Madras High Court
Rm.Rajamanickam vs State on 25 January, 2008
Author: S.Ashok Kumar
Bench: S.Ashok Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 25/01/2008 Coram THE HON'BLE Mr.Justice S.ASHOK KUMAR Criminal Appeal Nos.167, 183, 188, 192 of 2004 and Criminal Appeal Nos.197 of 2004 RM.Rajamanickam .. Appellant/A.5 (Crl.A.167/04) Thiruvettai .. Appellant/A.1 (Crl.A.183/04) S.Ramakrishnan .. Appellant/A.3 (Crl.A.188/04) D.Jayachandra Pandi .. Appellant/A.4 (Crl.A.192/04) S.Jayakumar .. Appellant/A.2 (Crl.A.197/04) Vs. State by Superintendent of Police, SPE/CBI/ACB/Chennai RC.No:MA.2001 A0017 .. Respondent in all Crl.As Criminal Appeals are filed under Section 374 Cr.P.C., filed against the judgment dated 5.10.2004 passed in C.C. No: 5 of 2002 on the file of the learned Special Judge for CBI Cases, Madurai, and to set aside the conviction and sentence and acquit the accused. !For Appellants ... Mr. Thirumalai Raj, S.C., for Mr.S.Navaneetha Kannan (Crl.A.183/04) Mr.Ashok Kumar, S.C., for Mr.K.Jegannathan (Crl.A.167/04) Mr.M.Venkataraman (Crl.A.188/04) Mr.C.Vijayakumar (Crl.A.197/04) ^For Respondent ... Mr. R.Ponnusamy Spl.P.P.,for CBI :COMMON JUDGMENT
These Criminal Appeals are directed against the conviction of all the accused, who were convicted and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/= in default to undergo R.I.,for Six months for each of the offences under Sections 120 (B) IPC r/w Sections 7, 12 and 13(2) r/w.13(1)(d) of the Prevention of Corruption Act; under Section 7 of the Prevention of Corruption Act; under Section 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, except A.5 who was convicted and sentenced to undergo R.I.for two years and to pay a fine of Rs.5,000/= in default to undergo RI for three months for each of the offences under Section 120(B) IPC r/w.7,12 and 13(2) r/2.13(1)(d) of the P.C.Act and under Section 12 of the P.C.Act. The sentence of imprisonment was ordered to run concurrently.
2. The brief facts of the case prosecution is as follows:-
Between the period 1.12.200 and 18.5.2001, A.1 was working as Superintendent of Central Excise Preventive Unit at Dindigul. A.2 was working as Inspector in the same Unit from December 2000 to March 2001 and thereafter promoted as Superintendent till 18.5.2000. A.3 and A.4 were working as Inspectors in the same Unit during the relevant period. P.W.2 was working as Inspector in the same Unit from 13.6.2000 to 7.3.2001 and thereafter was working as Inspector in Central Excise, Vadipatti Range. A.5 was a lessee of M/s.Bojaraj Textiles Mills (B-Unit) at Silukkuvarpatti, Nilakkottai under the lease agreements Exs.P.42 and P.43. The said mill was engaged in converting the cotton into various types of yarns. A.5 prepared invoices as if the finished yarn were sold to M/s.Rajamanickam, of which , he was the Proprietor. The allegation against him is that the central excise duty was paid on the value shown in the invoices which were lesser than prevailing market value. After the receipt of the yarn from M/s.Bojarj Textiles Mills, in his name, he again raised invoices at a lower value in the name of M/s.Lokanayagi Cotton Company, Thiruppur of which his wife Mrs.Logambal was the Proprietrix. Thereafter he was selling the yarn to other purchasers at market value which was higher and thus the same did not attract excise duty.
3. On 1.1.2000, A.1 to A.4 and P.W.2 inspected M/s.Bojaraj Textiles Mills and obtained statement Ex.P.22 from D.Chandrasekaran, Spinning master of the said Textiles Mills and prima facie found a case of duty evasion by A.5. A case was registered against M/s.Bojaraj Textiles Mills by the Preventive Unit, Dindigul Division in OR.No:18/2000. When A.1 to A.5 and Lokanayagi Cotton Company were directed to appear and produce documents, they did not turn up. Based on Ex.P.37, letter dated 29.12.l2000, P.W.5, Gandhi, who was working as Assistant Commissioner of Central Excise, Dindigul Division, requested the Assistant Commissioner of Central Excise (Anti Evasion) Coimbatore to conduct a search in the premises of A.5 and his wife's concerns and recover the documents relating to the sale of cotton yarn. Accordingly, documents including Exs.P.9 to P.11 invoices used by A.5 were seized and sent to the Dindigul Central Excise Preventive Unit under Ex.P.8 . Exs.P.12 and 13 are invoice books used by M/s.Lokanayaki Cotton Company which were recovered from the said Company at Tiruppur. The said documents were handed over to A.1 by P.W.5 for further investigation. As per the working sheet Ex.P.6 and calculation sheet Ex.P.7, the duty evasion of A.5 for the period from 2.4.2000 to 13.11.2000 was worked out at Rs.9.07,979/=. In the meanwhile A.2 was promoted as Superintendent, but for want of vacancy, he was not given the posting. P.w.2 was an active member in the Executive Officers' Association of the Central Excise Inspectors and he wanted to get retention at Dindigul itself on his promotion. On 11.5.2001, A.2 informed P.W.2 that A.1 had agreed to settle the case against A.5 by getting Rs.2 lakhs by replacing the vital documents and the said sum was to be paid by A.5 on 12.5.2001. P.w.2 was requested to be present by 5.30 pm., at Parvathi Lodge, Dindigul on that date as requested by A.1 and A.2 so that the money can be received from A.5. P.W.2 expressed his inability and informed A.2 that he will be available only on 15.5.2001. Again on 14.5.2001, A.2 informed and invited P.w.2 at the instance of A.1 to come to Parvathy Lodge, Dindigul where A.5 Rajamanickam will give the money.
