Ex.P7, has stated that the accused, who was the Commercial Inspector attached to the Office of the Junior Engineer (Distribution), Tamil Nadu Electricity Board, Kurumbur, Thoothukudi District, inspected the building of PW2 and informed him that almost 6 new electrical posts were to be erected for drawing the lines to his building. In his evidence also, PW2 has stated that the accused expressed his opinion that 6 new electrical posts were to be erected and that he wanted PW2 to pay him a sum of Rs.500/- meant for the accused and another Rs.500/- meant for the people in the office of the Assistant Divisional Engineer. The above said evidence of PW2 is in consonance with the averments found in Ex.P7. Without making a spot inspection, the number of posts required to be erected could not have been estimated. Hence, it is quite obvious that the application was received in the office of the Junior Engineer (Distribution), Tamil Nadu Electricity Board, Kurumbur on 07.05.2002 itself and hence the above said argument advanced by the learned counsel for the accused does not have any substance in it.
10. PW2 has also, in clear terms, deposed that he met the accused twice before 08.07.2002 for registration of his application and on those occasions the accused informed him that the file was in the office of the Assistant Divisional Engineer. The further evidence of PW2 is that, on his receipt of Ex.P4 the letter from the Junior Engineer (Distribution), on 24.06.2002 directing rectification of certain defects pointed out therein and that he complied with the same on 28.06.2002. The said part of his evidence is also in consonance with the contention of the complainant and the same remains unchallenged as he was not cross examined, making any suggestions contrary to the said fact of his alleged rectification of the defects by 28.06.2002. Ex.P4 is the letter dated 17.06.2002 addressed to PW2 by the Junior Engineer (Distribution). Therefore, it is quite probable that the same would have reached PW2 on 24.06.2002, as claimed by him. The defects pointed out in Ex.P4 are :-
1. Door number was not found written on the door;
2. Expiry date of the licence of the Wiring Contractor was not furnished;
3. The trees found in the proposed route for drawing electric lines are to be pruned or to be cut or removed by the applicant himself; and
4. A certificate from the President of the Village Panchayat to the effect that the pathway shown by the applicant as common pathway was in fact a common pathway.
Pursuant to the receipt of Ex.P4 letter, PW2 seems to have obtained Ex.P5 Certificate dated 27.06.2002 from the Village Panchayat President and submitted it to the Tamil Nadu Electricity Board. It has also been clearly stated by PW2 that the other defects pointed out in Ex.P4 letter were also rectified on 28.06.2002 itself, by having the door number written on the door, by removing the obstructions caused by the trees and by furnishing the expiry date of the licence of the wiring contractor. He was not cross examined disputing the said facts also. However, pointing out the fact that Ex.P6 house tax receipt bears the date 07.05.2002, a feeble attempt was made on the part of the accused to show that the door number could not have been originally noted in the application and the same should have been done subsequently. The said contention also is not sound. We have already seen that the application was received in the office of the Junior Engineer (Distribution) on 07.05.2002. Immediately after getting the house tax receipt, PW2 seems to have submitted an application for service connection. Moreover, door number of the building for which the service connection was applied for, seems to have been written in Ex.P2 application, simultaneously with other particulars found therein. Ex.P4 also refers to the absence of door number on the door of the building and not on the application. Under a mis-conception, as if Ex.P4 letter pointed out absence of door number in the application, the above said argument seems to have been made by the learned counsel for the accused. On the other hand, it is crystal clear from Ex.P4 that the defect pointed out was that the door number had not been written on the door of the premises. Hence, the above said argument advanced on behalf of the accused also deserves rejection, as untenable.
