Madras High Court
N.Gunasekaran vs State By on 30 March, 2010
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.Nos.770, 771 and 779 of 1997 Crl.A.No.770 of 1997 N.Gunasekaran ... Appellant Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.M.Venkateswaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) Crl.A.No.771 of 1997 P.A.Krishnan Kutti ... Appellant Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.M.Venkateswaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) Crl.A.No.779 of 1997 Mahalingam (died) M.P.Mani ... Appellant (Amended as per order of court dated 20.02.2007 made in Crl.M.P.No.143/2007) Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.D.Shivakumaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) COMMON JUDGMENT
The accused Nos.1 and 2 in Special C.C.No.5/1994 on the file of the I Additional District and Sessions Judge cum Chief Judicial Magistrate, Coimbatore, who were prosecuted, found guilty and convicted for offences punishable under Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985 and punished with rigorous imprisonment for a period of one year and a fine of Rs.1,000/- with a default sentence of two months rigorous imprisonment in respect of each one of the charges, have come forward with the criminal appeal Nos.779/1997 and 770/1997 respectively, challenging the conviction and sentence. Similarly, the third accused in the above said Special C.C., who was prosecuted for offences punishable under Section 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985, convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- with a default sentence of rigorous imprisonment, in case of default in payment of fine, has brought-forth C.A.No.771/1997 challenging his conviction and the sentence imposed by the trial court.
2. The prosecution case, in brief, can be stated as follows:-
i) P.W.1 - Ramaraj started producing mineral water at Coimbatore to be marketed in the name of Aqua Valley Pure Mineral Water by mixing minerals with siruvani water. For the said purpose, he got the property bearing door No.19, Thendral Nagar, Veerakeralam for rent from one Ambujammal in the month of January 1993. He installed machines for cleaning the bottles to be used in the mineral water business. He had also applied to the Sales Tax department for manufacturing and marketing mineral water. Meanwhile, public in Coimbatore conducted a protest rally against another mineral water manufacturer in Coimbatore. Therefore, P.W.1 dropped his idea of manufacturing mineral water at Coimbatore and decided to have the manufacturing plant at Kottathurai in Solaiyur panchayat in Kerala state. Thereafter, the building bearing door No.19, Thendral Nagar, Veerakeralam was proposed to be used for stocking the mineral water bottles. He was supplied with 8,000 PVC bottles by P.V.C Plast Limited, Ahmedabad on 30.07.1993. As a bad odour emanated from the bottles, P.W.1 started the work of cleaning the bottles on 01.08.1993 by engaging eight women from the area. Four days thereafter, he made 500 to 600 bottles to be filled up with siruvani water to find whether any such bad odour emanated.
ii) On 06.08.1993 at about 11.00 a.m, the first accused and about ten persons employed in his office (Veerakeralam Panchayat) went to the above said address, seized 400 bottles filled with siruvani water and 2000 empty bottles on the premise that complaints were received by the Collector to the effect that mineral water was being manufactured in the said premises without proper permit or license and that as per the Collector's instructions, he conducted an inspection and found the same to be true. Not accepting the contention of P.W.1 that he was not manufacturing mineral water in the said address and that he was manufacturing mineral water only in Kerala, the said articles were seized by the first accused. In addition to that the drinking water connection given to the said building was also disconnected. The building was also sealed.
iii) Thereafter, P.W.1 - Ramaraj and his friend Sundarasamy (P.W.3) met the first accused at about 3.00 p.m on 06.08.1993 and explained that P.W.1 was not manufacturing mineral water in the said place. The first accused demanded a sum of Rs.15,000/- for returning the articles seized from the above said premises. The first accused also informed P.W.1 that in case a sum of Rs.15,000/- was paid to him he would get permission/license to manufacture mineral water in the above said address itself. He also promised to return the photographs taken at the time of raid, if his demand for payment of Rs.15,000/- was met with. Again on 09.08.1993, P.W.1 met the first accused and informed him that he could not afford to pay a sum of Rs.15,000/-, pursuant to which the first accused reduced his demand by Rs.2,000/- and demanded payment of Rs.13,000/-. The first accused also caused a threat to P.W.1 that he could not do his business without paying the amount demanded by him as bribe. Thereafter, the first accused enquired P.W.1 whether he had brought money, which was answered in the negative. Then the first accused compelled P.W.1 to give two cheques (marked as M.Os.1 and 2) without naming the payee for a sum of Rs.3,000/- and Rs.2,000/- respectively. The first accused then asked P.W.1 to make the payment of Rs.13,000/- at the residence of the third accused Krishnan- Kutti before 10.00 p.m on 13.08.1993. The first accused also informed P.W.1 that the first and second accused would come to the residence of the third accused Krishnan Kutti to receive the said amount and that they would return the cheques and the seized bottles etc., on payment of the above said amount by P.W.1.
iv) As P.W.1 did not have ready cash, at his request, P.W.3-Sundarasamy arranged the said amount to be paid to the first accused. After arranging the said amount, P.W.1 engaged a lorry to bring the seized bottles. Thereafter, P.W.1 had a second thought, as a result of which, he lodged a complaint under Ex.P2 to the Inspector of Police, Vigilance and Anticorruption wing, Coimbatore at about 5.30 p.m on 13.08.1993. P.W.18 - K.K.Krishnan, the then Inspector of Police, Vigilance and Anticorruption wing, Coimbatore prepared Ex.P3 - First Information Report and registered a case in Cr.No.2/93/AC/CB. Thereafter P.W.1 was asked to leave the Vigilance and Anticorruption office and come back at 7.00 p.m. When P.W.1 went there at 7.00 p.m along with a sum of Rs.13,000/-, P.W.18 - Inspector of Police, Vigilance and Anti-corruption had invited Raveendran (P.W.2) and one Kannan to be the witnesses. In the presence of the said witnesses a demonstration was made as to how phenolphthalein test is conducted in trap cases. The amount brought by P.W.1 consisted of 130 notes of 100 rupees denomination. P.W.18 - Inspector of Police caused the said currency notes coated with phenolphthalein powder after noting the serial numbers of the currency notes in Ex.P4 - Mahazar prepared in the office of P.W.18, bundled into two bundles (one consisting of 100 notes and other consisting of 30 notes) and re-entrusted the same to P.W.1 with instructions to give the same to the first accused Mahalingam only if he demanded it. Thereafter, the lorry engaged by P.W.1 was also brought to the office of the Vigilance and Anticorruption wing. P.W.2 - Raveendran was asked to accompany P.W.1 and note the happenings. All of them along with the police party, then went to P.W.1's godown at Thendral Nagar. After reaching the said place, P.Ws.1 and 2 alone were directed to go to the residence of the third accused Krishnan-Kutti. When they went to the residence of Krishnan-Kutti, there was drizzling. The son of A3 (Krishnan-Kutti) welcomed them and informed them that his father wanted them to wait for his arrival. Within 10 minutes thereafter, the third accused Krishnan Kutti came there. As he was wet with rain water, he went inside to change his clothes. A3 informed him that A1 would not come as it was raining and A2-Gunasekaran alone would come with the cheques and keys and that P.W.1 could get the cheques from A2 on making payment of a sum of Rs.13,000/-, whereupon the second accused would break the seal and open the door of the go-down enabling (P.W.1) to take his articles. For a query made by A3, P.W.1 informed him that Reveenderan was a manager in his company manufacturing mineral water in Kerala.