4. Thereafter P.w.2 contacted CBI and informed P.w.17, Deputy Superintendent of Police about the whole affairs over phone. P.W.17 informed P.W.2 that he he would come to Madurai on 15.5.2001. P.w.2 informed A.2 that he would be available on 15.5.2001 as required by A.1.A.2 informed P.w.2 that he would pick up P.w.2 at Dindigul Bus stand and take him to Parvathy Lodge at about 5,.30 hours as instructed by A.1. On 15.5.2001 morning P.W.17 went to the house of P.w.2 and P.W.2 narrated all the instances and P.W.17 asked P.w.2 to give a written complaint. Thereafter P.w.2 gave Ex.P.16 complaint to P.w.17 at the Railway Guest House where P.W.17 was staying at that time. P.W.17 then contacted the Superintendent of Police, CBI, Chennai over phone who instructed him to proceed with the investigation. P.W.17 faxed Ex.P.16 complaint and P.W.18, Sri Thomas John registered a case on the basis of the fax complaint Ex.P.56 in RC.No:17/2001 under Section 120-B r/w.7,12 of the P.C.Act against A.1 and A.5 and prepared printed FIR under Ex.P.54. PW.17 also made arrangements for two official witnesses from the State Bank of India and also a vehicle . P.W.6 Sri.Mohanachandran, working as Deputy Manager in the Zonal Office SBI, Madurai and his colleague Sri.Kailasam came to the Railway Guest House at about 2.00 p.m., and met P.w.17 who introduced P.w.2 to them. They read the complaint and satisfied. Then pre-trap mahazar under Ex.P.17 was prepared at the Railway Guest House. When the trap team left for Dindigul, P.W.2 got down at Chinnalapatti, which is 10 k.m., away from Dindigul and from there he boarded a bus to Dindigul and reached the Dindigul Bus stand. The other members of the trap team proceeded to Parvathy Lodge. At about 4.15 pm., when P.W.2 contacted A.2, A.2 informed him that A.1 has shifted the place from Parvathy Lodge to A.2's house as A.2's wife was not in the house. P.w.2 advised A.2 not to allow his house for such activities. A.2 came to the Bus stand to pick up P.w.2 and then both went to Parvathy Lodge. In the meantime A.1 contacted A.2 to bring P.W.2 to Parvathy Lodge as planned earlier. P.W.2 and A.2 reached Parvathy Lodge and other members of the Trap team went to Parvathy Lodge and took position in a jewellery shop opposite to the Lodge. P.W.2 and A.2 went inside the Lodge and waited at the reception as A.1 and A.5 were not there. Some time later, A.5 informed A.2 over his mobile phone that A.5 and A.1 had already reached the Lodge and were taking tiffin in the restaurant of the same Lodge. Few minutes later A.5 followed by A.1 came out from the restaurant. Few minutes later A.3 and A.4 came out from the Restaurant. At that time, A.2 received a call in his mobile phone from one Siva, friend of A.4, A.2 gave his mobile phone to A.4 and he started talking with his friend. At that time A.5 went to the reception counter and booked room No.207 at the second floor and A. 1 to A.3 and A.5 and P.W.2 reached the second floor by lift, while A.4 climbed through the stairs to reach the Room No.207 by talking with his friend through A.2's mobile phone. After all of them entered into the room A.1 asked A.5 whether he brought the money. A.5 told that the money was with his accountant and went outside and returned back to the room with a maroon colour Rexin bag. A.5 opened the bag and took out two bundles of Rs.500/= currencies and ten bundles of Rs.100/= currencies and displayed them on the cot. A.1 took one bundle of Rs.500/= currencies and put it into one of his pant pockets and then he took another such bundle and put into his other pant pocket. Then he took five bundles of Rs.100/= currencies and wrapped in a news paper and put it inside his baniyan. Then A.1 bundled the remaining five bundles of Rs.100/= currencies and gave it to A.3. Then A.5 asked A.1 by what time A.1 would return the original invoices. A.1 asked A.5 to wait in the room and he would come with the documents at 7.00 pm. After these transactions all of them came out of the room and came to the entrance of the Lodge. P.W.2 gave the prearranged signal by wiping his face with the hand kerchief. P.W.17 along with other inspectors and other witnesses rushed to the entrance of the Lodge and surrounded the accused. In the mean time, A.2 left the place in his motor cycle.
5. A.1, A.3, A.4, A.5 and P.W.2 were taken to Room No.207. In the presence of the witnesses they were questioned by P.w.17, and A.1 produced Rs.1.5 lakhs, A.5 produced Rs.50,000/=. The recovered amounts are M.Os-1 A to D. When the room was searched M.O.II Mobile Phone as recovered. Then Toyoto Qualis car of A.5 parked in front of the Lodge was searched. From the said car Exs.P,9 to P.15 and Ex.P.40 were recovered. The entire trap proceedings were recorded under Ex.P.18. P.W.17 also searched the house of A.1. As per the orders of the Superintendent of Police, CBI, Chennai, P.w.17 handed over the materials and other papers to P.W.18 for further investigation. P.W.18 took up further investigation and examined witnesses and collected documents. After completion of investigation he forwarded his report to the Superintendent of Police, CB, Chennai and he took steps to obtain sanction from the competent authority, PW.1 who was working as Commissioner of Central Excise to prosecute A. 1 to A.4. P.W.1 after a perusal of all the materials accorded sanction under Ex.P.1 to prosecute A.1 to A.4 and thereafter P.w.18 filed the charge sheet in to the court.
