Madras High Court
Karpoora Sundaram vs State Represented By on 12 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.62 of 2012
Karpoora Sundaram ...Appellant / Sole Accused
Vs.
State represented by
The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Ramanathapuram.
[Crime No.1 of 2002] ...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(3) of the Criminal
Procedure Code, to call for the records relating to the judgment
dated 21.03.2012 in Spl.C.C.No.2 of 2004 passed by the learned
Chief Judicial Magistrate, Ramanathapuram and set aside the same
and allow this appeal.
For Appellant : Mr.T.Antony Arulraj
For Respondent : Mr.M.Chandrasekaran
Additional Public Prosecutor
JUDGMENT
The criminal appeal has been filed seeking to set aside the judgment passed by the learned Chief Judicial Magistrate, Ramanathapuram in Spl.C.C.No.2 of 2004 dated 21.03.2012.
2. The case of the prosecution is that in order to get licence for selling food stuff in the premises of Municipality, the Defacto complainant namely, P.W.2 approached the office of the http://www.judis.nic.in Municipality, in which, the appellant / accused was working as 2 Sanitory Inspector, and on 13.02.2002, at about 04.00 p.m., P.W.2/De facto Complainant met the appellant and for getting the licence in the name of his wife, P.W.2/De facto Complainant was asked to pay the licence fees of Rs.25/-. He subsequently paid the amount. Then, the appellant demanded a sum of Rs.500/- as bribe stating that if P.W.2/De facto Complainant gives the money, he can get the licence. Again, on 16.02.2002, at about 01.30 p.m., the appellant met P.W.2/De facto Complainant nearby bridge and demanded the said bribe amount of Rs.500/- and P.W.2/ De facto Complainant stated that he had no money and after arranging money, he would collect the licence. Since he was unwilling to pay the bribe amount, he approached the respondent police on 19.02.2002 and gave a written complaint against the appellant an action to be taken against him.
3. Based on the complaint, a case was registered by the P.W.12-Inspector of Police, Vigilance and Anti Corruption, Ramanathapuram, in Crime No.1 of 2002. After registering the First Information Report and after summoned the independent witnesses [P.W.3 and yet another witness], a trap was planned and the trap procedure was demonstrated to P.W.2/De facto Complainant in the presence of the independent witnesses. Thereafter, P.W.12/Trap laying Officer, prepared entrustment http://www.judis.nic.inmahazar and asked P.W.2/De facto Complainant and P.W.3/shadow 3 witness to go to the office of the appellant. P.Ws.2 and 3 went to the office of the appellant at about 05.00 p.m. Then, the appellant demanded the money and P.Ws.2 and 3 handed over the money to the appellant. Thereafter, they came out and gave the prearranged signal to P.W.12/Trap Laying Officer, who in turn, after receiving the signal from P.W.2/de facto complainant, along with team members, had rushed to P.W.2/de facto complainant. He had narrated the happenings took place inside the room and the P.W.3/shadow witness had also corroborated the evidence of P.W.2/de facto complainant. Thereafter, P.W.12/Trap Laying Officer went inside the room of the appellant, the Defacto complainant identified the appellant and phenolphthalein test conducted on both the hands of the appellant proved positive. P.W.12/Trap Laying Officer recovered the tainted money, as identified by the appellant. The serial number of currency notes were compared and found to be tallied with the entrustment mahazar. The tainted money was recovered through recovery mahazar in the presence of the independent witnesses and signatures were obtained from the witnesses and from the appellant, subsequently, the case was entrusted to P.W.13 [Investigation Officer]. After completion of the investigation, a charge sheet was laid against the appellant under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 before the learned Chief Judicial Magistrate, http://www.judis.nic.inRamanathapuram. The said charge sheet was taken on file in 4 Spl.C.C.No.2 of 2004 and after completing the legal formalities, the charges were framed against the appellant.
