Madras High Court
Moorthy vs State Represented By on 23 November, 2010
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1051 of 2006 Moorthy ..Appellant Vs State represented by Addl.Superintendent of Police ACB/C.B.I/Chennai .. Respondent PRAYER: Criminal Appeal filed under section 374(2) of Criminal Procedure Code against the conviction and sentence made in C.C.No.13 of 2004 by the learned Court Principal Special Judge for C.B.I Cases, Chennai by Judgment dated 21.11.2006. For Appellant : Mr.A.Ramesh Senior Counsel For Respondent : Mr.N.Chandrasekaran Spl. Public Prosecutor for C.B.I Cases ----- JUDGMENT
The sole accused in C.C.No.3 of 2004 on the file of the Principal Special Judge for C.B.I Cases, Chennai, who was prosecuted for offences punishable under Sections 7 of the Prevention of Corruption Act, 1988 and Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988, found guilty on both the charges, convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- and to undergo rigorous imprisonment for two months in case of default in payment of fine, in respect of each one of the above said offences, has come forward with the present appeal challenging the judgment of the trial Court dated 21.11.2006 in respect of conviction and sentence.
2. The case of the prosecution in brief can be stated thus:-
i) The appellant / accused was working as Upper Division Clerk in the office of the Trade Marks Registry at Rajaji Bhavan, Besant Nagar, Chennai. PW2-Manoj Singh hails from Bharatpur, Rajasthan State. His uncle Kehari Singh was earlier working in the Trade Marks Registry. With the help of Kehari Singh, PW2 got employed as a clerk under M/s.Haroon and Moses, an advocates firm dealing with Trade Mark cases, of which PW7 Mr.S.A.Syed Haroon and another Mr. Mosses Jayakaran were the partners. In connection with the submission of applications for registration of Trade Marks, PW2 had met the appellant/accused in the office of the Trade Marks Registry and for the applications received from PW2, the appellant/accused wrote acknowledgments on the duplicate copies. On a previous occasion, the accused did not assign the numbers to the applications immediately and delayed the work of assigning application numbers for about a week. PW2 informed the Deputy Registrar of the Trade Marks Registry and at the intervention of the Deputy Registrar, application numbers were given.
ii) Then, again on 24.07.2003, PW2 submitted five applications on behalf of M/s.Maxicol Adhesives Pvt. Ltd., to the Trade Marks Registry. He also remitted a sum of Rs.1500/- to the appellant/accused towards application fee and got an endorsement on the duplicate copies of the applications, acknowledging the receipt of the applications and receipt of the above said amount as fees. After four days, on 28.07.2003 when he again met the appellant/accused at 04.00 p.m., he informed PW2 that the applications were ready for delivery, but he demanded a bribe of Rs.1000/- for furnishing the application numbers. Since PW2 did not have the necessary money at that point of time, he was asked to come to the said office at about Noon on the next day with the amount demanded as bribe. The appellant/accused also instructed PW2 to come alone. As PW2 was not willing to pay, without even informing the advocates for whom he was acting as clerk and without their knowledge, PW2 went to the office of C.B.I at Shastri Bhavan, met the Superintendent of Police and gave a written complaint under Ex.P2. On the instructions of the Superintendent of Police, CBI, PW4-Sridharan, the then Inspector of Police, C.B.I/ACB, Chennai took necessary action. He explained the whole process of trap, ascertained PW2's willingness to take part in the trap and asked him to come back to his office at 10.00 a.m. on the next day, namely, 29.07.2003.
iii) Accordingly, on 29.07.2003 at 10.00 a.m, PW2 went to the office of C.B.I at Shastri Bhavan with the money intended to be given as bribe. On the invitation of PW4, the Inspector of Police, PW3-Venkatesh and one Radha Madhavan had come to the C.B.I office. The said witnesses on being introduced to PW2, did ascertain that PW2 was the person who gave complaint. PW4 got six currency notes, one with the denomination of Rs.500/- and other five with the denomination of Rs.100/-, marked as M.O.1 series from PW2 and noted the serial numbers of the said currency notes. Thereafter, PW4 demonstrated how Phenolphthalein test would be conducted in trap cases and got M.O.1 series currency notes coated with phenolphthalein powder. Then, M.O.1 series currency notes coated with phenolphthalein powder were placed in the left side shirt pocket of PW2 with the instruction not to touch the currency notes until demanded by the appellant/accused. A Samsung brand Digital Recorder was also placed in the right side pant pocket of PW2 by the Inspector of Police (PW4) after switching on the same. An Entrustment Mahazar Ex.P3 was prepared for the said purpose. An arrangement was also made to the effect that the PW2 should come out and wipe his face with his hand kerchief, if the accused demanded and accepted the bribe amount.