11. For the alleged demand made by the accused prior to 08.07.2002, the only available oral testimony is that of PW2. If at all it remained only a demand and it was not followed by the alleged receipt of money as illegal gratification, we can say that the uncorroborated oral testimony of PW2 cannot be the basis on which the accused can be found guilty for the alleged demand of illegal gratification. In this case, clear evidence has been adduced on the side of the prosecution to prove that PW2 met the accused in his office at 12.00 noon on 08.07.2002 and enquired about the fate of his application; that the accused informed him that the file had not come from the office of the Assistant Divisional Engineer; that in case PW2 would pay Rs.1000/- the next day, the accused himself would go to the office of the Assistant Divisional Engineer and get the necessary sanction and that since PW2 was not willing to pay any money to the accused as illegal gratification, he lodged a complaint to the Vigilance and Anti Corruption police on 08.07.2002 itself. The said complaint lodged by PW2 has been marked as Ex.P7. Based on Ex.P7 complaint, Ex.P14 FIR came to be prepared and a case was registered as Crime No.7 of 2002 on the file of Vigilance and Anti Corruption Wing, Thoothukudi. The defacto complainant, namely PW2, was furnished with a copy of the FIR and in token of acceptance, his signature has been obtained in Ex.P14. The signature of PW2 found in Ex.P14 has been separately marked as Ex.P8. Regarding lodging of the complaint and registration of the case, PW2 and PW4 corroborated each other. PW4 is the police officer, who registered the case based on the complaint of PW2 and arranged for the trap. PW2 also has deposed in clear terms that he was made to stay in the office of the Vigilance and Anti Corruption Wing during the entire night on the date of complaint, namely 08.07.2002 and that the next day, namely 09.07.2002 at about 11 a.m, PW3-Narayanan and one John [both government servants] came to the office of the Vigilance and Anti Corruption Wing, Thoothukudi; that PW4 introduced PW2 to those persons and similarly introduced those persons to PW2. Thereafter, as instructed by PW4, the above said witnesses went through the complaint and enquired PW2 as to whether the allegations made therein were true, which evoked an affirmative reply from PW2. Then a demonstration of phenolphthalein test used in trap cases was made and PW2, PW3 and the other witness by name John were made to realise the way in which phenolphthalein powder was used in trap cases and the importance of such test. MO.1 series containing 10 nos. of Rs.100/- notes, which PW2 had brought with him, were entrusted to PW2 after coating them smeared with phenolphthalein powder on both sides of the currency notes for which Ex.P9 Entrustment Mahazar was prepared. The entrustment mahazar contains the above said details and serial numbers of all the 10 currency notes of Rs.100/- denominations were also noted in Ex.P9-entrustment mahazar. It contains the signatures of PW2, PW3 and PW4 and of the above said John. PW2 has signed it in token of acknowledging the entrustment of phenolphthalein coated currency notes (MO-1 series) to him, whereas PW3 and John have signed it as witnesses for the demonstration and also entrustment. PW4 has signed as the officer, who prepared the mahazar. In this regard, there is uniformity in the testimonies of Pws.2 to 5 without any significant discrepancy and since they have deposed in such clear terms the non- examination of other witness John shall not in any way affect the case of the prosecution regarding demonstration of phenolphthalein test in the office of the Vigilance and Anti-corruption, entrustment of the phenolphthalein coated currency notes to PW.2 and preparation of the entrustment mahazar under Ex.P9.
12. The next part of the evidence to be considered is the evidence regarding the execution of the plan of trap. PW.2 was to be the decoy witness to make payment to the accused using the phenolphthalein coated currency notes, if the accused chose to make a demand for payment and PW.3 was nominated to be a shadow witness to accompany PW.2 and closely watch the happenings. An arrangement was also made as to how a signal would be given by PW.2 in case the accused accepted the bribe money. As per the arrangement P.W.2 should come out of the office after the receipt of the MO.1 series by the accused and give a signal by caressing his head with his left hand, whereupon the trap laying officer, namely PW.4 along with his police party and the other witnesses would emerge from the place of their hiding and enter the office of the accused to catch him red handed.