4. In order to prove the case of the prosecution, on the side of the prosecution, as many as 11 witnesses were examined as PW.1 to PW.13, 18 documents were marked as Ex.P.1 to Ex.P18 and 5 material objects were exhibited.
5. After completion of the prosecution evidence, when the incriminating materials culled out from the prosecution witnesses were put before the appellant / accused, the appellant denied them as false. On the side of the accused only one oral evidence and one documentary evidence were let in to establish his defence.
6. After hearing the arguments and also considering the materials placed on record, the learned Chief Judicial Magistrate, Ramanathapuram found the appellant guilty and convicted him and sentenced to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months for having committed the offence under Section 7 of the Prevention of Corruption Act and sentenced to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.1,000/-, in default to undergo simple http://www.judis.nic.inimprisonment for a period of three months, for having committed 5 the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.
7. Against the judgment of the conviction and sentence imposed by the learned Chief Judicial Magistrate, Ramanathapuram, the convict has preferred the present appeal before this Court.
8. The learned Counsel for the appellant would submit that the prosecution has not proved that P.W.2/Defacto Complainant submitted an application before the appellant on 13.02.2002 and even from the evidence of P.W.9-Sanitary Supervisor, it is clearly stated that only he issued the application form and the prosecution has stated that the application form [Ex.P.7] was recovered from the bureau of the appellant, which was submitted only on 07.01.2002 and not on 13.02.2002 as stated by the prosecution. The prosecution has failed to prove that the appellant has no room to receive the application form and also the prosecution has not proved that on 13.02.2002, P.W.2/De facto Complainant submitted the application form to the appellant. There was no such application form recovered by the prosecution and proceeded to the Court. Therefore, it is doubtful. Further, P.W.2/De facto Complainant has a motive against the appellant. http://www.judis.nic.inThere was a case against P.W.2/De facto Complainant's father. In 6 that case, the appellant gave evidence against his father. Therefore, P.W.2/De facto Complainant had a strict vengeance against the appellant to set up a false case. More over, the prosecution has not stated the evidence of the appellant / accused. Therefore, the prosecution has failed to consider these aspects. Therefore, the finding of the prosecution is perverse. The prosecution failed to prove the case beyond reasonable doubt and also failed to prove the demand made by the appellant from P.W2/Defacto Complainant on 19.02.2002 and also the evidence of D.W.1 has strengthened the case of the defence. Therefore, the judgment of the trial Court warrants interference of this Court.
9. The learned Additional Public Prosecutor would submit that the evidence of P.W.2/Defacto Complainant, P.W.3 [shadow witness] and P.W.12 [trap laying officer] clearly proved that the appellant demanded the money from P.W.2/Defacto Complainant in order to give licence in favour of his wife to sell the food stuff namely pickles within the premises of Municipality. P.W.4 is the wife of P.W.2/De facto Complainant. She has corroborated the demand made by the appellant. Even in the absence of P.W.2/Defacto Complainant, the appellant went to the house of P.W.2/Defacto Complainant and asked P.W.4 about her husband. For which, she stated that the appellant is not available. http://www.judis.nic.inSubsequently, the appellant met P.W.2/Defacto Complainant 7 nearby bridge. Then, the appellant demanded money stating that after giving him money, he can get the licence. Since, P.W.2/Defacto Complainant was not willing to give bribe amount, he approached the respondent police and gave a complaint to P.W.12-Inspector of Police, Vigilance and Anti Corruption, Ramanathapuram [trap laying officer]. As advised by him, he has brought a sum of Rs.5,000/- and handed over to P.W.12 [trap laying officer] and prepared entrustment mahazar. Subsequently, the trap laying officer explained about the trap procedure and proceeded to the office of the appellant on 19.02.2002. P.W.2/De facto Complainant and P.W.3 [shadow witness], in their evidence, stated that the demand and acceptance were made by the appellant. After receiving money, they informed P.W.12 [trap laying officer] by way of prearranged signals. Subsequently, P.W.3 [shadow witness] has spoken about the demand made by the appellant and also the bribe money received by the appellant from P.W.2/De facto Complainant and then, recovery was made by P.W.12 [trap laying officer]. In Ex.P.4, it is made by the appellant only on 11.02.2002 not as stated by the learned counsel appearing for the appellant i.e., on 07.01.2002. The application form [Ex.P.7] is not related to the present case. P.Ws.7,8 & 9 have spoken about the initial procedure and also the application form given to the appellant. P.W.2/Defacto Complainant has stated that on http://www.judis.nic.in19.02.2002 at about 05.15 p.m., a trap laying team came to the 8 office of the appellant and also recovered the money from the appellant. Hence, the prosecution has proved its case beyond reasonable doubt and there is no reason to interfere with the judgment of the trial Court.