iv) Thereafter, the trap team members along with PW2 and the witnesses went to the office of the Trade Marks Registry at about 12.00 Noon, where everyone except PW2 remained outside and PW2 alone went inside the office at about 12.15 p.m. But at that point of time, the appellant/accused Moorthy was not found there and hence he had to wait for about 15 minutes for his arrival. When the appellant/accused came there after 15 minutes, PW2 enquired about the applications given by him and in response to the said query, the appellant/accused asked PW2 whether he had brought the bribe amount, for which the answer that came from PW2 was in the affirmative. The appellant/accused drew the right hand side drawer of his table half-way and asked PW2 to put the money into it and PW2 did accordingly. Thereafter, the appellant/accused gave the copies of the applications and asked PW8, a Class IV employee working in the said office as record keeper, to take PW2 to one Ravishankar, Upper Division Clerk, who was having the despatch register with him. On the instructions of the appellant/accused, he took PW2 to the said Ravishankar, informed the said Ravishankar that PW2 had to sign the despatch register and then went to attend his other works. Accordingly, after signing the Despatch Register, PW2 came out of the office and gave the signal as per the prearrangement.
v) PW6 N.S.Kesavan was the officiating office superintendent in the office of the Trade Marks Registry, Chennai on the date of occurrence. The seat of the appellant/accused was situated next to the seat of PW6. He knew the fact that due to over burden of work to the despatcher, the appellant/accused was asked by the Joint Director to attend to the despatch work also and that is the reason why, in Ex.P7-Despatch Registrar pertaining to 28.07.2003, all other entries, except the first entry, were found made by the appellant/accused. Ex.P13 is the attendance register and Ex.P14 is the certified extract of the service register of appellant/accused. Ex.P15 is the certified extract of the visitors register pertaining to 24.07.2003 to 29.07.2003 kept in the office of the Trade Marks Registry, Chennai. As it was the practice not to enter the names of the advocates and agents, the name of PW2 Manoj Singh is not found entered in Ex.P15 visitors register.
vi) Pursuant to the signal given by PW2, the trap team members and the witnesses waiting outside entered the office of the Trade Marks Registry. When the appellant/accused was questioned by PW4, he was shocked and he could not speak. As directed by PW4, PW2 narrated the events. Then Sodium Carbonate solution was prepared in a glass tumbler and the appellant/accused was asked to dip his right hand fingers in the glass tumbler and when he did so, the solution turned pink. The said solution was sealed in a separate bottle, marked as M.O.2. Similarly, when phenolphthalein test was conducted for the left hand fingers of the accused, the sodium carbonate solution turned pink and the said sodium carbonate solution used for testing the left hand fingers of the appellant /accused is marked as M.O.3. Thereafter, the appellant/accused was arrested by PW4-Inspector of Police and on the information furnished by the accused, M.O.1 series currency notes, wrapped in a piece of cloth, were found hidden in the cabin on the other side of the office behind the seat of the appellant/accused. After cross checking the serial numbers of the currency notes, phenolphthalein test was conducted for the piece of cloth used as wrapper of the currency notes which also proved positive. The said piece of cloth, which has been marked as M.O.5, was also seized in the presence of the witnesses. The witnesses signed on the said piece of cloth also. Thereafter, PW4 got back the digital recorder from PW2, switched off the same, sealed in the presence of the witnesses and kept it with him. PW4 also recovered Ex.P7 certified copy of the despatch register. The applications received by PW2 from the despatch section were also seized by PW4. They are marked together with the receipts as Exs.P4 series. All the above said seizures were made under Ex.P5 mahazar. After the said recoveries were made at the place of occurrence, the appellant/accused was released on bail. On examination of the solutions, PW5- R.Bhanumathi, the Scientific Officer in the Chemistry Division of the Forensic Science Department, gave a report under Ex.P12 certifying that all the three items contained sodium carbonate and phenolphthalein.