v) As it was still raining, A3 sent an auto to bring A2. Ten minutes later, A2 - Gunasekaran came there in the auto. On his arrival, A2 asked P.W.1 to make payment of Rs.13,000/- and take all the articles in the lorry except a few bottles and the sterilizing machine to be kept in a room. At that juncture, P.W.1 reminded him that earlier he was informed he could take all the goods after making such payment. At that juncture A2 said that he was acting on the instructions given to him and if at all P.W.1 wanted any change, then he should meet A1 and discuss the same with him. Thereafter, P.W.1 along with P.W.2-Raveendran, A2 - Gunasekaran and A3 - Krishnan Kutti proceeded in the very same auto to the residence of the first accused. The police party also followed them as per the signal given by P.W.1. At about 12.00 midnight, P.W.1, P.W.2 - Raveendran along with the second and third accused reached the house of A1. Though the second accused alone went inside the house, came out and informed that P.W.1 alone was asked to come inside, P.W.1 and P.W.2 Raveenderan went inside. A2 - Gunasekaran and A3 - Krishnan Kutti also entered the house. P.W.2 - Raveendran was introduced as the Manager of Kottathurai Mineral Water Company. When the first accused asked P.W.1 whether he had brought the money, he took out the two bundles of cash coated with phenolphthalein powder, one containing Rs.10,000/- and the other containing Rs.3,000/-, and handed them over to the first accused. First accused received the same using both hands, kept the bundle containing Rs.10,000/- for himself, handed over the other bundle containing Rs.3,000/- to A2-Gunasekaran and informed P.W.1 that he could take all items of property seized. However, he informed A2 - Gunasekaran to hand over photographs and the cheque for the sum of Rs.3,000/- alone along with all other articles and retain the cheque for the sum of Rs.2,000/- alone.
vi) At that juncture P.W.1, in the pretext of answering natural's call, went out and gave a signal to the police as per the pre-arrangement by lighting the torch light he had kept in his scooter. Thereafter, P.W.18-the Inspector of Police rushed into the house of A1, conducted phenolphthalein test for the hands of A1 and A2, recovered the amount paid as bribe, namely M.O.6 series and arrested Accused 1 to 3. The Sodium Carbonate solution used for conducting phenolphthalein test and the control Sodium Carbonate solution were also packed and sealed separately. Later on they were sent to the forensic lab for chemical examination. On analysis in the forensic lab, all those solutions used for phenolphthalein test for the fingers of the Accused 1 and 2 were found to contain phenolphthalein and the control Sodium Carbonate solution did not contain phenolphthalein. After the successful conduct of the trap operation, the investigation of the case was conducted by P.W.19 - Jayapandian, another inspector of police, Vigilance and Anti-Corruption. P.W.19 examined and recorded the statements of witnesses, obtained sanction order under Ex.P7 from P.W.5 - Hansraj Varma, I.A.S., the then Director of Town Panchayat, Madras for prosecuting the accused persons and submitted a final report accusing Accused 1 and 2 for offences punishable under Sections 7 of the Prevention of Corruption Act, 1985 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985 and accused No.3 for offences punishable under Sections 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985.
3. On appearance of the appellants/accused 1 to 3 before the trial court, they pleaded innocence. Charges were framed by the trial court for offences punishable under Sections 7 of the Prevention of Corruption Act, 1985 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985 against A1 and A2 and against A3 for offences punishable under Sections 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985. The appellants/Accused 1 to 3 denied the said charges, pleaded not guilty and wanted the case to be tried.
4. In order to substantiate the prosecution case, prosecution examined P.Ws.1 to 19 and marked 26 documents as Exs.P1 to P26 and produced 15 material objects as M.Os.1 to 15. After recording of evidence on the side of the prosecution was over, the accused persons were questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. Each one of the accused denied them as false and once again all the three accused persons reiterated their stand that they were innocent and that the case was foisted by P.W.1. Accused 1 to 3 have also filed individual written statements. On their side, no witnesses was examined and no document was marked.
5. The trial judge heard the arguments advanced on either side, considered the evidence brought before him in this case in the light of the points urged in such arguments and upon such consideration, came to the conclusion that the prosecution proved the charges beyond reasonable doubt, convicted the accused and imposed sentence, as cited supra, in the judgment of the trial court dated 22.09.1997.
6. Aggrieved by the same and challenging the conviction recorded and the sentence imposed in the judgment dated 22.09.1997, the appellants have preferred these appeals on various grounds set out in the appeal petitions.
7. The point that arises for consideration in this appeal is as follows:-
"Whether the judgment of the trial court convicting and sentencing the appellants for the offences under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 r/w 109 Cr.P.C suffer from any defect or illegality, capable of being interfered with in exercise of the appellate powers of this court?"
8. Advancing arguments on behalf of the appellants, Mr.M.Venkateshwaran, learned counsel for the appellants/Accused 2 and 3 and by Mr.D.Shivakumaran, learned counsel for the appellant/Accused 1 submitted that the judgment of conviction and the sentence imposed on all the appellants were against weight of evidence, unsustainable in law and liable to be reversed by this court in exercise of its appellate powers. The learned counsel for the appellants contended further that there were many improbabilities and imponderables, which had not been considered by the court below; that the court below would have held that none of the charges framed against the appellants stood proved, had it properly considered the in-built contradictions and improbabilities found in the evidence of the prosecution; that all the witnesses including the police officers who conducted the trap operation and the police officer who investigated the case, were not disinterested independent witnesses and obviously they were biased; that the court below failed to note the very fact that the appellant in Crl.A.No.779/1997 (first accused) was sought to be disturbed at midnight, that too when there was heavy rain pour; that the court below failed to consider the explanation offered by the appellants/accused in its proper perspective and that the court below failed to notice the improbability of the prosecution story in taking a lorry to the Vigilance and Anti-corruption office at the first instance, then to the residence of the third accused and then to the residence of the first accused and that every aspect of the prosecution case regarding the trap operation was a stage-managed show.
9. The learned counsel for the appellants contended further that P.W.1 - the de-facto complainant was very much known for his indulgence in unlawful activities which was admitted by him during cross-examination; that P.W.1 who was running a mineral water manufacturing unit, without proper license, was using siruvani water supplied for domestic drinking purpose; that the court below failed to properly appreciate the fact that the bottles and machines used for that purpose were seized by the first accused along with the sterilizing machine in exercise of the powers conferred on him and a report of the same had been sent to the Collector for further action; that the court below failed to notice the fact that after such a report was sent to the District Collector, the Executive Officer of Veerakeralam Town Panchayat could not release the same without the orders of the Collector and hence the same would improbablise the case of P.W.1 that A1 demanded a sum of Rs.15,000/- at the first instance and then reduced the demand to Rs.13,000/- for releasing the articles seized and for removing the seal affixed to the premises at No.19, Thendral Nagar, Veerakeralam, which was used by P.W.1 as a manufacturing unit for the production of mineral water; that the court below failed to note the untenability of the contention of P.W.1 that he had proposed to manufacture mineral water in Kerala state and to use the premises at door No.19, Thendral Nagar as a godown for stocking the bottles and cleaning the bottles for being used in the mineral water business; that the court below failed to notice the intelligent improvement and embellishment made by P.W.1 to show that he was making arrangements for setting up a manufacturing unit in Kerala state and he was using the premises bearing door No.19, Thendral Nagar, Veerakeralam only as a godown for stocking the empty bottles and as a washing unit meant for cleaning the bottles to be used as containers for his mineral water business; that the court below failed to note a vital contradiction in the evidence of P.W.1, as to where from he took the torch light to give signal to the police; that the fact that there was no explanation as to how the scooter which had been parked near the house of A3 came to the place near the house of A1 to enable P.W.1 to take out the torch light from the scooter and give signal to the police officers, was not properly appreciated by the court below and that had the court below bestowed its attention to the above said improbabilities and contradictions, it would have held that none of the charges against the accused was proved beyond reasonable doubt and acquitted all of them.