6. Before the learned Principal Special Judge for CBI Cases, Madurai, the case was tried as C.C.No:5 of 2002. On behalf of the prosecution P.Ws.1 to 18 were examined as witnesses and Exs.P.1 to P.67 and M.Os.1 series to M.O.2 were marked. On behalf of the accused, D.Ws 1 to 4 were examined and Exs.D.1 to D.8 were marked.
7. The accused were examined under Section 313 of Cr.P.C., with reference to the incriminating circumstances of the prosecution witnesses. A.1 stated that P.W.2 Maheswaran thinking that he was responsible for his deputation to Vadipatti was aggrieved. A.2 though promoted as Superintendent could not joint at Dindigul since A.1 was already working as Superintendent in the Central Excise Office at Dindigul. P.w.2 Maheswaran and A.2 Jayakumar conspired together and without the knowledge of other officers stealthily took copies of the documents and made false complaint. He further stated that P.W.2 Mahesaran asked A.1 Thiruvettai to arrange for a loan of Rs.1.50 lakhs for his domestic expenses and requested A.1 to bring that amount to Parvathy Lodge, Dindigul. P.W.2 Maheswaran further promised to come and get that amount at Parvathy Lodge on 15.5.2001 at about 5.00 pm., A1 arranged that amount through his brother Thunaikalai (DW.2) who got that amount from his relative Maharajan (DW.4) on 9.5.2001 by executing a promissory note. Believing the words of P.W.2 Maheswaran A.1 Thiruvettai came to Parvathy lodge on 15.5.2001 at about 5.30 pm., There A.1 was arrested and his money Rs.1.5 lakhs was recovered from him by P.W.17. His signature was obtained in some documents. He was arrested and released. Next day he gave written petition to his higher officials narrating the incidents. A1 has no connection with documents which were said to have been recovered from the Toyato Qualis Car. False case has been foisted at the instance of P.w.2 and A.2.
8. A.2 has stated that he came to Parvathy Lodge Dindigul for the purpose of dropping P.W.2 Maheswaran at his request that he was able to guess that P.W.2 was taking steps against the corrupt deal that he had no intention to participate in the corrupt deal, that he extended his cooperation to the Investigating Officer, during investigation that he was wrongly implicated in the case.
9. A.3 has stated that on 15.5.2001, at about 5.30 pm., A.4 Jeyachandrapandi received a phone call from P.W.2. A.4 Jeyachandra Pandi requested A.3 Ramakrishnan to drop him at Parvathy lodge to discuss election matters with P.W.2 who was contesting for the post of General Secretary. When they were in reception hall the CBI officials arrested A.3 also and false case had been foisted against him.
10. A.4 Jeyachandra Pandi stated that on 15.5.2001 he received a phone call from Maheswaran, P.W.2 at 5.30 pm., At the instance of P.W.2 Sri Maheswaran he went to parvathy lodge to discuss election matters. He met him in the reception hall of Parvathy lodge. At that time he was the joint Secretary of the Association. P.W.2 Sri Maheswran requested A.4 Jeyachandra Pandi to support him for the post of Secretary. He did not go to room No.207. He was all along in the reception counter only. False case has been foisted against him.
11. A.5 stated that P.W.2 Maheswaran demanded a loan of Rs.50,000/= from him. On 15.52001, he went to Parvathy lodge as requested by P.W.2. That amount was recovered from him by CBI. His statement regarding the loan demanded by P.w.2 was not recorded by the CBI Official. False case has been foisted at the instance of P.W.2 he never gave any bribe to Excise Officials.
12. After consideration of the oral and documentary evidence, the learned Special Judge came to the conclusion that the offence alleged against all the accused as mentioned above have been proved and inflicted punishments as narrated earlier. Aggrieved over the said conviction and finding these Criminal Appeals are filed b A.1 to A.5.
13. The contention of the appellants before this Court is that the whole case is a drama enacted by the conspiracy hatched by A.2 and P.W.2 According to the contention of the accused, P.w.2 was aggrieved by thinking that A.1 was responsible for his deputation to Vadipatti and A.2 though promoted as Superintendent could not joint at Dindigul since A.1 was already working as Superintendent in the same office at Dindigul. P.W.2 and A.2 conspired together and without the knowledge of other officers stealthily took xerox copies of documents and made a false complaint. P.W.2 asked A.1 to arrange for a loan of Rs.1.50 lakhs and bring it to Parvathy Lodge. P.w.2 also demanded a sum of Rs.50,000/= as loan from A.5 and bring it to Parvathy Lodge on the same day at the same time and based on the request A.1 has arranged Rs.1.50 lakhs through his brother D.W.2 who got that amount from his relative D.W.4 on 9.5.2001 by executing a promissory note, Ex.D.7. But at the instance of A.2 and P.W.2 a false case was registered and the money required by P.w.2 was considered as a bribe and all the accused were fixed in the case. According to all the accused, a false case is foisted against them. The contention that P.W.2 himself booked a room in Parvathy Lodge and at his request A.1 and A.5 arranged money, particularly A.1 through his brother by executing a promissory note may be hard to believe.