vii) Thereafter, the investigation of the case was transferred to and handled by PW9-V.A.Mohan, who was working as Additional Superintendent of Police, C.B.I, ACB, Chennai. He examined the witnesses, recorded their statements and collected the documents. On 01.09.2003, he filed an application to the Court, got back the digital recorder, played the same in the presence of witnesses and found that the conversation was not audible. The wrapper containing the seal and signatures of the witnesses used for keeping the digital recorder is Ex.P17 and the digital recorder is M.O.6. After finding that the conversation recorded in the digital recorder (M.O.6) was not audible, PW8 again packed it, sealed it and obtained the signatures of the witnesses in a separate slip and kept in the CD file. At the conclusion of investigation, he formed an opinion that materials collected during investigation disclosed commission of offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 by the appellant/accused and applied for necessary sanction for prosecuting the appellant/accused. PW1-Dr.S.N.Maity, the Deputy Director, CMRI, CSIR, Dhanbad, who was working as Controller General Patents, Designs and Trade Marks, Mumbai, happened to be the competent authority to sanction prosecution of the appellant/accused. After perusing the records and having a subjective satisfaction, PW1 accorded sanction under Ex.P1 dated 31.12.2003 for prosecuting the appellant/accused for the offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. On receipt of the said sanction order, PW9, the Investigating Officer, submitted a final report on 28.01.2004 alleging commission of offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988.
3. Before the trial Court, the appellant/accused pleaded innocence and charges were framed for offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act,1988. After having the charges read over and explained, the appellant/accused denied the charges and pleaded innocence. In order to substantiate the prosecution version, nine witnesses were examined as Pws 1 to 9 and 17 documents were marked as Exs.P1 to P17 on the side of the prosecution. Six material objects were also produced as MOs 1 to 6 on the side of the prosecution.
4. After the completion of the recording of evidence adduced on the side of the prosecution, the incriminating materials available in such evidence were pointed out and the appellant/accused was questioned regarding such incriminating materials under Section 313(1)(b) Cr.P.C. He denied the evidence against him to be false and once again reiterated his stand that he was innocent. He also submitted a written statement containing the following allegations:-
"One Kehari Singh was the paternal uncle of the de facto complainant, namely PW2-Manoj Singh. The said Kehari Singh was a higher official to the appellant/accused during the year 2002 and he was placed under Suspension after being trapped by C.B.I police in a corruption case. While he was under suspension, he used to canvass with the persons approaching the Trade Marks Registry that he would help them to get things done for them. He also used to approach the employees of the Trade Marks Registry with such recommendations. But the employees of the Trade Marks Registry, including the appellant/accused, used to tell him that they could act only according to rules, whereupon the said Kehari Singh used to abuse the appellant/accused and his co-workers. The relationship of PW2 with the said Kehari Singh was not known to the appellant/accused. A few days prior to 27.07.2003, PW2 came and introduced himself as the clerk of M/s.Haroon and Moses, a partnership firm dealing with Trade Mark. Subsequently on one or two occasions, he submitted applications for registration of Trade Marks. On 29.07.2003, after coming to the office in the morning, with the permission of the higher authorities, the appellant/accused went to CGHS Office to get a family health Identity Card to his family. After obtaining the said identity card, he came back to the office. When he returned to the office, PW2 approached him and asked about Ex.P4 applications whereupon, the appellant/accused informed him that Ex.P4 applications were ready and he could collect them in the despatch section. Thereafter, PW2-Manoj Singh shook hands with the appellant/accused, thanked him and left that place. After PW2 left that place, the appellant/accused opened his table drawer, put the family health Identity card in it and proceeded to attend to his office work. After some time, PW2 - Manoj Singh came there with others who introduced themselves to be C.B.I officials. When they questioned the appellant/accused, he answered that he did nothing wrong, pursuant to which, there was an altercation between him and the C.B.I officials. Meanwhile, PW2- Manoj Singh pointed out a piece of cloth lying at a distance from the table of the appellant/accused, as if by chance he happened to notice it. The appellant/accused had nothing to do with the said cloth. Appellant/accused did not receive bribe from anybody including PW2. He never demanded bribe from PW2. On 28.07.2003, PW2 did not meet the appellant/accused. The appellant/accused did not cause any delay in processing any application submitted by PW2."
No witness was examined and no document was marked on the side of the appellant/accused.
5. After hearing the arguments advanced on either side, the learned trial judge considered the evidence, both oral and documentary, and, upon such consideration, held that both the charges framed against the accused stood proved and that he was guilty of offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. Based on such finding the trial Judge convicted him for the said offences with the punishments indicated supra. Challenging the conviction and sentence and praying for the reversal of the judgment of the trial Court and ultimate acquittal of the appellant/accused, the appeal has been preferred on various grounds set out in the appeal petition.
6. The arguments advanced by Mr.A.Ramesh, learned senior counsel representing the counsel on record for the appellant and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I Cases were heard. The materials available on record were also perused.