10. Heard both sides and perused the records.
11. It is a specific case of the prosecution that P.W.2/De facto Complainant in order to give licence in favour of his wife to sell the food stuff namely pickles within the premises of Municipality, approached the office of the Municipality and submitted an application form on 11.02.2002. Then, on 13.02.2002, the appellant demanded money for receiving the licence. Since P.W.2/Defacto Complainant was unwilling to pay the bribe amount, he approached the respondent police and gave a complaint. P.W.12 [Trap Laying Officer], after receiving the complaint, registered a case and after demonstration of the trap procedure, he conducted a trap at the office of the appellant. Trap was successfully conducted and recovered the money in the absence of the independent witnesses. Thereafter, the case was handed over to the Investigating Officer and after completion of investigation, he laid a charge sheet.
http://www.judis.nic.in 9
12. A reading of the deposition of P.W.2/Defacto Complainant clearly shows that P.W.2/Defacto Complainant, in order to give licence in favour of his wife to sell the food stuff namely pickles within the premises of Municipality, approached the appellant in the office of the Municipality. The appellant also told him to file a form. He also filed a form and also paid the necessary statutory fees. Subsequently, the appellant demanded a sum of Rs.5,000/- on 13.02.2002 stating that after giving him bribe money, P.W.2/Defacto complainant would get the licence. Since he was unwilling to pay the bribe amount, he approached the respondent police. The respondent police has spoken about the trap procedure and the entrustment mahazar. Then, trap team proceeded to the office of the appellant. Demand of Rs.500/- was given to the appellant by P.W.2/Defacto Complainant. After receiving the bribe money, P.W.2/Defacto Complainant and P.W.3 informed to P.W.12 by way of prearranged signals.
13. P.W.3-independent witness [shadow witness], in his evidence, he has clearly stated that as per the instructions of the superior, he approached P.W.12 [trap laying officer] in his office on 19.02.2002, in which, P.W.12 [trap laying officer] introduced P.W.2/Defacto Complainant and also explained about the complaint given by P.W.2/Defacto Complainant. P.W.3 [shadow witness] has http://www.judis.nic.inalso confirmed with P.W.2/Defacto Complainant about the 10 complaint given by him. P.W.12 [trap laying officer] thereafter, demonstrated the pre trap proceedings and also prepared the entrustment mahazar and the test of Sodium Carbonate Solution. Then, P.W.3 [shadow witness] accompanied with P.W.2/Defacto Complainant to the office of the appellant. When the appellant made a demand from P.W.2/Defacto Complainant, he handed over the money to the appellant and after receiving the money, he kept the money in his pant pocket. Then, he went outside. P.W.2/Defacto Complainant gave the prearranged signals to P.W.12 [trap laying officer] and then P.W.12 entered into the office of the appellant and identified the appellant and the appellant was enquired by P.W.12 [trap laying officer]. Thereafter, the trap team conducted the test of Sodium Carbonate Solution and asked the appellant to dip his fingers. After changing the colour into pink, the trap team recovered the tainted money and compared the serial numbers of the currency notes with the serial numbers of the currency notes mentioned in the entrustment mahazar.