14. To support the above contentions, the learned Senior Counsel appearing for all the accused put forth several points. To prove the contention that P.w.2 was aggrieved over his transfer to Vadipatti from Dindigul, the accused would press into service Ex.D.1, a representation made by P.W.2 himself to the Commissioner of Central Excise, Madurai, wherein in a three page letter he has mentioned as follows:-
"I am the Junior most Inspector as far as the Divisional seniority is concerned inasmuch as I joined the Preventive Group, Dindigul only on 13.6.2000. There are Inspectors in preventive group completing 4 years at Dindigul having their second tenure in the same preventive group of this division. I could not understand the logic/reason behind deputing the junior most Inspector of the division to a range that too in a TA point"...."I requested timely intervention of the Commissioner and my deputation may be cancelled".
In the cross examination by A.1, P.W.2 has deposed as follows:-
"I gave a representation to my Commissioner against the order of deputation given to me. In that representation I had expressed the different yardstick adopted by the authority in shifting me within 9 months and in allowing some other inspectors to work in the same station beyond years and more than 2 years".
(2). To prove the fact that A.2 though promoted as Superintendent was not given the posting but continued only as Inspector because unless A.1 was shifted from Dindigul, he could not get posting and therefore A.2 cooperated with P.W.2 in arranging the false case, the appellants would press into service the evidence of P.w.5, Deputy Commissioner of Customs who was then Assistant Commissioner of Central Excise in Dindigul Division, wherein he has deposed as follows:-
"During that period A.2 was promoted as Superintendent but for want of vacancy he was not given promoted post . If A.2 was to be given posting in the promoted post in Dindigul itself, that cold be possible only if A.1 Thiruvettai was disturbed".
(3). The next contention of the appellants is that A.2 was taking xerox of the documents stealthily without the knowledge of the others for the purpose of foisting a case in cooperation with P.W.2. To support this contention, the accused would rely upon the deposition of P.w.2 and 3. When cross examined on behalf of A.2, P.W.2 has deposed as follows:-
"It is true that during April 2001, A.2 Jeyakumar informed me that he had taken xerox copies of some invoices pertaining to Bojaraja Mills without anybody's knowledge from the "Central Excise Office".
P.W.3, a Sepoy, who is working in the same office, even in his chief examination has stated as follows:-
"Prior to the trap when A.2 was just promoted as Superintendent and waiting for posting, A.2 Jeyakumar gave me Ex.P.6 original document and requested me to take xerox copy of the same without being noticed by others and accordingly I took the xerox copy of Ex.P.6 and handed over the xerox copies under Ex.P.7 to A.2.
During cross examination by A.1, P.W.3 has further stated that "similarly A.2 Jeyakumar asked to me take out the invoices for more than Rs.1 lakh concerned in this case. I did it accordingly".
(4). The contention of the appellants is that P.w.2 asked financial assistance from A.1 and A.5, for which A.1 and A.5 obliged. If such a suggestion is made to P.W.2, whether he had requested any financial assistance from A.1 and A.5, the instant answer should be "no". But, on the other hand, during cross examination when P.W.2 was questioned on this aspect, he has stated as follows:-
"I do not remember to have asked any financial assistance or loan from A.1 in connection with my family affairs".
(5). Room No.207 in Parvathy Lodge was booked by P.w.2 only and that is why and for facilitating the trap, he insisted A.1 and others to come to Parvathy Lodge. It is also to be noted that the signature found in Exs.P.44, 45, 46 and 47 was not proved as that one belong to A.5. To support the said contention, the appellants would rely upon the chief examination of P.W.2 wherein he has deposed as follows:-
"I was waiting at Dindigul Busstand. Then A.2. Jeyakumar told me that A.1 had changed the venue of the deal and that the deal was slated to take place in Jayakumar's house as his wife was not in the house. Then I advised A.2 Jeyakumar not to allow his house for such activities".
In the trap Mahazar, Ex.P.18, it is not stted that A.5 booked Room No.207 in parvathy lodge. It is stated "Room No.207 which was booked in the name of Shri Rajamanicakam".
(6). During cross examination on behalf of A.2, P.W.2 has categorically stated as follows:-
"It is true that A.2 was made use of by me for the successful trap. It is equally true that A.2 came to the Dindigul bus stnd and Parvathy Lodge only for the purpose of taking me to Parvathy Lodge. It is equally true that I requested A.2 to wait at the Lodge itself for the purpose of taking me back to Bus stand".
15. As regards the involvement of A.3 and A.4, their names are not mentioned in the complaint Ex.P.16 given by P.w.2. P.w.2, while cross examined on behalf of A.4 has admitted as follows:-
"A.4, Jayachandrapandi belonged to our rival group... On sighting me the only thing A.4 spoken to me was about elections. .. It may be correct to say that A.4 Jayachandra Pandi was waiting at the lobby of the Lodge only for some discussions with me over the elections".
16. P.w.5 Deputy Commissioner who was working as Assistant Commissioner of Central Excise at the relevant point of time has deposed as follows:-
"A.3, Ramakrishnan worked under my control for less than a year. During trap time Election process was going on for the election of Office Bearers of Central Excise Executive Officers Association. A.3 was in the office till 5.30 p.m., on 15.5.2001. I know that A.3 Mr.Ramakrishnan was also involved in the election campaigning. I did not find any fault with A.3 during the period he worked under me".