10. The learned counsel for the appellants contended further that, viewed from any angle, the conviction of the appellants for the respective offences with which they stood charged and the punishment imposed for the said offences could not be sustained in law and that the appellants were entitled to be acquitted giving the benefit of doubt, as there were reasonable doubts in the prosecution case regarding the offences allegedly committed by the appellants. It is also the contention of the learned counsel for the appellants that the property sealed by the first accused was opened after removing the seals and possession was handed over to P.W.1 by the Investigating Officer himself, without even getting the orders of the Collector and that is why the Investigating Officer had not produced the order of the Collector at the first instance; that even the order directing the release of the goods, removal of the seal and handing over of the property to P.W.1 was subsequently created and produced as Ex.P26 and that the same is obvious from the absence of signature of the Collector in it and the office note containing the signature of the Collector was also not produced.
11. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl.Side) in answer to the above said contention of the learned counsel for the appellants were also heard. The entire evidence, both oral and documentary, and other material records were also perused and this court paid its anxious considerations to the same.
12. Mr.Mahalingam, appellant in C.A.No.779/1997 (first accused) was the Executive Officer of Veerakeralam Town Panchayat and hence admittedly he was a public servant. Mr.N.Gunasekaran, the appellant in C.A.No.770/1997 (second accused) was a clerk employed in the office of the Veerakeralam Town Panchayat and hence it is also not in dispute that he was a public servant as on the date of the alleged occurrence. So far as Krishnan Kutti, appellant in C.A.No.771/1997 is concerned, admittedly he is not a public servant. He has been prosecuted for an offence punishable under Section 12 of the Prevention of Corruption Act, 1985 as he abetted the commission of an offence punishable under section 7 of the said Act by the accused 1 and 2. He is also said to have committed the offence punishable under Section 13(2) read with Section 13(1)(d) read with Section 109 IPC. The charge framed against him is reproduced for better appreciation.
VERNACULAR (TAMIL) PORTION DELETED
13. It is an admitted case of both the prosecution as well as the appellants that on 06.08.1993, the appellant in C.A.No.779/1997 (first accused), who was the then Executive Officer of Veerakeralam Town Panchayat, conducted a search in the premises bearing door No.19, Thendral Nagar, Veerakeralam on information that the said building was used as a manufacturing unit to manufacture mineral water from siruvani water supplied by the Town Panchayat for domestic use and hundreds of bottles filled with siruvani water and several empty bottles along with the sterilizing machine used for washing the bottles were seized. It is also admitted that due to the said violation, the water supply to the building was disconnected and the building was sealed pending further proceedings. Under such circumstances alone, P.W.1 claims to have approached the first accused for the release of the goods seized and for removing the seal put to the premises, whereupon the first accused allegedly demanded a sum of Rs.15,000/- at the first instance and then reduced the demand to Rs.13,000/-.
14. Three persons, namely Mahalingam, Gunasekaran and Krishnan Kutti were jointly prosecuted in Spl.C.C.No.5/1994 dated 22.09.1997 on the file of the learned I Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore and the trial resulted in their conviction for the offences with which they stood charged. Mahalingam (A1) was prosecuted for offences punishable under Section 7 of Prevention of Corruption Act under charge No.1 and for an offence punishable under Section 13(2) r/w 13(1)(d) under charge No.3. Gunasekaran (A2) was prosecuted for an offence under Section 7 under charge No.2 and for an offence under Section 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985. Charge No.4 was framed as against Krishnan Kutti (A3). Ultimately, all the three persons were convicted for the respective offences with which they stood charged. Mahalingam and Gunasekaran were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- with a further direction to undergo two months rigorous imprisonment in case of default in payment of fine for the offence under Section 7 of the Prevention of Corruption Act. For the offence under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, Mahalingam and Gunasekaran were sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,000/- with a default sentence of two months rigorous imprisonment. So far as Krishnan Kutti is concerned he was prosecuted and convicted for an offence under section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,000/- with a default sentence of two months rigorous imprisonment.
15. All the three chose to file separate appeals challenging their conviction and sentence imposed on them. C.A.No.770 and 771 of 1997 have been filed by Gunasekaran (A2) and Krishnan Kutti (A3) respectively. C.A.No.779 of 1997 was filed by Mahalingam (A1). During the pendency of the appeal, Mahalingam (A3) died which resulted in the abatement of the charge against him. As such, even the confirmation of sentence will be of no use, as Mahalingam (A1) is no more. However, to nullify the evil consequences of the conviction on the service benefits of Mahalingam who was working as Executive Officer as on the date of occurrence, his son M.P.Mani has obtained the leave of the court to pursue the appeal.
16. Mahalingam (A1) was employed as the Executive Officer of Veerakeralam Town Panchayat, Coimbatore District during the relevant period. It is not in dispute that, as the Executive Officer of the said town panchayat, he inspected the premises bearing door No.19, Thendral Nagar, Veerakeralam on 06.08.1993 along with his subordinates at about 8.30 a.m and found that the said building was used for preparing mineral water using Siruvani drinking water supplied by the town panchayat for domestic use. On coming across such an unauthorised use of drinking water supplied by the local authority, he seized 456 bottles filled with purified mineral water and 577 empty bottles kept in the said building for being used as containers of mineral water. The water supply connection to the said building was cut under the instruction of Mahalingam (A1), the then Executive Officer of Veerakeralam town panchayat. The machineries used for preparation of mineral water and for washing the bottles were also seized but were not removed from the said premises. However, Mahalingam (A1), the then Executive Officer of Veerakeralam town panchayat, chose to seal the said premises allegedly used for manufacturing mineral water. Other seized materials were taken in a vehicle to the office of Veerakeralam Town Panchayat and kept there in safe custody. After the said inspection, seizure of goods and sealing of the premises, Mahalingam (A1) sent a report marked as Ex.P17 to the District Collector on 06.08.1993 itself informing the said facts. Door No.19, Thendral Nagar, Veerakeralam was in the possession and enjoyment of P.W.1-Ramaraj, the de-facto complainant, as a tenant. All the goods seized by Mahalingam (A1) and the machineries and the other equipments found in the said premises on 06.08.1993 were that of P.W.1-Ramaraj. All the above are not disputed, but are admitted facts.