7. The sole accused, who was prosecuted, found guilty and convicted by the trial Court for offences punishable under Sections 7 of the Prevention of Corruption Act, 1988 and 13(2) r/w. 13(1)(1d) of Prevention of Corruption Act, 1988 is the appellant herein. He is alleged to have demanded and received a sum of Rs.1000/- from PW2-Manoj Singh as illegal gratification for furnishing application numbers for the applications submitted by him for registration of Trade Marks.
8. The learned senior counsel for the appellant/accused in his vehement argument has submitted that the entire story of the prosecution is the result of a concoction and a stage managed show by one Kehari Singh with the aid of his close relative PW2 and the C.B.I officials; that the said Kehari Singh was employed as a higher official for the appellant in the office of the registry of Trade Marks, Besant Nagar, Chennai and he was placed under suspension after being trapped by C.B.I officials in the year 2002; that while he was under suspension, the said Kehari Singh used to canvass with the applicants coming to the Trade Marks Registry that he could get things done for them and he also used to make recommendations for them; that on such occasions, the appellant/accused as well as the other persons employed in the Trade Marks Registry used to inform Kehari Singh that they could act only in accordance with rules; that since they were not amenable to the influence of Kehari Singh, he caused intimidation to the appellant/accused and the other co-workers and that in such circumstances alone, the said Kehari Singh brought his close relative Manoj Singh (PW2) from Rajasthan and set up a false case with his help. It is the further contention of the learned senior counsel for the appellant/accused that it was quite improbable for PW2, employed as a clerk under M/s.Haroon and Moses, an advocates firm, to have chosen to approach the C.B.I for lodging a complaint even without informing and without getting the consent of his employers and that the alleged trap is an utter failure, as none of the other witnesses examined on the side of the prosecution, testified to the effect that either he/she saw the appellant/ accused receiving the bribe amount from PW2 or placing the said bribe amount after wrapping the same in a piece of cloth in a place behind his seat. The learned senior counsel also pointed out the fact that none of the inmates of the office did depose to the effect that the place wherein the currency notes wrapped in a piece of cloth had been kept, was identified by the appellant/accused and on his information alone the same were recovered and that the Seizer Mahazar was not attested by any of the employees employed in the said office in which the occurrence is said to have taken place. The learned senior counsel also submitted that the explanation offered by the appellant/accused as to how his fingers tested positive for phenolphthalein test and the circumstances and the manner in which the currency notes wrapped in a piece of cloth were identified and recovered by the C.B.I officers, shall be more probable than the prosecution theory. The learned senior counsel for the appellant/accused pointed out the explanation offered by the appellant/accused that PW2, who came to the office in in the absence of the appellant/accused was waiting there till the arrival of the appellant/accused and on his arrival, he shook hands with the appellant/accused and thereby passed on the phenolphthalein powder coated in the palm of his hand and that even the amount found wrapped in a piece of cloth could have been placed by him, at a place behind the seat of the appellant/accused, as it was PW2, who pointed out the presence of that bundle wrapped in a piece of cloth lying on the floor, as if by accident he found it out.
9.The learned senior counsel argued further that as per the evidence of PW4, the distance between the table of the accused and the place wherein the tainted currency notes wrapped in a piece of cloth was about 10 feet; that even though it was sought to be projected by the prosecution witnesses that it was a cabin in which the tainted currency notes were found wrapped in a piece of cloth, it was admitted by PW4 that in the rough sketch, the location of the cabin was not specifically mentioned; that when it is the specific case of the prosecution that the accused drew the right side drawer of his table half-way and asked PW2 to put the bribe money into it and that in accordance with his instruction, PW2 placed M.O.1 currency notes coated with phenolphthalein powder in the table drawer, the Trap Laying Officer ought to have conducted phenolphthalein test for the said drawer of the table and the other contents of the table to find out whether phenolphthalein powder was present in them and that the failure to conduct such a test by the Trap Laying Officer is fatal to the prosecution case or at least shall make the story of the prosecution improbable and the defence story of the appellant / accused probable. The learned senior counsel also pointed out the fact that PW3 has admitted that though the table drawer of the appellant/accused was opened by PW4, no amount was found in it and the things found in the table drawer were not noted and that the table drawer was not subjected to phenolphthalein test.
10. On the other hand, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I Cases would contend that the evidence of the defacto complainant (PW2) stands corroborated not only by PW4-Inspector of Police, but also by one of the accompanying witnesses (PW3 Venkatesh) and that the appellant/accused did not come forward with a convincing explanation for the presence of phenolphthalein powder in both of his hands. It is the submission made by the learned Special Public Prosecutor that unless the appellant/accused had handled the currency notes coated with phenolphthalein powder marked as M.O.1 series, his fingers in both hands would not have made the sodium carbonate solution turn pink. It is his further contention that there is also clear evidence adduced through PWs 2, 3 and 4 that it was the appellant/accused who identified the place wherein the currency notes marked as M.O.1 wrapped in M.O.5 cloth was found and it was through him, the C.B.I. Officials came to know that he had kept that amount wrapped in the said cloth on the cupboard available on the back side of his seat in his office.