17. P.W.7, who was working as Superintendent, Preventive Unit at Dindigul has deposed as follows:-
"A week prior to the occurrence there was an oral request to hold a meeting in connection with the election and the same was refused by me. That request came from A.4 Jeyachandra Pandi. Between 5.30 and 5.40 p.m., on 15.5.2001 I received a phone call asking the caller to be connected to A.4 Jeyachandra Pandi and I conveyed the same to A.4 Jeyachandra Pandi and he attended the phone. After attending the call Jeyachandra Pandi told me that he along with A.3 Ramakrishnan would be going out to meet P.W.2 Maheswaran".
18. In this connection P.w.2 has also admitted as follows:-
"I was an active member in our association. The election to the office bearers was to take place some days after 15.5.2001 and our team had been doing preparation work. The said election was slated for 22.6.2001. I had issued a signed appeal to my colleagues seeking support for our team in the election."
19. All the above admissions would show that P.w.2 belonging to a rival group in the election to the Executive Members of the Central Excise Office Bearers Association and A.3 and A.4 were in the rival group of P.W.2. As suggested by the learned senior counsels appearing for the appellants, it is probable that P.W.2 wanted to implicate A.3 and A.4 also even though they had no role to play in the fixing of excise evasion case against A.5. Though it is alleged that A.3 received Rs.50,000/=, the same was not recovered from A.3.
20. The above admitted facts would show that P.W.2 wanted A.1 to A.4 to assemble at Parvathy Lodge at a particular time and he himself invited A.3 and A.4 to come over there. He did not want to shift the venue from the Lodge to the house of A.2. Therefore, there is force in the contention of the counsel for the accused that P.W.2 pre-planned to assemble all the accused in the Lodge.
21. By relying upon the deposition of P.w.2, the learned counsel for the appellants would contend that because Pw.2 has booked the room in Parvathy Lodge and that is why not adhered to change the venue and insisted for gathering at Room No.207 only so that the trap could be successfully carried out. This contention of the learned counsel for the appellants cannot be brushed aside as one without substance. The interesting circumstances relied upon by the appellants that P.W.2 and A.2 conspired to foist this false case is that after the alleged complaint before P.w.17 and after pre-trap mahazar, when the trap team started from Madurai to Dindigul, P.w.2 was permitted to go with A.2 by P.w.17 as admitted by P.w.2. Further, normally in a trap case, the decoy witness (complainant) wold be all along with the trap launch officer till he reaches the venue and makes payment in the presence of independent witnesses. But, in this case, P.W.2 got down from the trap team at Sillukkuvarpatti on the way to Dindigul, which is about 15 km., away from Dindigul, from there he boarded a bus to Dindigul bustand where he asked A.2 to pick him up and A.2 has picked him in his motor cycle and both of them went to Parvathy Lodge. Why should P.w.2 separated himself from the trap team on the way to Dindigual at Silukkuvarpatti and why he should travel by bus to Dindigul busstand and why he should insist A.2 to pick him up by his motorcycle to Parvathy Lodge are all questions, which the prosecution is not able to answer. After the trap, A.1, and A.3 to A.5 were arrested by CBI at Parvathy Lodge. But A.2 was not arrested. He was allowed to go Scot-free in his motorcycle. That would show that A.2 and P.W.2 had planned in such a manner that the trap and arrest does not affect A.2. That is why, in his evidence P.w.2 has repeatedly stated that A.2 is innocent and he was falsely implicated in this case. Thus, as stated earlier, though the claim of A.1 and A.5 that they have brought the money at the request of P.w.2 for his family expenses seems to be a bigger pill to swallow, the improbabilities and inconsistencies in the prosecution case as put forward and discussed hereunder make the pill far smaller than the pill of the prosecution.
22. Receiving bribe by an accused is a secret affair, like a conspiracy and the recipient, public servant will be very careful that his receiving the money is not known to others. But, here is a case where A.1 is said to have insisted the presence of P.w.2, complainant at the time of receiving the bribe. According to the prosecution, bribe was originally arranged to be paid on 12.5.2001, on which date P.W.2 told that it is not convenient for him to come to Parvathy Lodge and therefore the date was changed to 15.5.2001 just to facilitate P.w.2 to come and witness the occurrence. It is not the case of the prosecution that the amount of Rs.2 lakhs was to be shared by A.1 to A.4 and PW.2. It is not the case of the prosecution that P.w.2 also had a share in the said amount. It is also not the case of the prosecution that P.w.2 had to do something or omit to do something by accepting the deal between A.1 and A.5. If that is so, what is the necessity for A.1 to insist for the presence of P.W.2? There is no evidence to show that A.1 to A.4 and/or with P.w.2 ever met at any place to discuss the case against A.5.
23. The motive for payment of bribe is to change the original document kept in the office of the Central Excise with fake documents produced by A.5, for which a reward f Rs.2 lakhs is alleged to have been paid by A.5 to A.1. On this aspect, two important question arise namely, what is the use of changing the documents after 11.5.2001? It is the admitted case of the prosecution that on 11.5.2001 itself A.1 has made a calculation of duty evasion committed by A.5 . P.W.5, Deputy Commissioner of Customs who was the then Assistant Commissioner of Central Excise, Dindigul has deposed as follows:-
"Commissioner, Deputy Commissioner and Assistant Commissioner were all seized of the case against Bojaraj Textiles Mill. A./1 Mr.Thiruvettai had put up a note even on 11.5.2001 that Bojaraj Textiles Mill might have evaded excise duty to the extent of Rs.9,07,979/=. The documents from Erode seized from Tiruppur were received by our office two months after 1.12.2000 (date of inspection). Cases involving fraud and suppression of fact will have to be adjudicated by the Commissioner only irrespective of the amount/quantum of duty evasion".