17. The case of the prosecution is that during the course of the seizure of all the bottles filled with water and empty bottles and sealing of the premises, P.W.1-Ramaraj arrived at the said place of occurrence and Mahalingam (A1) arranged for taking photographs of the same. The photographs taken and their negatives have been produced and marked as M.O.7 series and M.O.12 series. P.W.8-Viswanathan has spoken about the same. It is quite immaterial and irrelevant to go into the question whether the act on the part of Mahalingam (A1) in conducting a search, effecting seizure of the bottles filled with water and empty bottles and sealing the premises, was in accordance with law or not? He was not charged with committing such an act not authorised by law. On the other hand, the case of the prosecution is that after such seizure and sealing made by Mahalingam (A1), P.W.1-Ramaraj approached Mahalingam with a request for releasing the articles seized and for removing the seal and at that juncture, Mahalingam demanded a sum of Rs.15,000/- as illegal gratification for complying with the request made by P.W.1.
18. It is the further case of the prosecution that the said demand was made on 06.08.1993 at 3.00 p.m; that subsequently when P.W.1 met Mahalingam again on 10.08.1993, Mahalingam reduced the demand to Rs.13,000/- and obtained two cheques for the values of Rs.3,000/- and Rs.2,000/- respectively as security for the payment of the above said sum of Rs.13,000/- demanded as illegal gratification and that pursuant to the said incident, P.W.1 lodged a complaint with P.W.17 under Ex.P2, based on which a case was registered in Cr.No.2/93/AC/CB by preparing the first information report under Ex.P3. According to the prosecution case, pursuant to the registration of the said case, a trap operation was conducted by P.W.17 in which Mahalingam was caught on his receiving Rs.13,000/- as illegal gratification from P.W.1 out of which he retained Rs.10,000/- and handed over Rs.3,000/- to Gunasekaran (A2) as his share. Therefore, we have to consider the evidence adduced on the side of the prosecution regarding the alleged demand made on 06.08.1993, the reduced demand made on 10.08.1993, the receipt of cheques for the sums of Rs.3,000/- and Rs.2,000/- on 10.08.1993, the alleged occurrence that took place in the house of Mahalingam (A1) at about 12.00 mid night on 13.08.1993 and the alleged recovery of M.O.7 and M.O.12 series - photographs and negatives and M.Os.1 and 2 - cheques.
19. The alleged articles recovered in the office of Veerakeralam Town Panchayat on 14.08.1993 include the cheques produced and marked as M.Os.1 and 2. According to the testimony of P.W.1, while the Executive Officer (Mahalingam -A1) along with his office people was in the process of loading the seized articles (bottles filled with water and empty bottles) and sealing the premises allegedly used by P.W.1 for manufacturing mineral water using the siruvani water supplied by the local body for domestic use without proper license of permit, he along with his friend P.W.3-Sundarasamy reached the place of occurrence and informed Mahalingam 'A1' that he was not using the said premises as a factory for manufacturing mineral water and that he was using it only as a godown after making arrangements for getting license for setting up a factory in Kerala State. It is his further evidence that Mahalingam (A1) asked him to bring the records and hence at about 3.00 p.m on 06.08.1993 itself, accompanied by P.W.3 - Sundarasamy, he again met Mahalingam (A1) in his office and produced the documents in support of his contention and that at that point of time Mahalingam (A1) demanded a sum of Rs.15,000/- as illegal gratification for releasing the seized goods and for removing the seals put to the premises allegedly used by P.W.1 for manufacturing mineral water.
20. It is P.W.1's specific evidence that at about 11.00 a.m when he met Mahalingam (A1) at the first instance in the scene of occurrence and then at 3.00 p.m in his office, P.W.1 was accompanied by P.W.3-Sundarasamy. The same has also been corroborated by P.W.3-Sundarasamy. But, as rightly pointed out by the learned counsel for the appellants, the introduction of P.W.3 was made as a result of after-thought and as an improvement over the complaint given by P.W.1 marked as Ex.P2. The complaint given by P.W.1 on 13.08.1993, based on which the case was registered and the trap was arranged, has been marked as Ex.P2. The averment to the effect that Sundarasamy - P.W.3 accompanied Ramaraj - P.W.1 on 06.08.1993 at about 11.00 a.m when he went to the place of occurrence in Thendral Nagar and at 3.00 p.m on the same day when P.W.1 again met Mahalingam (A1) in his office is conspicuously absent in Ex.P2-complaint. On the other hand, it has been averred in the complaint that P.W.1 was accompanied by P.W.3 when P.W.1 met Mahalingam (A1) at about 10.00 a.m on 10.08.1993. This court has to accept the contention of the learned counsel for the appellants that there has been improvement and embellishment of the prosecution case over the contents of the complaint after deliberation by introducing a close friend of P.W.1 as an eye witness for the occurrences that allegedly took place at 11.00 a.m and 3.00 p.m on 06.08.1993. Therefore, the evidence of P.Ws.1 and 3 to the effect that P.W.3 was also an eye witness for the occurrence at 11.00 a.m on 06.08.1993 and for the alleged demand made at 3.00 p.m on the same day in the office of Veerakeralam Town Panchayat has to be rejected as unbelievable. There is no other direct evidence, except the interested testimony of P.W.1 for the alleged demand made by Mahalingam (A1) at 3.00 p.m on 06.08.1993 in his office.
21. Coming to the question of proof of alleged demand made on 10.08.1993, P.Ws.1 and 3 alone happened to be the witnesses who have spoken about it. According to the contents of Ex.P2 complaint, both Ramaraj (P.W.1) and Sundarasamy (P.W.3) met Mahalingam (A1) at his office and requested him to return the seized articles expressing P.W.1's inability to arrange for the funds for making payment to Mahalingam as he demanded and only thereafter, Mahalingam reduced the demand to Rs.13,000/- and obtained two cheques for Rs.3,000/- and Rs.2,000/- respectively as security for payment of the illegal gratification demanded by Mahalingam (A1). It is quite surprising to hear from P.W.1 that an officer who was demanding illegal gratification to the tune of Rs.13,000/- coerced P.W.1 to give two cheques, one for a sum of Rs.3,000/- and the other for a sum of Rs.2,000/- as guarantee for the payment of the illegal gratification demanded by him. As rightly pointed out by the learned counsel for the appellants that, if at all the first accused watned to have any such security, he would not have chosen to get cheques to the total value of Rs.5,000/- alone which is 8,000/- rupees less than the amount demanded by him.
22. There is no clear-cut evidence to prove that the said cheques were recovered from Mahalingam (A1). On the other hand, evidence has been led to the effect that the said cheques marked as M.Os.1 and 2 were recovered on 14.08.1993 from the table-drawer of Gunasekaran (A2) in the office of Veerakeralam Town Panchayat. Along with the cheques, photographs marked as M.O.7 series, their negatives marked as M.O.12 series and the bill for the same marked as Ex.P9, were also recovered from the drawer of Gunasekaran (A2). The mahazar for the recovery of the same has been produced and marked as Ex.P11. The said recoveries were allegedly made in the presence of one Srinivasan, Village Administrative Officer of Veerakeralam and one Angamuthu. Out of the two attesters of Ex.P11, Srinivasan alone has been examined as P.W.14. The other attester has not been examined as a witness. For the question whether the table-drawer from which the said cheques were allegedly taken out and handed over by Gunasekaran (A2), the answer given by the Investigating Officer, namely P.W.19 is evasive. It is the evidence of P.W.19 that he could not recollect from his memory as to whether the drawer had been locked. On the other hand, P.W.14-Srinivasan would state in his evidence that the Inspector got the key from A2-Gunasekaran and the Inspector himself opened the table drawer. The evidence of P.W.14 is to the effect that, in the presence of the second accused, the Inspector of Police searched the table drawer of the second accused and took out two cheques for the values of Rs.3,000/- and Rs.2,000/- respectively and seized them under mahazar, Ex.P11.