13. On the date of occurrence, namely 9.7.2002, the entire police party along with the complainant and the other two mahazar witnesses went in a police jeep and that the police jeep was stopped at a distance from the office of the Junior Engineer (Distribution), Tamil Nadu Electricity Board, Kurumbur. From there PW.2 and PW.3 were sent to the said office with advice to act as they were instructed. The police party and the other witness John were hiding in the nearby places. When PW.2 and PW.3 went to the said office of the Tamil Nadu Electricity Board at1.00 p.m, the accused was not found there and got the information that the accused would be back in the office at 2.30 p.m. P.Ws.2 and 3 came back to the place where the jeep had been parked and informed the same to PW.4 and his party. Thereafter the entire team, along with the witnesses, went to the nearby Railway Station, namely Nallur Railway Station, took rest there till 2.30 p.m and again proceeded towards the office of the Tamil Nadu Electricity Board, Kurumbur at 2.30 p.m. At about 2.40 p.m the jeep was stopped at the place where it had been parked earlier and PWs.2 and 3, who got down from the jeep, proceeded towards the office of the Electricity Board after being reminded of the earlier instructions. All the above said facts have been clearly spoken to by P.Ws.2 to 4. No contradiction or infirmity worth mentioning is found in their testimonies in this regard. The fact that the accused was not found in the office at 1.30 p.m when PW.2 and PW.3 went there for the first time on the date of occurrence, namely 9.7.2002, is not disputed. The same has been admitted by both the witnesses examined on the side of the accused as D.W.1 and D.W.2. P.Ws.2 to 4 have also clearly deposed that at the time of their second visit to the office of the Electricity Board, Kurumbur on 9.7.2002 at about 2.40 p.m, the accused was found in his seat; that the accused, besides stating that no reply from the office of the Assistant Divisional Engineer had then been received, asked PW.2 whether he had brought the money as per the earlier demand; that on receiving an affirmative answer from PW.2, the accused asked him to give it to him, following which demand, P.W.2 gave the phenolphthalein coated currency notes to the value of Rs.1,000/- marked as M.O.1 series to the accused; that the accused received the same with his right hand, counted the currency notes using both hands, put it in the right side drawer of his table and informed PW.2 that the accused would personally go to the office of the Assistant Divisional Engineer, get permission the next day itself and complete the erection of poles and drawing of lines by the Saturday of that week itself; that thereafter P.W.2 along with P.W.3 came out of the office of the accused and gave the signal as per the pre-arrangement and that it was followed by the entry of PW.4 and his police party along with the other witness John into the office of the Electricity Board.
14. Clear evidence has been adduced through P.Ws.2 and 3 that after identifying the accused to be the person to whom he paid the money, P.W.2 left that place. Both of them have clearly deposed that the seat of the accused in his office was facing east. PW.4 has also corroborated the said version of PW.2 and 3 to the effect that PW.2 identified the accused who was sitting in his chair facing east as the person to whom he paid the money and then left the place. The witnesses examined on the side of the accused as D.Ws.1 and 2 were the co-workers of the accused and their seats were in the very same room in which the accused had his seat. DW.1 was the Line man and DW.2 was the Foreman. They have admitted that the seat of the accused in the said room in the office was facing east. P.Ws.3 and 4 have provided clear testimony regarding the proceedings following the identification of the accused by PW.2 as the person who received the tainted money from PW.2. They have spoken in one voice that the Sodium Carbonate solution turned pink when the right hand fingers of the accused were dipped in the solution and that the Sodium Carbonate solution used for the left hand fingers of the accused did not show visible colour change. The containers with Sodium Carbonate solution used for testing the right and left hand fingers of the accused have been produced as M.O.2 and M.O.3 respectively. They were sent to the forensic laboratory through the court with proper seal and on examination, both