24. Ex.P.5 is the proceedings, dated 27.12.2000 in which A.1 has written as follows:-
Draft letter to Assistant Commissioner, Anti Evasion, Coimbatore Commissionarate is put up for orders...."
25. In the said letter, he has stated about the case and also the failure of the assessees to appear as per the summons, but asked for extension of time and has suggested the Assistant Commissioner, Anti Evasion, Coimbatore to conduct a search operations on the premises of the parties to collect necessary documents. On 5.2.2001 he has made a further note in the same proceedings "as no report has been received even after lapse of one month, a reminder letter addressed to AC/CBE is put up". Thereafter, on 11.5.2001, A.1 has put up the following note:-
"As per the worksheet total duty works out to Rs.9,07,979/= (BBD.7,89,547/= + ABD 1,18,432/=) which covered the period from 1.4.2000 to 31.11.2000. The invoice sales book from M/s.Rajamanickam to M/s.Lokanayaki for the period before March 2000 is not available. Hence the same may be called for from M/s.Rajamanickam. Hence I request the Assistant Commissioner to give direction for necessary action".
26. It is the case of the appellants that when even as on 11.5.2001 A.1 has already put up a work sheet and notes that for the period of 1.4.2000 to 31.11.2000 the duty evasion works out to a sum of Rs.9,07,979/=, where is the necessity or purpose for changing the original invoices with fake invoices after sending a note by A.1 to higher officials. In Ex. P.16 complaint given by P.w.2 to the Superintendent of Police, CBI, it is mentioned that "It is now learnt that they are planning to substitute the vital documents seized in this case by giving and accepting bribe of Rs.2 lakhs". When already a note has been put up calculating the amount of duty evasion by A.5, then what is the use of substituting vital documents seized in this case. The purpose for which money was demanded by A.1 was already served much prior to the alleged payment. If that is so, it will be difficult to believe that A.1 could have demanded any money for the work which had already been done. But in this case, curiously there is no allegation of any demand by A.1. It is not the case of the prosecution that Ex.P.5 document is false. The available evidence is that Ex.P.5 supported by the evidence of P.W.5, that notes were prepared by A.1 even on 11.5.2001 and it is the admitted case of P.W.5 that only the Commissioner of Central Excise can adjudicate on such matters. If that is so, no purpose will be served by paying Rs.2 lakhs to A.1 when Ex.P.5 proceedings have already been sent by A.1 to higher officials.
27. The second question that arises for consideration in this context is regarding exchange of fake documents with original documents available in the office of the Central Excise. As already stated, in Ex.P.16 P.W.2 has stated that Rs.2 lakhs is to be paid to A.1 for substituting the vital documents. The vital documents in this case are invoices in Exs.P.9 to P.11 which are sought to be substituted by fake invoices which are marked as Exs.P.19 to P.21. Even in his chief examination PW.2 has deposed as follows:-
"..At that time (while paying the money), A.5 Rajamanickam asked A.1 by what time A.1 would return the original invoices. A.1 told him to wait in the room and that he would come with the documents at 7.00 pm.,"
28. In Ex.P.18, Recovery Mahazar, it is stated as follows:-
"They assembled at Room No:207, Shri.Rajamanickam (A.5) handed over the bribe amount of Rs.2 lakhs to Shri Thriuvettai (A.1), and requested him to destroy the invoices seized earlier and to substitute the fresh set of invoices brought by him, Shri Thruvettai received the amount and told that he would bring the invoices seized by him earlier to Parvathy Lodge by 19.00 hours and destroy the same."
29. Therefore, the case of the prosecution itself is that for the purpose of destroying the original invoices which were kept in the office of Central Excise at Dindigul by substituting fake invoices, A.1 had received the amount. This is the definite case of the prosecution. But, on the other hand, Ex.P.18 Recovery mahzar would show that the original invoices Exs.P.9 to P.11 which were sought to be destroyed by substituting the fake invoices were found in the Toyoto Qualis car bearing Registration No:TN-39-5-5868 belonging to A.5 which was parked outside the Parvathy Lodge. Exs.P.9 to P.11 are the original invoices which were sought to be replaced by Exs.P.19 to P.21. Exs.P.9 to P.11 were supposed to be in the office of the Central Excise, Dindigul. But, on the other hand immediately after the trap even before drawing the trap mahazar itself, the documents were seized from the Toyoto Qualis car belonging to A.5.
30. P.W.17, Trap laying officer even in his chief examination has mentioned as follows:- "Then I searched the Toyato Qualis car parked in front of the Hotel in which A.5 Rajamanickam came to the Hotel. I seized 12 items of records from the car. They are Ex.P.9,10,11,12,13,14,15, the file in Ex.P.40 containing 95 invoices". The original invoices Exs.P.9 to 11 were already available with A.5 in his car. If it so, what is the necessity of A.5 paying the bribe to substitute the original documents with fake documents in future? If the original documents Exs.P.9 to P.11 were already available in his car, why should A.5 ask A.1 when he will return the originals for destruction by replacing the fake documents and why should A.1 should tell A.5 that he will return by 19.00 hours and hand over the originals so that it can be destroyed. As per Ex.P.18, Trap mahazar and evidence of P.W.17, A.1, A.3 to A.5 were arrested immediately and that there was no time given to any of the accused to exchange the documents. But the alleged fake invoices Exs.P19 to 21 were already available in the Office.