23. The evidence of P.W.19, the Investigating Officer is quite contra to the above said evidence of P.W.14. According to P.W.19, he took the second accused to the office of the Veerakeralam Town Panchayat and the second accused took out the cheqeus marked as M.Os.1 and 2 from his table-drawer and handed them over to P.W.19. In this regard, there is a remarkable and vital contradiction between the evidence of P.W.14 and P.W.19. In addition to the above said contradictions, there is yet another discrepancy found in M.O.2. Though the amount was written in numerals as "2,000/-", in letters it was written only as "Rupees two hundred". There is no explanation as to how such a vital discrepancy was found. It is quite improbable for the first accused to have obtained such a defective cheque. It is not the case of the prosecution that the cheque was given for a sum of Rs.200/- alone and the same was altered by adding a cypher to make it Rs.2,000/-. Suppose the amount found in figures is "200" and the amount written in letters is "two thousand", then we may assume that a mistake had crept in while noting the amount in figures. That is not the case of the prosecution. The absence of any explanation for the discrepancy on the part of the prosecution also will create a suspicion in the prosecution case that the cheques were given by P.W.1 as security for the payment of illegal gratification demanded by A1-Mahalingam and the said cheques were later on recovered by P.W.19 in the presence of P.W.14 and one Angamuthu. P.W.14 alone has referred to the above said discrepancy found in the cheque. Other witnesses, namely P.W.1, P.W.3 and P.W.19 have not even referred to such discrepancy.
24. In this regard, the evidence of P.W.4 assumes importance. He is the auto driver in whose auto Accused 2 and 3 along with P.W.1 and 3 went to the residence of the First Accused on 13.08.1993 and after their arrest, the accused were transported to the office of the Vigilance and Anti-corruption Wing. It is the evidence of P.W.4 that after the occurrence (trap) the accused persons were transported to the Vigilance and Anti-Corruption office and were kept there till 2.00 p.m on 14.08.1993. The evidence of P.W.18 in this regard is that after the trap operation, he conducted a searc4h in the house of A1-Mahalingam and then took the accused persons along with seized materials to the office of the Vigilance and Anti-Corruption Department, Coimbatore. It is his further evidence that the accused were released on their own bond on 14.08.1993 at 5.00 a.m. If at all the accused were released on bail at 5.00 a.m, when were they again summoned by the Investigating Officer, namely P.W.19? There is no clear cut answer. According to P.W.19, all the three accused had been released on bail when he took up the case for investigation based on the order of the Deputy Commissioner, Vigilance and Anti-Corruption Department, Coimbatore. The accused had been made to be awakened throughout the night on 13.08.1993 and were released on there own bond at 5.00 a.m on 14.08.1993, as seen from the evidence of P.W.18. As such they could not have been summoned within five hours thereafter. After having been released on their own bond, whether the accused 1 to 3 were allowed to go home or were asked to wait in the office of the Vigilance and Anti-Corruption department till they were examined by P.W.19? - There is no evidence in this regard. If at all, all the accused were available in the office of the Vigilance and Anti-Corruption wing, Coimbatore at 10.45 a.m on 14.08.1993, why A2 alone was taken to the office of Veerakeralam Town Panchayat and what was the reason for not taking A1 has not been explained.
25. It is not the case of the prosecution that confession statements of the accused led to the discovery of the concealment of the said documents and hence accused No.2 was taken to the office of the Veerakeralam Town Panchayat for the purpose of recovery of the cheques and other documents. In fact, the prosecution does not rely on any information furnished by any of the accused leading to the recovery of the said cheques. In addition to the above said discrepancies, P.W.14 and P.W.19 were evasive in their answers as to who was in charge of the office from which M.Os.1, 2, 7 (series) and 12 (series) and Exs.P1, P17, P22 and P23 were recovered by P.W.19. The place wherein the search was made and the recoveries were made was a public office, namely office of the Veerakeralam Town Panchayat. Therefore, someone ought to have been in-charge of the office at the moment the alleged search and recovery were made in the said office. Apart from the fact that the Investigating Officer has failed to inform the person in charge of the office and on the other hand has conducted the search and recoveries in his absence. There is evidence to the effect that the Investigating Officer and the attesters were not aware of who was in charge of of the office at that point of time. It is not the case of the prosecution that A1 - Mahalingam was placed under suspension even prior to the alleged search and recoveries made in the office of the Veerakeralam Town Panchayat on 14.08.1993 at about 10.45 a.m. When that is so, P.W.19, the Investigating Officer ought to have taken the first accused, who was the Executive Officer of the said town panchayat, when he is not in a position to say that there was some other officer in-charge of the office.
26. If all the above said factors are taken into consideration and the evidence of prosecution in this regard is considered in the light of the contradictions and discrepancies pointed out supra, one can come to a conclusion that the theory of recovery of M.Os.1 and 2 cheques from the second accused is surrounded by reasonable suspicion and hence the same has to be held as not proved beyond reasonable doubt. Apart from the said contradictions and discrepancies that we give rise to a reasonable suspicion that such recovery could not have been made, there is yet another vital discrepancy found in the prosecution story. The cheque numbers are provided as 086967 and 086968 in Ex.P2 complaint which is also reflected in Ex.P3-FIR. P.W.1 in his evidence has not furnished either the cheque numbers or the account number. P.W.3 also does not speak about the cheque numbers. The mahazar witness P.W.14 also has not stated anything about the cheque numbers. The cheque numbers found in Ex.P2-complaint tally with the cheque numbers found in Ex.P11-Mahazar. However, Ex.P11-Mahazar alone contains the account number as 1966 maintained in the Sukravarpet branch of Karur Vysya Bank. P.W.19 refers to the account number alone and not the cheque numbers. The recovery of the cheques were disputed by the accused persons (the first and second accused). When such is the case, the prosecution should have come forward with clear evidence to show that the said cheques were pertaining to the account maintained by P.W.1. There is no evidence, not even a whisper, as to who was the account holder. The prosecution ought to have led evidence to show that the cheques were pertaining to the bank account maintained by P.W.1. Neither Pass-book nor statement of accounts, to prove the same, has been produced. No bank official has been examined. The above said discrepancy creates vacuum in the prosecution theory, which shall definitely give rise to a reasonable suspicion regarding the prosecution case. For the said reason also, this court comes to the conclusion that the alleged recovery of M.O.1 and M.O.2 cheques from the table drawer of A2-Gunasekaran has not been proved by cogent and reliable evidence.