the solutions were found to contain Sodium Carbonate and Phenolphthalein. Chemical Analysis Report issued by PW.7, the Scientific Officer, is Ex.P20. PW.5 was the Head clerk of the Chief Judicial Magistrate Court (Trial court), Srivaikuntam at the relevant point of time, who despatched the above said material objects to the laboratory for testing along with the covering letter of the Presiding Officer and received back the containers with the unexpended contents. Ex.P18 is the requisition sent by PW.4 to the court for sending M.O.2 and MO.3 to the forensic laboratory. A copy of the covering letter of the Presiding Officer of the trial court while sending the above said material objects to the laboratory for chemical examination is Ex.P19. A Head Constable (HC1385) had been deputed to collect the case properties from the forensic laboratory after examination. Copy of the authorization letter issued by the Presiding Officer of the court authorizing the said Head Constable to collect the case properties from the forensic laboratory is Ex.P26. Of course it is true that the Sodium Carbonate solution used for testing the left hand of the accused did not show significant colour change visible to the eyes of P.Ws.3 and
4. But, P.W.7, the Scientific Officer, noted the colour of the liquid found in M.O.2 and M.O.3 to be "pale pink turbid" and "turbid with pink tint"
respectively. A question may arise as to how the colour of the liquid in MO.3 was found to be turbid with pink tint by PW.7, when P.Ws.3 and 4 were not able to notice any significant colour change. The answer lies in the evidence of PW.7. She has stated in clear terms that the change of colour of Sodium Carbonate solution into light pink will be visible to the naked eye, if the phenolphthalein in the sodium carbonate solution is not less than 5 ppm and if the quantity of phenolphthalein is less than 5 ppm, the colour change may not be noticed by naked eye and that however on chemical analysis in the laboratory, they can clearly find out the presence or absence of phenolphthalein.
15. It is pertaining to note that both the solutions found in M.O.2 and M.O.3 were found to contain Sodium carbonate solution and phenolphthalein as per Ex.P20-chemical analysis report and as per the evidence of PW.7. PW.7 has found the presence of phenolphthalein in both the solutions by scientific analysis. The same shows that the accused could have handled M.O.1 series currency notes using both the hands. It is in consonance with the evidence of P.Ws.2 and 3 that the accused received the money using right hand, counted the same using both the hands and then put it in the right side drawer of his table. P.Ws.3 and 4 have also spoken about the fact that the accused, on being questioned about the money received by him from PW.2, took out M.O.1 series currency notes from the right side drawer of his table and placed the same on the table; that PW.3, on the instructions of PW.4, counted the same and found it to be Rs.1,000/- consisting of ten hundred rupee notes; that John, the other Mahazar witness, as requested by PW.4, compared the serial numbers of the currency notes with the serial numbers noted in Ex.P9-entrustment mahazar prepared earlier in the office of the Vigilance and Anti-Corruption wing and found them tally and that there after the said currency notes (MO.1 series) along with the file relating to the service connection application of PW.2, attendance register and the counterfoils for the receipts, were seized by PW.4 under Ex.P11-Mahazar which was attested by PW.3 and the above said John. The very same facts are found noted in Ex.P11. The entire file relating to the service connection application of PW.2 has been marked as Ex.P15. Copy of the letter dated 29.06.2012 addressed by the Junior Engineer (Distribution) to PW.2 has been marked as Ex.P24. The estimation report prepared by the accused and signed by the Junior Engineer has been marked as Ex.P25. Subsequent to the date of occurrence on 12.07.2002, the sanction for an expenditure of Rs.23,700/- was accorded by the Assistant Executive Engineer under Ex.P22. Based on the said sanction, work order was issued on 18.07.2002 as evidenced by Ex.P21. A consideration of the above said evidence will make it clear that the accused demanded a sum of Rs.1,000/- as illegal gratification for expediting the sanction of electric service connection applied for by PW.2 and received it on 9.7.2002 from PW.2 in the presence of PW.3.