31. Further, P.W.18 has not stated in his evidence anywhere about the seizure of Ex.P.19 to P.21 which are said to be fake invoices. There is no evidence to show that the above documents were handed over to the prosecution Unit by A.5. When the prosecution case itself is that the amount of Rs.2 lakhs was received by A.1 from A.5 only for the purpose of substituting Exs.P.9 to P.11 available at the office with fake Exs.P.19 to P.21, and when this position is totally changed that even before the trap the originals were available with A.5, which are supposed to be available only in the Central Excise office and once we believe the evidence in this regard, as we must, then the entire bottom out of the prosecution is knocked out. The investigation has not disclosed as to how and when Exs.P.19 to 21 came to the office of Central Excise, Dindigul and there is no explanation on the part of the prosecution as to how, when and by whom the documents were already exchanged. If the exchange of documents had already taken place, then the very purpose of paying the bribe to A.1 is unnecessary.
32. It is the admitted case of the prosecution as seen from the evidence of P.W.2 that A.1 and A.5 came in a car to Parvathy Lodge. If both of them came in the car together then they could have exchanged documents on the way itself and money could have been paid in the car itself and there is no necessity for A.1 and A.5 to come all the way to Room No.207 of Parvathy Lodge. In this regard it is pertinent to note that A.2 to A.4 and P.w.2 have nothing to do in the transaction. Then, why should A.1 and A.5 come all the way to Parvathy Lodge to pay and receive the bribe amount in the presence of witnesses when as already stated receiving bribe will be done secretly by the public servant. Therefore, if A.1 wanted, he could have received the money either in his house or in the car itself and need not come all the way to a room booked in a Lodge.
33. It is the case of the prosecution that at the instance of A.1 , A.3 received 5 bundles of 100 rupee notes. But no recovery was made from A.3. On the other hand, recovery was made from A.5. There is no explanation as to why there is no money recovery from A.3 and why Rs.50,000/= was recovered from A.5. The prosecution case itself is that the amount was paid only for the purpose of substituting the fake invoices with original invoices. Ex.P.6 work sheet was prepared on the basis of the original invoices Exs P.9 to P.11. P.W.7, Deputy Commissioner of Central Excise in his chief examination has deposed as follows:-
"Ex.P.6 work sheet prepared on the basis of Exs.P.9 to P.11. In Ex.P.36 items 11 to 13 are the invoices pertaining to Exs.P.19,20 and 21. By comparing Exs.P.9 to P.11 with respect to Exs.P.19 to 21, it discloses that very same invoices, numbers, quantity, amount and date were shown. But the parties name in Exs.P.19 to 21 instead of M/s.Lokanayaki Cotton Company and and Keethi Nit Land shown as Sri Gowshik Cotton Company, Dharshini Traders, Anjaneya Trading Company and Jeyalakshmi Traders".
34. If the amount and quantity are the same both in the original invoices and fake invoices, except the change of the names of the trading company, I am at a loss to understand how this will be helpful to evade tax by A.5 and there is no explanation on the part of the prosecution as regards the admitted evidence of P.W.7.
35. The case against A.5 regarding excise duty evasion is born out of records. Even if A.1 wanted to close the case, he was not the authority to do so as admitted by P.W.4 by stating that "if a case is registered in our office, it can be closed only by the adjudicating authority in a quasi judiciary proceedings of adjudication. As a superintendent is not an adjudicating authority he cannot close any case". During cross examination for A.1, P.W.2 has admitted as follows: "I informed over phone to A.2 Jayakumar that the case could not be closed as it was born out from records". In this connection in 1976 (1) SCC 145, (Raghbir Singh Vs State of Punjab) a case in which the accused was a Passenger and Goods Tax Clerk II in the office of the Excise and Taxation Office, Amritsar, who was alleged to have demanded and accepted the bribe for granting exemption from goods tax, the Hon'ble Supreme Court held that the relief sought for by the complainant could not be granted since he was not the concerned authority to do so. In the said circumstances, the Hon'ble Supreme Court has observed as follows:-
"5. In the first place, it appears clearly from the evidence that the appellant had nothing to do with the grant of exemption from payment of passenger or goods tax. The appellant was, at the material time, Passenger and Goods Tax Clerk II and, according to the evidence of Harmohan Singh, who was Passenger and Goods Tax Clerk I, the order of allocation of work made by the Excise and Taxation officer assigned various duties to Passenger and Goods Tax Clerk II, but these did not include processing of application for exemption from payment of passenger or goods tax. The detection and recovery of passenger and goods tax was undoubtedly one of the duties entrusted to Passenger and Goods Tax Clerk II, but not the handling of applications for exemption. This was also made clear by Kashmir Singh who was an establishment clerk in the Excise and Taxation Office. Kashmir Singh stated that "the passenger and Goods Tax Clerk has no concern with the exemption cases and the same are dealt with by the Taxation Inspector" and he added that the release of attached property is also effected on the basis of the report of the Taxation Inspector and "the Passenger and Goods Tax Clerk has nothing to do with it". It would, therefore, be seen that the appellant was not in charge of applications for exemption which were dealt with by the Taxation inspector. It is true that so far as the detection and recovery of goods tax was concerned, it was within the charge of the appellant, but nothing remained to be done on that count at the material time when the bribe was demanded and paid, since the truck was already attached by Taxation Inspector Brar on July 12,1968. The only issue which was then being pressed by Jagdish Raj was that relating to exemption from payment of goods tax and so far as that issue was concerned, the appellant had nothing to do with it. There was, therefore, clearly no motivation for Jagdish Raj to give bribe to the appellant for obtaining grant of exemption. This circumstance weakens the foundation on which the edifice of the prosecution story rests and introduces an element of infirmity in it".