27. Apart from the infirmities and discrepancies found in the prosecution theory regarding the recovery of M.Os.1 and 2 cheques, there are material discrepancies found in the evidence adduced on the side of the prosecution relating to the trap operation itself. P.W.18 (Inspector of Police) is the person who received the complaint and registered a case based on Ex.P2-complaint lodged by P.W.1 on 13.08.1993. According to the endorsement made on Ex.P2 and the particulars found in Ex.P3-FIR, the complaint was lodged and the case was registered at 5.30 p.m on 13.08.1993. After registration of the case, P.W.18 arranged for a trap for which he invited P.W.2-Raveendran, a junior assistant employed in the office of the Divisional Deputy Director, Government Examinations, Coimbatore and one Kannan employed in the Tamil Nadu Electricity Board to be the witnesses for the trap. The above said Kannan has not been examined on the side of the prosecution. Raveendran (P.W.2) is the person who is alleged to have accompanied P.W.1 at the first instance to the residence of A3-Krishnan Kutti and then to the residence of A1-Mahalingam.
28. So far as the demonstration made in the office of the Vigilance and Anti-corruption, Coimbatore before P.W.1, P.W.2 and Kannan and preparation of the Mahazar thereafter regarding the preparations made at the said office before proceeding to the place of the accused for executing the trap operation are concerned, the witnesses P.W.1, P.W.2 and P.W.18 has spoken in one voice without material contradictions. They have also spoken to the effect that after demonstrating how the phenolphthalein test would be useful in trap cases, the currency notes brought by P.W.1, arranged into two bundles-one amounting to Rs.10,000/- and the other amounting to Rs.3,000/-, were re-entrusted to P.W.1 after the said currency notes were coated with phenolphthalein powder, with instructions to give the money to the accused, if they made a demand. They have also spoken to the effect that the serial numbers of the currency notes were noted in the above said mahazar Ex.P4. But, there are contradictions, infirmities and improbabilities regarding the case of the prosecution as to how trap was actually conducted.
29. According to the prosecution case, P.W.1 chose to prefer the complaint under Ex.P2 after he had made up his mind not to make payment of the illegal gratification allegedly demanded by Mahalingam-A1. The complaint was lodged at 5.30 p.m on 13.08.1993. But, even before that he had arranged the amount, namely Rs.13,000/- to be paid to Mahalingam (A1) as illegal gratification. There is discrepancy in the evidence of P.W.1 and P.W.3 as to how the said amount was arranged by P.W.1. According to the testimony of P.W.1, he requested P.W.3 to lend him the above said sum of Rs.13,000/-; P.W.3 replied that he did not have such a huge amount; thereafter on his insistence, P.W.3-Sundarasamy went out; borrowed a sum of Rs.13,000/- from others; returned with the said amount and gave it to P.W.1. The same occurred after 12.00 p.m and before 5.30 p.m on 13.08.1993. But the evidence of P.W.3 is slightly contra to that of P.W.1. He has simply stated that P.W.1 wanted him to lend a sum of Rs.13,000/- and thus he lent the amount to P.W.1. He has not corroborated P.W.1's statement that at the first instance P.W.3 replied that he was not having such an amount to be lent and that only after insistence by P.W.1, he went out, borrowed the amount from others and lent the money to P.W.1.
30. According to P.W.1's evidence after receiving the said amount from P.W.3, he went to the lorry stand and arranged for a lorry and only thereafter he changed his mind and decided not to pay any illegal gratification, as a result of which he prepared a complaint in writing, took it to the office of the Vigilance and Anti-corruption and handed it over to P.W.18. When such is the case, it was quite improbable for P.W.1 to have taken the lorry along with him to the residence of third accused at the first instance and that of the first accused at the second instance. Admittedly, there is no evidence that P.W.18 asked P.W.1 to arrange for a lorry or to bring the lorry (already arranged by P.W.1) to the office of the Vigilance and Anti-corruption department. When P.W.1 knew pretty well that the accused were going to be caught with red hand if they chose to receive the illegal gratification demanded by them, there was no necessity for him to take the lorry along with him. This vital aspect was not adverted to by the court below in its judgment.
31. A careful consideration of the evidence of P.Ws.1, 2 and 18, in comparison with the evidence of P.W.7-the driver of the lorry allegedly engaged by P.W.1, will show the introduction of P.W.7 to make the prosecution case probable and stronger. But, as rightly pointed out by the learned counsel for the appellants, the said attempt has resulted in utter failure as there are vital contradictions which shall have the effect of demolishing the entire prosecution theory regarding the occurrence relating to the trap. According to the testimony of P.W.1, P.W.1 and P.W.2 went in the scooter of P.W.1 from the office of the Vigilance and Anti-Corruption Department to the residence of A3-Krishnan Kutti in Thendral Nagar. According to his further evidence, the Inspector of Police-P.W.18 and the other witness Kannan came in a motorcycle. According to him:- P.W.1 and P.W.2 proceeded in the scooter bearing Regn.No.TAR-5035; the lorry bearing Regn.No.TNP 7776 followed the said scooter and the Inspector of Police (P.W.18) along with the other witness Kannan followed the lorry in a motor cycle. The version of P.W.2-Raveendran is slightly different from that of P.W.1. According to P.W.2 he along with P.W.1 proceeded in the scooter of P.W.1 and they were followed by P.W.18 (Inspector of Police) and the other witness Kannan in a motorcycle, whereas the lorry came third in the convoy. The testimony of P.W.18 is similar to that of P.W.2. In this regard there is a contradiction between the evidence of P.W.1 on one hand and P.W.2 and P.W.18 on the other hand. If the evidence of the said witnesses alone are taken into consideration, the said contradiction may seem to be insignificant and trivial. But the prosecution has chosen to examine P.W.7 as the driver of the above mentioned lorry. A consideration of the testimony of P.W.7 in comparison with the evidence of the other three witnesses discussed above, will make the case of the prosecution more improbable and suspicious. P.W.7 would say that P.W.1 proceeded in a scooter and another person who was found with P.W.1 followed him in a motorcycle, whereas he followed the motorcycle in his lorry as per their directions. It is his further evidence that P.W.1 and the other person who proceeded in the motorcycle, after getting down from their respective vehicles, entered the house of A3 at about 10.00 p.m on 13.08.1993 and came out from the said house at about 11.00 p.m. The same was his version during his evidence in chief examination. Even during cross-examination, he chose to confirm that those two persons who went inside the house of A3 were P.W.1 and the Inspector of Police, whose name he ascertained subsequently to be Mr.K.K.Krishnan.
32. It is the evidence of P.Ws.1, 2 and 18 that all the four persons, namely P.W.1, 2 and accused 2 and 3 proceeded in the auto-rickshaw from the residence of the third accused to the residence of Mahalingam-A1. It is the evidence of none of the above said witnesses that P.W.1 or any other person rode his scooter from the residence of A3 to the residence of A1. The evidence of P.W.4-auto driver is also to the same effect. On the other hand, it is the evidence of P.W.7 that P.W.1 and P.W.18 proceeded towards the residence of A1 in their respective vehicles, namely scooter and motorcycle and that the auto-rickshaw also came along with those vehicles. Such a vital contradiction has escaped the notice of the court below. As rightly contended by the learned counsel for the appellants, the lower court ought to have arrived at a conclusion that the case of the prosecution that P.W.1 arranged for a lorry driven by P.W.7 and the lorry was taken at the first instance to the place of residence of A3 and then to a place near the residence of A1, was quite improbable and that the introduction of P.W.7, as a witness was the result of an attempt to strengthen the case of the prosecution. Such an embellishment will definitely affect the case of the prosecution regarding the above said aspect. Therefore, the presence of P.W.7 near the place of occurrence has got to be ruled out.