16. It is also clear from the evidence that the currency notes smeared with phenolphthalein powder entrusted to PW.2 were the currency notes received by the accused as illegal gratification and the said currency notes are MO.1 series. No probable explanation has come from the accused as to how his fingers tested positive for phenolphthalein test. An attempt was made to show that the phenolphthalein powder could have been transmitted either by PW.2 and PW.3 or by the police personnel in the trap team organised by PW.4. In such an attempt alone DW.1 and DW.2 were examined on the side of the accused. Both DW.1 and DW.2 in their evidence in chief examination have stated that at about 2.35 p.m on the date of occurrence, two persons in plain cloths came to their office and both of them held the hands of the accused as if they were shaking hands with him. DW.1 would state that those two persons were holding the hands of the accused in the hand shaking position for about 20 or 30 minutes. DW.2 would say that those two persons were holding the hands of the accused in the very same manner for about half an hour. It is their further evidence in the chief examination that while those two were thus holding the hands of the accused, three other persons entered the room and they identified themselves to be the police officials belonging to Vigilance and Anti-corruption wing. Whether the said version of DWs.1 and 2 could be true has to be seen. Both of them have admitted that the accused was not present in the office between 1.00 p.m and 2.30 p.m and that the accused came to the office at 2.30 p.m. It is also an admitted fact that DW.1 and DW.2 had their seats in the very same room in which the accused had his seat. It is highly improbable that the accused would have shaken hands simultaneously with two persons using both of his hands. It is also highly improbable that the persons intended to shake hands would not be shaking hands for about half an hour.
17. A close scrutiny of the evidence of DWs.1 and 2 will show that an attempt was made to project as if either police or PWs.1 and 2 came into the office room of the accused, forcibly held his hands in the shaking position without allowing him to draw them back and thereby they could have transmitted the phenolphthalein powder, which they had already applied in their hands. Such an unusual event would have attracted the reaction of the co-workers, namely DW.1 and DW.2. They have admitted in clear terms that they did not question those persons as to why they were holding the hands of the accused in such a way. It is also their admission that nobody in the office questioned the said act. Above all, both DW.1 and DW.2 pleaded absence of knowledge as to what happened after PW.4 and his team entered the office room and introduced themselves to be people from Vigilance and Anti-corruption wing. They would simply state that they had directed DW.1 and DW.2 to resume their seats. Even though DWs.1 and 2 were admittedly in the very same room when phenolphthalein test was conducted for the hands of the accused and DWs.1 and 2 would admit that the hands of the accused were dipped in the solution, but they would state further that they did not observe whether there was any change in colour of the liquid. Both of them also pleaded absence of knowledge as to whether anyone could have entered the room in the absence of all of them and placed the tainted currency notes in the drawer of the table of the accused. They have also not spoken anything about the recovery of MO.1 series. As seen supra, MO.1 series were taken out by the accused from the right side drawer of his table and placed them on his table, whereupon the same were seized by PW.4 after getting the serial numbers compared with Ex.P19-entrustment mahazar. The admission made by DW.2 would also corroborate the case of the prosecution. He has made an admission that whenever he would come out of his office room, he would lock the table drawer with key and then go out. It is also his evidence that others in the office also would do the very same thing because the table drawers would contain very important documents. That being the case, we have to come to the conclusion that the feeble attempt made by the accused to project as if the tainted notes would have been put in his table drawer in his absence resulted in utter failure.
18. It is true that in Ex.P11-Mahazar, the serial numbers of MO.1 series have not been mentioned. But clear evidence has been adduced to the effect that the entrustment mahazar (Ex.P9) had been taken to the place of occurrence and the serial numbers of the currency notes took out by the accused from his table drawer and placed on the table were compared with the serial numbers noted in Ex.P9-entrustment mahazar and only on ensuring that the serial numbers tally with the serial numbers noted in Ex.P9-entrustment mahazar, MO.1 series were recovered under Ex.P11. Therefore, the failure to note serial numbers of the currency notes in Ex.P11-Mahazar will not help the accused in any way to demolish the case of the accused or project his defence case of innocence.