14. P.W.12-Trap Laying Officer, in his evidence, has clearly spoken about the complaint made by P.W.2/Defacto Complainant and after registering FIR, he summoned to the independent witnesses and thereafter, prepared entrustment mahazar, demonstrated the trap procedure and conducted the http://www.judis.nic.inpre-trap procedure with the trap team. After receiving the 11 prearranged signals from P.W.2/Defacto Complainant, he proceeded to the office of the appellant and he introduced himself and identified the appellant and conducted the test of Sodium Carbonate Solution and then, recovered the tainted money and also prepared recovery mahazar.
15. P.Ws.7,8 and 9, who were working as the Junior Assistant, Junior Assistant and Sanitary Supervisor in V Division respectively, in the office of the appellant, in their evidence, have spoken about the filing of applications for issuance of the licence and the earlier applications submitted by the appellant and stated that on 19.02.2002, at about 05.15 p.m., the trap team came there. P.W.1 is the sanction authority, who has clearly spoken about the sanction accorded to file a case against the appellant.
16. P.W.4-Wife of the P.W.2/Defacto Complainant, in her evidence, has clearly stated that before the date of 19.02.2002, the appellant came to her house and asked about her husband. From the evidence of P.W.4 [wife of P.W.2], it is seen that the appellant demanded money.
17. Though the learned counsel appearing for the appellant would submit that the application submitted by http://www.judis.nic.inP.W.2/Defacto Complainant [Ex.P.4] was not signed by 12 P.W.2/Defacto Complainant or his wife [P.W.4], P.W.2/Defacto Complainant has signed in the very same application [Ex.P5], which is in the reverse side, and the application was submitted before the Municipality on 11.02.2002, in which, the date seal is also available. On 19.02.2002, all the other witnesses, those who were present at the time of trap, signed in it. Even though P.W.4 [wife of P.W.2] has not signed it, P.W.2/Defacto Complainant has signed it. There is a material to show that this is not a first application filed by P.W.2/Defacto Complainant. P.W.2/Defacto Complainant was doing other business and got other licence also. The learned counsel appearing for the appellant has stated that the licence obtained by P.W.2/Defacto Complainant has not been produced. Non-production of the licence obtained by P.W.2/Defacto Complainant in other business is not fatal to the case of the prosecution. Non signing by the wife of the appellant is also not fatal to the case of the prosecution.
18. The crux of the case is that in order to get the licence in the name of P.W.2's wife to sell the pickles within the jurisdiction of the Paramakudi Municipality, P.W.2/Defacto Complainant approached the office of the appellant. The appellant demanded a sum of Rs.500/- as bribe for issuing the licence. http://www.judis.nic.in 13
19. Though the learned counsel appearing for the appellant has stated that the recovery of the application forms were recovered from the bureau, P.W.8 and P.W.9 have stated in their evidence that they have issued the application forms. Therefore, there is a contradiction between the evidence of P.Ws.8 & 9 and other witnesses.
20. A reading of the evidence of D.W.1 shows that the appellant has attempted to take the defence that when he removed his pant, hang it in the wall and left to the wash room, P.W.2/Defacto Complainant came to his office and kept the tainted money in his pant pocket. The defence taken by D.W.1 is unnatural. Because, it is impossible that a person will simply enter into the Government office and keep the money in the officer's pant pocket.
21. Further, at the time of trap proceedings, neither D.W.1 was present, nor has given statement before the investigating officer or any other superior officer. Hence, the presence of D.W.1 is doubtful and his evidence is not believable. The appellant has not proved his defence in the manner known to law and the defence taken by the appellant is not acceptable. http://www.judis.nic.in 14
22. Even though the learned counsel appearing for the appellant attributed the strong motive against P.W.2/Defacto Complainant and also the Commissioner of Municipality, there is no strong motive against P.W.3-independent witness or P.W.12 [Trap Laying Officer] and also P.W.7,8 and 9, co-workers, those who were working in the Municipality. Strong motive against P.W.2/De facto Complainant is not a ground to disbelieve the evidence of other witnesses.