33. Yet another vital discrepancy is also found in the prosecution theory. According to the prosecution, after handing over the bribe money to Mahalingam (A1), on the pretext of coming out for answering nature's call, he came out of the house of A1-Mahalingam and gave signal to P.W.18 and his party, pursuant to which they rushed into the house of A1, conducted phenolphthalein test for the hands of A1 and A2 and recovered M.O.6 series money. According to the evidence of P.Ws.1 and 2, a total sum of Rs.13,000/- coated with phenolphthalein powder (all 100 rupee notes) was kept in two bundles - the first one containing Rs.10,000/- and the other one containing Rs.3,000/-. It is the further evidence of P.Ws.1 and 2 that when A1 demanded payment of the amount, P.W.1 handed over the above said bundles of currency notes to A1-Mahalingam. But, it is curious to note that the evidence of the prosecution witnesses is to the effect that, without counting, A1 handed over the small bundle containing Rs.3,000/- to A2 and retained the larger bundle containing Rs.10,000/- for himself. Of course, it is true that the Sodium Carbonate solution used for conducting phenolphthalein test for the hands of A1 and A2 were sent to the forensic laboratory and on examination it was certified by P.W.16 to contain phenolphthalein. The accused persons have admitted the fact that A2 and A3 along with P.W.1 went to the house of A1 during the night hours of 13.08.1993 and thereafter the police came and arrested the accused persons on the charge of demanding and receiving illegal gratification. But there is a remarkable deviation from the version of the prosecution regarding the time at which the occurrence took place. According to the prosecution case, P.Ws.1 and 2 along with A2 and A3 went to the residence of A1 and about 12.00 midnight on 13.08.1993 and the subsequent incidents took place during the early hours of 14.08.1993. But, according to the accused persons, P.W.1 along with A2 and A3 came to the house of A1 at about 9.30 p.m on 13.08.1993 and they were arrested and taken to the police station at 10.30 p.m. It is the further case of the accused persons that at about 9.30 p.m on the identification of A1's house by A2 and A3, P.W.1 knocked at the doors of A1 and then entered the house along with A2 after the doors were opened; that A1 asked them not to enter and leave the place; that defying such a direction, P.W.1 entered the house and placed the currency notes on the teapoy and came out; that A1 pushed the currency notes from the teapoy and the currency notes fell scattered on the floor; that at that point of time DSP-Chidambaranathan came in and asked A1 and A2 to collect and give those currency notes and that only pursuant to the said request made by DSP-Chidambaranathan, A1 and A2 picked up the currency notes scattered on the floor and handed them over to him which happened to be the cause for the positive result of the phenolphthalein test. The said contention of the accused persons seems to be quite probable in the light of the contradictions found in the evidence of the prosecution witnesses and the admission made by P.W.1 regarding the presence of Chidambaranathan-DSP during the occurrence in the residence of A1. According to the accused, at the first instance, P.W.1 met A3 at his residence, then with the help of A3 he could find the residence of A2 and thereafter at about 8.00 p.m both A2 and A3 were taken by Chidambaranathan-DSP to identify the residence of A1. P.W.2, who is said to have accompanied P.W.1 throughout the alleged trap operation admits that he did not know the direction in which the entrance of A3's house is found. He also admits that the door number of A1's house was not known to him and that he could not give the particulars of the structural features of the said house. P.W.1 also admits that he did not know the location of the house of A1, nor did he know the location of A2 before the date of occurrence, namely 13.08.1993. P.W.1 candidly admitted the presence of Chidambaranathan in the scene of occurrence at the time of arresting the accused persons. But none of the other witnesses has spoken about the presence of Chidambaranathan-DSP in the scene of occurrence at the time of arresting the accused. In fact, P.W.2 who was the alleged eye witness and P.W.18, the officer who allegedly conducted the trap have given evidence, which is contradictory to the admission made by P.W.1 regarding the presence of Chidambaranathan-DSP in the place of occurrence. Both of them denied the presence of Chidambaranathan-DSP in the place of occurrence. The said contradiction between the evidence of P.W.1 on one hand and that of P.W.2 and P.W.18 on the other hand will probablise the contention of the accused persons and improbablise the prosecution case.
34. Yet another discrepancy found in the evidence of the prosecution is worth mentioning. The serial numbers of the currency notes allegedly recovered from A1 and A2 have not been separately given in the seizure mahazar, namely Ex.P4. Witnesses examined on the side of the prosecution have also failed to identify the currency notes which were recovered from A1 and the currency notes which were recovered from A2. In this regard, there is a vital defect and infirmity in the case of the prosecution regarding the alleged seizure of the bribe money from A1 and A2.
35. A1, as the Executive officer of the Veerakeralam Town Panchayat, after conducting a search in the premises bearing door No.19, Thendral Nagar, Veerakeralam which was used as a factory for manufacturing mineral water according to A1 and used as a godown for cleaning and stocking the bottles to be used for the mineral water factory to be set up in Kottathurai in Solaiyur panchayat in Kerala state according to P.W.1, seized 456 bottles filled with treated siruvani water and 577 empty bottles and also locked and sealed the said premises. Soon after the said seizure of articles and sealing of the premises, A1 sent a report under Ex.P17 to the District Collector on 06.08.1993 itself. As it was claimed that the search was made by A1 on the instructions of the District Collector and pursuant to the complaints received from the public by the District Collector, the matter had gone beyond the control of A1 and he did not have the power to release the seized articles or to remove the seals put to the premises without obtaining orders in this regard from the collector. The said position has been clearly admitted by the prosecution witnesses. When that is so, it is highly improbable that A1-Mahalingam would have demanded a sum of Rs.15,000/- at the first instance, which was later on reduced to Rs.13,000/-, as illegal gratification for releasing the seized articles and removing the seals put to the premises. Apart from the said improbability, there is also a vital contradiction which is in-built in the evidence of P.W.1 itself as to when such a demand was made by A1 for the first time. During his examination in chief, P.W.1 stated that on 06.08.1993 itself he met A1 in his office at 3.00 p.m and showed the documents relating to the steps taken by him to set up the factory in Kerala and to use the premises at Thendral Nagar as a godown and that at that point of time A1 demanded a sum of Rs.15,000/- as illegal gratification for releasing the goods and removing the seal. But, during cross-examination P.W.1 has admitted that throughout the day on 06.08.1993 A1 did not demand any amount as illegal gratification. The said admission will show that there was no demand for payment of illegal gratification at any point of time on 06.08.1993. The same is a vital contradiction which will greatly impair the credibility of the prosecution version that A1 demanded payment of illegal gratification for releasing the articles seized by him and removing the seal put to the premises allegedly used by P.W.1 as a place for manufacturing mineral water. The said contradiction will greatly affect the probability of the prosecution version.