11. This Court paid its anxious considerations to the rival submissions made on both sides.
12.PW1 is the officer who accorded sanction for the prosecution of the appellant/accused for the said offences and Ex.P1 is the sanction order passed by him. Nothing has been convased by the learned senior counsel for the appellant/accused against the sanction order. However, the judgment of the trial Court is sought to attacked on the basis of the contradictions found in the evidence adduced on the side of the prosecution, improbabilities of the prosecution story and omissions on the part of the Trap Laying Officer and the Investigating Officer. Out of the 9 witnesses examined on the side of the prosecution, PW9 is the Investigating Officer, who took up the investigation after the trap operation was completed and submitted a final report on completion of the investigation. PW2 is the de facto complainant, who is said to have lodged the compliant marked as Ex.P2 and also paid the bribe money, namely M.O.1 series coated with phenolphthalein powder to the appellant/accused. PW3 is one of the accompanying witnesses taken by the Trap Laying Officer along with his team to the place of occurrence. He is the one of the attestors of the Entrustment Mahazar, namely Ex.P3 prepared in the office of C.B.I, before the trap and the Seizure Mahazar Ex.P5 prepared in the scene of occurrence. Though one more person by name Radha Mahavan is said to have attested the above said mahazars, the said person has not been examined as a witness on the side of the prosecution. PW4-Sridharan is the Inspector of Police in C.B.I, who conducted the trap operation. PW7-S.A.Syed Haroon is the one of the partners of the advocates firm in which PW2 was employed as a clerk. His evidence in no way is helpful to the prosecution, except the fact that he has corroborated the evidence of PW2 that PW2 was employed in the said firm as a clerk for a short period and that he was accommodated as a clerk in the said firm on the recommendation of Kehari Singh. PW5-R.Bhanumathi is the Scientific Officer in the Forensic Science Department, who speaks about the chemical analysis of sodium carbonate solutions used for conducting phenolphthalein test and detection of phenolphthalein in them. Except to prove the fact that the sodium carbonate solutions used for conducting phenolphthalein test to the fingers of the accused and for M.O.5 cloth used as a wrapper for keeping the currency notes, did test positive for phenolphthalein, which fact is not disputed by the appellant/accused, the evidence of PW5 shall not be helpful to the prosecution in any other way.
13.PW6 and PW8 are the other persons employed in the office of the registry of Trade Marks, Besant Nagar, Chennai wherein the occurrence took place on the date of occurrence. PW6 was the officiating office Superintendent in the office of the Trade Marks Registry, Chennai on the date of occurrence, namely 29.07.2003. His seat was next to the seat of the appellant/accused. It is not the case of the prosecution that PW6 was not there at the time of occurrence. A careful study of the testimony of PW6 will show that he does not support the prosecution version in material aspect and major part of his deposition deals with the official procedure that is adopted in his office and the work that was attended to by the appellant/accused. It shall be pertinent to note that PW6 does not speak about either the demand or receipt of bribe money within his view. It is also not his evidence that the M.O.1 series wrapped in M.O.5 cloth was recovered on the identification of the appellant/accused. In fact, nothing was elicited from him as to his presence at the time of the occurrence and also his presence at the time of recovery of M.O.1 and M.O.5. It is highly improbable that M.O.1 wrapped in M.O.5 could have been recovered by PW4 without being noticed by PW6, who was sitting next to the appellant/accused.
14.On the other hand, he has supported the defence version that Kehari Singh, an officer of Trade Marks Registry, had been placed under suspension and even after being placed under suspension in connection with a trap case, he used to come upto the entrance of the office every day and remain there from morning 10.00 a.m till 05.00 p.m in the evening. It is also his evidence that the said Kehari Singh used to call on persons coming to the office of the Trade Marks Registry and have discussions with them. It is also his admission that the said Kehari Singh used to abuse the persons working in the said office as he was not allowed to enter the office except for the purpose of getting subsistence allowance. The said evidence of PW6 is completely in tune with the stand taken by the appellant/accused that Kehari Singh had grudge against the people working in the office of the Trade Marks Registry and he was causing intimidation to them since his recommendations were not heeded to.