23. On a reading of the evidence of P.W.3 and P.W.4, demand is proved and the date of the demand is also proved from the evidence of P.W.2/Defacto Complainant and P.W.4. From the evidence of P.W.3 and P.W.12, the date of occurrence i.e., 19.02.2002 is proved. From the documents of entrustment mahazar and recovery mahazar, recovery of the tainted money from the appellant is proved. From the evidence of P.W.10 and Ex.P.16, it is proved that Sodium Carbonate test was conducted and resulted in positive.
24. Therefore, once demand, acceptance and recovery are proved, as per Section 20 of the Prevention of Corruption Act, it is the presumption that the money recovered form the appellant is the tainted money and it is for the appellant / accused to explain, as to how the tainted money came into his possession especially in his http://www.judis.nic.inpant pocket. No doubt. It is the rebuttable presumption. 15
25. A reading of the entire materials placed on record shows that the prosecution has proved its case beyond reasonable doubt, through oral and documentary evidence. Even though there are contradictions among the prosecution witnesses, they are not vital contradictions and the same will not vitiate the case of the prosecution and go to the root of the prosecution case. Therefore, the contradictions are not material contradictions to vitiate the case of the prosecution. The entire material evidence go to show that he failed to prove his defence.
26. From a reading of the defence taken by the appellant and careful reading of the evidence of D.W.1 and the submissions made by the learned counsel appearing for the appellant, this Court finds that the defence taken by the appellant is after thought and also the appellant has not proved the defence in the manner known to law. The presence of D.W.1 is also doubtful. None of the persons, who were present at the time of the occurrence on 19.02.2002, in the office of the appellant, has stated the presence of D.W.1 and there was no corresponding entry in the official records to show that D.W.1 was present on that day. Therefore, the presence of D.W.1 in the office of the appellant itself is highly doubtful and not believable and D.W.1 was a set up by the appellant. Hence, this Court rejected the evidence of D.W.1. http://www.judis.nic.inEspecially when PW3 independent witnesses has clearly spoken 16 about the demand and acceptance of bribe by the appellant and defence has not given any valid reason to disbelieve the evidence of PW3 shadow witness.
27. This Court finds that the presumption under Section 20 of the Prevention of Corruption Act has not been rebutted by the appellant in the manner known to law. Therefore, in the absence of rebuttal and also no motive has been attributed against P.W.3 [shadow witness], this Court finds that there is no reason to disbelieve the evidence of P.W.3.
28. Under the above circumstances and from the evidence of P.Ws.1,2,3,4 and 12, this Court finds that the appellant has committed an offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. Since this Court is the appellate Court, as fact finding Court, this Court has to re-appreciate and revisit the entire oral and the documentary evidence produced before this Court and give independent findings.
29. On a reading of the entire oral and documentary evidence, this Court finds that the prosecution has proved its case beyond reasonable doubt against the appellant and there is no sound reason to set aside the judgment of the trial Court and acquit http://www.judis.nic.inthe accused.
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30. In view of the discussion held above, this Court does not find any merit in the appeal and the same is liable to be dismissed.
31. In the result, the present criminal appeal is dismissed and the judgment rendered in Spl.C.C.No.2 of 2004 passed by the learned Chief Judicial Magistrate, Ramanathapuram, dated 21.03.2012 is hereby confirmed. The respondent is directed to secure the custody of the appellant forthwith to undergo the remaining period of sentence.
12.12.2018 Index : Yes/No Internet : Yes /No sm To
1.The Chief Judicial Magistrate, Ramanathapuram.
2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Ramanathapuram.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 18 P.VELMURUGAN, J.
sm Crl.A.(MD)No.62 of 2012 12.12.2018 http://www.judis.nic.in