36. The learned counsel for the appellants have pointed out yet another vital contradiction which shall improbablise the prosecution story. According to the prosecution story, an arrangement was made for giving signal to the police officials, in case A1 would receive the money as illegal gratification from P.W.1. According to the said arrangement, P.W.1 should come out and give a signal to the police by lighting his torch light twice. The evidence of P.W.1, 2 and 18 in this regard is to the effect that P.W.1 came out of the house of A1 under the pretext of answering nature's call and gave the signal as per the pre-arrangement by lighting the torch light twice. But there is confusion and contradiction as to where from he took out the torch light for giving the signal. According to P.W.1, he took out the torch light from his scooter and gave the signal by lighting it twice. But, according to P.W.2, while proceeding from A3's house, P.W.1 took the torch light from his scooter and kept it in his pocket and the same was used by P.W.1 to give signal to the police when he came out from the house of A1. It is admitted by the prosecution witnesses that P.Ws.1 and 2 along with A2 and A3 travelled in one and the same auto-rickshaw to the residence of A1. Nowhere they have stated that either P.W.1 or anybody else brought the scooter from the residence of A3 to the residence of A1. In fact, the auto driver, P.W.4 also has deposed to the effect that all the four travelled in his auto-rickshaw. On the other hand, it is the evidence of P.W.7, the lorry driver that P.W.1 proceeded towards A1's residence in his scooter. P.W.1 also in his evidence would state that after coming out of the house of A1 in the guise of answering nature's call, he took the torch light from his scooter and gave the signal to the police by lighting it twice. Later on, when P.W.2 was examined, realising the fact that the prosecution theory was to the effect that all the four, namely P.W.1, P.W.2, A2 and A3 travelled in the auto-ricksha to reach the house of A1 and there was nothing to show how the scooter of P.W.1 came to the residence of A1, P.W.2 was made to give a different story of P.W.1 taking his torch light from his scooter when they started from the residence of A3 and putting it in his pocket to be used to give signal after coming out of the house of A1. The said improvement has been made as an after thought. There is no acceptable explanation for the discrepancy found in the evidence of P.W.1 and 2 in this regard. The said contradiction is a vital one capable of affecting the probability of the case regarding the alleged payment of illegal gratification and the signal given by P.W.1 to the police. The same will also probablise the defence theory that the case was foisted with the help of a relative of P.W.1 in the police department and one Chidambaranathan, DSP was the director of the stage-managed show of the payment of illegal gratification and trap. The same will at least create a reasonable suspicion regarding the story of the prosecution.
37. After effecting seizure of bottles filled with treated siruvani water and empty bottles along with trays and boxes and sealing the premises bearing door No.19, Thendral Nagar, Veerakeralam Town Panchayat, the said fact was informed by a report to the District Collector on 06.08.1993 itself. Prosecution witnesses admit that A1 did not have the power to return the seized goods or to remove the seals without an order from the Collector. No order passed by the District Collector for removing the seal has been produced. However, at a belated stage, that too at the time of re-examining P.W.19, Ex.P26 purporting to be the order passed by the Collector for the removal of the seals and for handing over the premises was produced. The same was produced on 23.05.1997. During the course of his testimony in chief examination and cross examination, P.W.19 had initially admitted that the seal was removed and the premises was handed over to P.W.1 without there being any order passed by the Collector. However, subsequently, EX.P26 was produced on 25.03.1997 purporting to be the order passed by the District Collector. The same was not signed by the District Collector. Nor does it contain the seal of the Collector. It has been signed by some one else "for collector". The signatory to Ex.P26 has not been examined. On the other hand, one Ponnusamy, a retired personal assistant of the District Collector, who allegedly dealt with the files relating to Panchayats has been examined as P.W.17. Even, P.W.17 was not able to say who had signed Ex.P26 on behalf of the Collector. Furthermore, the report sent by the first accused (Mahalingam) has been produced and marked as Ex.P17. It is the clear admission of P.W.17-Ponnusamy that no order was passed by the District Collector based on the said report. He has also admitted that the District Collector did not pass any order that Mahalingam-A1 conducted search and sealed the premises bearing door No.19, Thendral Nagar unauthorisedly.
38. Admittedly, there was an agitation by the public and political parties demanding that nobody should be allowed to use siruvani water to manufacture mineral water. In the light of the fact that P.W.17 has not stated the name of the person who signed Ex.P26 order on behalf of the Collector and in the light of the admission made by P.W.19 (Investigating Officer) that he handed over the articles found in the premises bearing door No.19, Thendral Nagar, Veerakeralam Town Panchayat, Coimbatore, P.W.1 without obtaining any order from the District Collector, a reasonable suspicion that Ex.P26 could have been created subsequently has arisen. In addition to that P.W.19's evidence in this regard has in-built contradictions. It is the evidence of P.W.19 that he removed the seals put by A1 to the premises bearing door No.19, Thendral Nagar, Veerakeralam Town Panchayat after getting the orders of the district collector, but there was no order to hand over the articles found therein and that he handed over possession of the premises and the articles found therein to P.W.1 without an order of the collector. Such an order permitting P.W.19 to remove the seals has not been produced. On the other hand, Ex.P26 has been produced as the order pursuant to which the seal was removed by P.W.19. Even if it is assumed that the said order could be true, the Executive Officer of Veerakeralam Town Panchayat alone has been directed to remove the seal in the presence of the owner of the company, the Village Administrative Officer and the Investigating Officer (P.W.19). There is nothing on record to show that the seal was removed by A1-Mahalingam in the presence of the above said persons. On the other hand, it is the clear evidence of P.W.19 (investigating officer) that he himself removed the seals and handed over the premises and the articles found therein to P.W.1. It is also the admission of P.W.19 that he did not want to take the accused along with him when he went to the godown to open it. But, contra to the said statement made by him in the earlier part of his testimony, later on he changed his version and stated that the Executive Officer of the Town Panchayat was present when the seals were removed and the premises were opened by him (P.W.19). Who was the Executive Oficer of the Town Panchayat at the time of removal of the seals is not made clear. It is also the evidence of P.W.19 that he examined District Panchayat Officer regarding Ex.P26 order. But, there is nothing on record to prove the same. Neither the District Collector nor the Additional District Collector (Panchayat) has been examined on the side of the prosecution.
39. A cumulative effect of the discrepancies, infirmities, contradictions and improbabilities pointed out supra will show that the prosecution has not proved its case beyond reasonable doubt; that there are many pitfalls and improbabilities which shall create a reasonable suspicion regarding the prosecution version; that the court below failed to appreciate the evidence of the prosecution in this regard in proper perspective; that the court below ought to have arrived at a conclusion that the prosecution case was not proved beyond reasonable doubt and acquitted all the accused persons giving benefit of doubt and that therefore, the judgment of the court below convicting the accused persons for the offences with which they stood charged is infirm and defective liable to be corrected, reversed and set aside by this court in exercise of its appellate powers.
40. For all the reasons stated above, this court comes to the conclusion that the prosecution has failed to prove any one of the charges against accused 1 to 3 beyond reasonable doubt; that the conviction recorded by the trial court and the sentence imposed on the accused persons are liable to be set aside and that all the accused persons are entitled to be acquitted of all the offences with which they stood charged.
41. In the result, the appeals are allowed and the judgment dated 22.09.2007 made in C.C.No.5/1994 by the trial court convicting the appellants for the offences with which they stood charged and the order of sentence imposed are set aside. The appellants/accused are acquitted of all the offences with which they stood charged and set at liberty. Fine amount, if any, already paid is ordered to be refunded.
asr/ To
1.The I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore.
2.Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore
3.The Public Prosecutor High Court, Madras