15.PW8-Syed Kapoor is another employee of the office of the Trade Marks Registry, employed as Record-Keeper. He has simply stated that, on the date of occurrence, namely 29.07.2003, as per the instructions of the appellant/accused, he took PW2 to one Mr.Ravishankar, Upper Division Clerk in the despatch section and informed Ravishankar that PW2 had to sign in the despatch register and then went to attend his other work. Nothing more is found in his evidence. That is why he has also not been cross-examined by the appellant/accused. Therefore, the evidence of PWs 6 and 8 are to be eschewed as they do not provide any help for the proof of the prosecution version. The remaining evidence that are to be considered are the testimonies of PWs 2 to 4 and PW9.
16. As pointed out supra, PW2 is the de facto complainant. PW3 is the person who attested the entrustment mahazar and Seizure Mahazar. PW4 is the officer who conducted the trap operation and PW9 is the Investigating Officer, who submitted the final report after completing the investigation. It must be seen whether the prosecution is able to prove the charges levelled against the appellant/accused with the help of the evidence of the above said witnesses. PW2 cannot be taken as a disinterested and independent witness. His evidence shows traces of improbabilities and motivation. His native place is Bharatpur, Rajasthan State. Kehari Singh, an officer of office of the Trade Marks Registry at Besant Nagar, Chennai, who was under suspension, is none other than his paternal uncle (father's elder brother). The occurrence is said to have taken place on 29.07.2003. PW2 would say that his father talked to Kehari Singh in June 2003 about getting a job for him and in June 2003 he came to Chennai and within 2 or 3 days after his arrival at Chennai, he got a job in the office of M/s.Haroon and Moses. However, it is his further evidence that he joined as a clerk in the said office only in the first week of July 2003. As per the evidence of PW2, within a month from the date of his joining as a clerk in the office of the advocates firm, he chose to prefer a complaint against the appellant / accused with the C.B.I without even informing his employer or getting their consent for lodging such a complaint. It is the evidence of PW2 that on 28.07.2003, the accused demanded a sum of Rs.1000/- as bribe at about 12.00 Noon and on the very same day at about 05.30 p.m he lodged the complaint with the C.B.I. It must be noticed that the office of the Trade Marks Registry is functioning at Rajaji Bhavan, Besant Nagar, Chennai, whereas the C.B.I office in which PW2 lodged a complaint is at Shastri Bhavan, Nungambakkam, Chennai. It is quite unbelievable that PW2 would have known the office of the C.B.I at Shastri Bhavan within a month from his arrival at Chennai from Rajasthan. There is no evidence to show how he was able to find out the location of the office of the Superintendent of Police, C.B.I. On the other hand, it is clearly admitted by PW2 that his uncle Kehari Singh is owning a Flat at No.G1, Vibhoham Flats, Karthekeyapuram, Madipakkam, Chennai and that he also stayed with him in the said flat on the date of occurrence. It is his evidence that from June 2003 to Feburary 2004, he was residing with Kehari singh in the above said flat. Therefore, it is quite probable that it was Kehari Singh, who had directed PW2 to go to the office of the Superintendent of Police, C.B.I, Shastri Bhavan, Nungambakkam, Chennai and lodge the complaint. At least it shall cause a very reasonable doubt that the complaint could have been lodged only at the instigation of Kehari Singh.
17. The said inference gains strength from the evidence of PW7 and also from the fact that PW2's evidence is totally contradictory to the admission made by PW6. PW6 admitted that Kehari Singh, after his suspension, used to come to the office of the registry of Trade Marks daily and remain at the parking place from 10.00 a.m till 05.00 p.m in the evening and that he was also canvassing with the persons coming to the office of the Trade Marks Registry. This fact admitted by PW6 has been suppressed by PW2. He would say that he did not see Kehari Singh at any point of time in the office of the Trade Marks Registry. It must be noticed that PW7, in his evidence, has made a statement to the effect that Kehari Singh introduced PW2 to them and they had authorized PW2 in assisting them to file Trade Mark applications and to do other miscellaneous works at Trade Marks office at Chennai. At the same time, he has also stated that though PW2 Manoj Singh was authorized to assist them in filing Trade Mark applications, he was not in their pay-roll. He has also stated that Manoj Singh did not inform them about the demand of bribe allegedly made by the appellant/accused and did not get their permission to lodge a complaint.