19. Yet another discrepancy pointed out on behalf of the accused is that in column 6.6 of the application of PW.2 marked as Ex.P2, originally service connection was requested for agricultural use and the same was corrected subsequently as "watchman shed and gardening". PW.2 in his cross-examination has stated that two days after the occurrence in which the accused was trapped and arrested, he was summoned to the TNEB office by the Assistant Divisional Engineer and at that point of time he was asked to correct the application by changing the purpose of service connection from "agriculture" to "watchman shed and gardening". Pointing out the said answer, the learned counsel for the appellant would contend that the said answer will falsify the case of the prosecution regarding the seizure of the entire file relating to the application of PW.2. In this regard, PW.4 was not cross-examined as to how such correction could have been made after the file had been seized by PW.4. The Investigating Officer, namely PW.8, was also not cross-examined with regard to the said aspects. Of course the same appears to be a discrepancy in the prosecution case. But, if the same is viewed in the light of the other document, namely Ex.P21- work order application and Ex.P22-estimation sanction, it will show that subsequent to the occurrence, the people in the Electricity Board sanctioned the service connection and for doing so, such a correction could have been obtained with the permission of the police. It is also pertinent to note that the evidence of PW.2 was that he wanted a service connection for manufacturing mineral water and in this regard only the accused demanded illegal gratification. The fact that the purpose of service connection had originally been noted as "agriculture", whereas PW.2 wanted a service connection for "manufacturing mineral water", will show that PW.2 wanted a service connection for commercial purpose, but since the purpose was noted as "agricultural purpose", the demand for illegal gratification seems to have been made. That is the reason why after the occurrence, the purpose of electricity supply was altered in the application and the service connection was sanctioned. Except the said discrepancy, there is no other infirmity or discrepancy found in the evidence of the prosecution. The above said discrepancy also can be termed as a discrepancy not in material aspect and hence the same would not affect the veracity of the prosecution version. The attempt made on behalf of the accused to show that PW.1 was biased and he had issued the sanction order sanctioning prosecution without properly going through the materials, has also ended in utter failure.
20. For all the reasons stated above, this court comes to the conclusion that except the minor discrepancy pointed out regarding the correction of purpose of service connection sought for, in all other respects, the prosecution has proved its case beyond reasonable doubt; that the demand and acceptance made by the accused prior to the date of occurrence, the demand and acceptance of the bribe money on the date of occurrence and the accused thus falling a prey in the trap, have all been proved by cogent and reliable evidence beyond reasonable doubt; that the court below, on a proper appreciation of evidence and application of correct principles of law, has arrived at a conclusion that the charges framed against the accused were proved beyond reasonable doubt; that the well-considered judgment of the trial court holding the accused guilty of the offences under sections 7 and 13(2) r/w 13(1)(d) of the Prevention and Corruption Act, 1988 and convicting him for the said offences, does not require any interference by this court in exercise of its appellate power. Regarding punishment also, this court is of the view that the punishment awarded by the court below is not harsh and disproportionate. Hence the judgment of the trial court deserves to be confirmed regarding conviction and sentence.
21. In the result, the criminal appeal is dismissed. The Judgment of conviction and sentence imposed in Spl.C.C.No.4/2002 on the file of the Assistant Sessions Judge-cum-Chief Judicial Magistrate (Special Judge under the Prevention of Corruption Act, 1988), Thoothukudi is confirmed. The appellant/accused is on bail. The bail bond executed by the appellant/accused shall stand cancelled forthwith and the learned Chief Judicial Magistrate/Special Judge under the Prevention of Corruption Act, 1988 Thoothukudi, is directed to take steps to secure the presence of the appellant/accused and commit him to Jail to undergo the remaining period of sentence. The period of sentence already undergone by the appellant/accused shall be set off as per section 428 of Cr.P.C.
asr/ To
1.The Special Judge under the P.C. Act 1988-cum Chief Judicial Magistrate, Thoothukudi.
2. The Principal Sessions Judge, Thoothukudi.
3.The Inspector of Police, Vigilance and Anti Corruption, Thoothukudi
4.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.