36. Usually, in a trap case there will be a demand and the person from whom gratification is demanded would lodge a complaint and based on the complaint case will be registered and trap will be laid. But, in this case there is no complaint that A.1 demanded any bribe from A.5. In Prevention of Corruption Act cases involving Section 7 and 13(2) read with 13(1)(d) of the P.C.,Act, once the acceptance of money is proved, then the court can raise a presumption under Section 20 of the P.C.Act, 1988 (which is similar to Section 4 of the earlier Act 1 of 1947). The presumption can be raised when the demand is proved. But in this case there is no allegation of any demand or there is any complaint of demand. The presumption which can be raised under Section 20 is a rebuttable presumption as held by the Hon'ble Supreme Court in various decisions considering the circumstances and purpose for which the accused is said to have received the money. The onus on the accused is not like the onus on the prosecution and it is only the preponderance of probability whether the explanation offered by the accused is probable. Whereas, the onus on the prosecution is to prove its case beyond reasonable doubts.
37. The Prevention of Corruption Act was intended to make effective provision for prevention of bribe and corruption rampant amongst the public servants. It is a social Legislation to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object as held in State of Madhya Pradesh Vs. Shri Ram Singh reported in 2000 Crl.LJ 1401 (SC). At the same time, we must bear in mind that conviction of the public servants on flimsy grounds leads to an economical death of the concerned person and convicted person will also lose his social status and will be put to shame in the public not only the public servant, his entire family will have such sufferings. Probably, that may be the reason why in 2005 SCC (Cri) 1424 (Ganga Kumar Srivastava Vs. State of Bihar) the Hon'ble Supreme Court has observed as follows:-
"20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government Officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid."
In this case, except the evidence of the trap team, no independent witness has been examined to prove the case of the prosecution regarding receipt of bribe.
38. In 1998 (2) L.W. 718 (Sundara Krishnan Vs. State, rep. By the Inspector of Police, V & AC, Cuddalore) this court observed as follows:-
"28. The law as laid down by various Judicial pronouncements requires independent corroboration from other than those belonging to the raiding party which includes the public witness also. The standard of proof and evidence required by law for both demand and acceptance is defined n the decided cases as given hereunder:-
"The act being ne of the important legislations of Criminal side, all allegations are required to be put to severe test of proof and all evidence led should be examined and weighed very carefully. Thus in a case (Ayyasawami V. State of T.N., (1992 Crl.L.J.608 SC) it was observed that to prove demand of bribe, independent evidence is required. Therefore, where there is no independent evidence and the evidence available does not prove the guilt against the accuse beyond reasonable doubts, conviction was considered to have been based on probability and was liable to be set aside. Also in (State of Madhya Pradesh Vs. Vishnu Prasad Babele 1991 Crl.L.J 1983) Same was in a case alleging offence of accepting illegal gratification. Witnesses forming part of raiding party were not found independent and hence it was held that evidence regarding handing over money to accused was not believable and therefore sanction was not sustained in "Som Prakash Vs. State of Punjab" (1992 Crl.L.J., 490 SC) Thus for trap cases under prevention of Corruption Act what has been held in the case Dharshan Lal Vs. Delhi Administration (1974 Crl.LJ 307 SC) still holds good. It was observed by the Apex Court that in cases under Prevention of Corruption Act, there should be independent and trustworthy corroboration of evidence of trap witnesses. In another judgment the same court observed that in cases under Prevention of Corruption Act, evidence of interest and partisan witnesses who are concerned in the success of trap must be trusted in the same way as that of any other interested witnesses. In proper case, court may look for independent corroboration before conviction of the accused person as held in Ram Prakash Arora Vs. State of Punjab (AIR 1972 SC 498)."
39. In the case on hand, we have to see whether the complaint against the appellants is probable or possible to occur as done in this case by the prosecution but whether the prosecution has proved its case beyond all reasonable doubts, with proper, valid voluminous and overwhelming evidence thus bringing home the guilt of the accused so as to dislodge the presumption of innocence on the part of the accused. Neither the prosecution has put up a strong case in proper manner as warranted by law, nor the same had been properly investigated into, nor proved, much less beyond reasonable doubts. The case of the prosecution suffers from infirmities, inconsistencies, laxities and lacunae so as to become unreliable for a conviction to sustain. In view of the infirmities and lacunae in the prosecution case, and the appellants having established in defence the probabilities of their contention that by a conspiracy hatched by A.2 and P.W.2 the false case has been foisted against them, the defence version is more probable to accept than the version of the prosecution.
40. In the result, all the Criminal Appeals shall stand allowed. The conviction and sentence passed by the Court of Principal Special Judge for CBI Cases, Madurai in C.C.No.5 of 2002, dated 5.10.2004 are hereby set aside. The fine amounts paid by the respective appellants shall be refunded to them. The bail bonds executed by them shall also be cancelled.
gkv Copy to:
1. The Prl.Special Judge, CBI Cases, Madurai.
2. The Deputy Superintendent of Police, SPE/CBI/ACB/Chennai