18. It is quite improbable that PW2 would have spent his own money to make payment as bribe money in the trap operation. The evidence of PW2 is that when he was asked to make payment of Rs.1000/- as bribe money on 28.07.2010 at 12 Noon, he did not have the money and hence he was asked to bring it the next day. Within a day thereafter, as per his evidence, he was able to arrange for the amount. How did he arrange for the amount has not been spoken to. It is also his admission that after the occurrence, PW2-Manoj Singh did not attend the office of PW7. The same will show that Kehari Singh, having been trapped by C.B.I and suspended from service, made attempts to get things done in the office of Trade Marks Registry, Chennai, but was not allowed access to the office except for the purpose of getting subsistence allowance; that he used to threaten the employees employed in the said office as they did not heed to his recommendations and that aggrieved by the same, he had brought his brother's son from Rajasthan for the sole purpose of wrecking vengeance by lodging a complaint and implicating appellant/accused in a bribe case.
19. As rightly pointed out by the learned senior counsel for the appellant/accused, no one accompanied PW2 when he went inside the office of the Trade Marks Registry on the date of occurrence, to give the bribe money coated with phenolphthalein powder as per the prearrangement. On the other hand, an ingenious plea was taken to the effect that PW3 and Radha Madhavan, who were supposed to be the accompanying witnesses for the trap operation were asked to remain outside the said office as appellant/accused had instructed PW2 to come alone. It is pertinent to note that being a public office, a number of persons namely applicants, advocates for the applicants and agents could have been present in the said office in the office hours. But none of them has been examined to speak about their witnessing the accused receiving bribe money or PW4 recovering the tainted money on the identification of the accused.
20. It is the further evidence of PW2 that on a previous occasion when the appellant/accused caused delay in furnishing application numbers, he had to approach the Deputy Registrar of the Office of the Registry of Trade Marks, Chennai and on his intervention, the appellant/accused furnished him the numbers of the applications on the previous occasion. It is his further evidence that when the accused delayed assigning numbers to the applications filed by him on 24.07.2003, he again approached the Deputy Registrar, but the Deputy Registrar asked him to again meet the accused. There is no corroborating evidence regarding this aspect of PW2's evidence. The Deputy Registrar concerned was not examined as a witness on the side of prosecution. He was not even examined and his statement was not recorded by the Investigating Officer. Therefore, the evidence of PW2 in this regard turns out to be one totally unbelievable. It is also quite improbable that the appellant/accused would have demanded bribe from PW2, as he had the guts to make a complaint to the Deputy Registrar, the Controlling Officer of the appellant/accused. Even if it could be true, the same could have been sought to be established by examining the Deputy Registrar concerned. As it was not done, this Court has to accept the contention of the learned senior counsel for the appellant that the same would show the improbability of the case of the prosecution projected through the evidence of PW2.
21. Yet another vital aspect, which possesses a tendency to demolish the prosecution case, is found in the fact that the device allegedly used by the Trap Laying Officer to evidence the discussion that took place between the accused and PW1 at the time of occurrence proved to be a flap. It is the case of the prosecution that at the time of entrustment of the tainted money coated with phenolphthalein powder to the de facto complainant (PW2), a Samsung Digital Recorder was placed in the right side pant pocket of PW2 after switching on the same to ensure that the discussion that might take place between the accused and PW2 would be recorded in it. It is not the case of the prosecution that a delay had been caused between the entrustment and the time of occurrence so as to say that the digital recorder ran out of time and automatically got switched off. On the other hand, it is the evidence of the prosecution witnesses that soon after PW2 gave the prearranged signal, the C.B.I officials with the accompanying witnesses entered the office of the registry of Trade Marks and questioned the accused about the bribe money allegedly received by him; that when he answered in the negative, PW2 was asked to narrate what happened, pursuant to which he narrated the occurrence and that thereafter, PW4 took out the digital recorder from the pant pocket of PW2, switched off the same as it was then in the switched on position and wrapped it in a sealed cover singed by the accompanying witnesses to be sent to the Court. The purpose of sending PW2 with the digital recorder switched on and kept in his pocket, was to get a corroborating evidence to the testimony of PW2, especially because he was not to be accompanied by the accompanying witnesses. Almost a catastrophe of the prosecution case has been caused in this regard. The digital recorder was not played on the spot by PW4, after the same was obtained from PW2. PW4 did not even take care to see whether the digital recorder had recorded the discussions that took place between the accused and PW2. On the other hand, he had chosen to keep it in a sealed cover and submit it to the Court, without the same being played to find out the matters recorded therein. It is also an admission made by PW4 that, being the Trap Laying Officer his job was over after conducting the trap operation and that the investigation was done by PW9. But it is pertinent to note that in Ex.P5 recovery Mahazar it has been noted that the Samsung Digital Recorder, which was kept in the pant pocket of Manoj Singh was taken out , sealed in a cover and duly signed by the independent witnesses. The said digital recorder was initially submitted to the Court with the mahazar. Having submitted the same to the Court without playing it, the Investigating Officer should have submitted a request to the Court to send the digital recorder to the Forensic Lab for decoding the matters recorded therein. Instead of doing it, what the Investigating Officer did was to collect the digital recorder from the Court on 01.09.2003 and play it in the presence of witnesses after removing the sealed cover. Evidence is let to the effect that when it was thus played, it was found that the conversation recorded therein was not audible. It is also pertinent to note that even thereafter, the Investigating Officer did not give any request to the Court to send the digital recorder to the Forensic Science Laboratory for decoding the conversation recorded therein.
22. It is the contention of the learned senior counsel for the appellant/accused that the Investigating officer, being conscious of the fact that the conversation between the accused and PW2 recorded in the digital recorder would reveal the fact that there was no admission and acceptance of bribe by the appellant/accused from PW2 and on the other hand, it would prove or at least make probable the defence case of the accused that PW2 had normal discussion with the appellant/accused and shook hands with him, the Investigating Officer tampered with the digital recorder by erasing the conversation recorded therein and that the same is the reason why the digital recorder was not sought to be sent to the Forensic Science Laboratory for examination. The said contention of the learned senior counsel for the appellant/accused seems to be quite tenable and this Court cannot discard the said contention as one made without any basis or without any substance in it. The very fact that the Investigating Officer had chosen to get back the digital recorder from the Court without requesting the Court to send the same to the Forensic Science Laboratory for examination and failure to submit a request even thereafter to send it for the examination of the experts at the Forensic Laboratory, will make the contention of the appellant/accused that the conversation recorded in the digital recorder were against the prosecution case and that the same is the reason why, same was tampered with by erasing the conversation recorded therein after getting back the digital recorder from the Court.
23. Yet another vital discrepancy is also found in the prosecution case, which will make the evidence of PW2 itself unreliable. According to the evidence of PW2, on the previous day, namely 28.07.2003, he met the appellant/accused at 12.00 Noon and only at that point of time, he demanded bribe, pursuant to which, he decided to lodge a complaint with the C.B.I. Ex.P2 is the complaint. The complaint contains a recital to the effect that on 28.07.2003 at about 04.00 p.m PW2 went to the office of the Trade Marks Registry, met the appellant/accused and enquired about the applications, whereupon the appellant/accused demanded a sum of Rs.1000/- for giving the application number. Therefore, it is obvious that the oral evidence of PW2 regarding the time of the demand of bribe made by the appellant/accused is contradictory to the contents of Ex.P2 complaint.
24. The complaint is said to have been lodged at 05.30 p.m. The time gap is only 1 = hours. Within the time gap of 1 = hours, PW2 could not have got particulars about the place of the office of the Superintendent of Police, C.B.I, gone there and lodged the complaint. Therefore, it is quite obvious that he should have planned it much earlier, perhaps with the connivance of his paternal uncle Kehari Singh, as contended by the learned senior counsel for the appellant. The very foundation of the prosecution case itself is shaken, because of the said contradiction. When it is coupled with the fact that the digital recorder has also been tampered with, it is very difficult to endorse the view of the learned trial Judge that the charges framed against the appellant/accused have been proved by the prosecution beyond reasonable doubt. Apart from the failure on the part of the prosecution to prove the story of the prosecution beyond reasonable doubt, the evidence, especially the admissions made by the prosecution witnesses, also go to show that the defence version of the appellant/accused that the case is a foisted one at the help and instigation of Kehari Singh is more probable than the prosecution version. A proper appreciation of evidence shall lead to one and the only conclusion that the prosecution miserably failed to prove any one of the charges framed against the appellant/accused.
25. Therefore, this Court does have no hesitation in arriving at a conclusion that the judgment of the learned Principal Special Judge for C.B.I Cases, Chennai dated 21.11.2006 convicting the appellant/accused for the offences under Sections 7 of the Prevention of Corruption Act, 1988 and Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988, is defective, infirm and hence liable to be set aside and that the appellant/accused is entitled to his acquittal holding him not guilty of the offences with which he stood charged, since the prosecution failed to prove any one of the charges framed against him.
26. In the result, the appeal succeeds and the judgment of the trial Court is set aside both in respect of conviction and punishment. The appellant/accused is acquitted of both the offences with which he stood charged and he is set at liberty. Fine amount collected, if any, shall be refunded. The bail bond executed shall stand cancelled.
gpa To
1. The Addl.Superintendent of Police ACB/C.B.I/Chennai
2.The Principal Special Judge for C.B.I Cases Chennai