Madras High Court
Masilamani vs The State on 24 January, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/01/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.A(MD)No.619 of 2005 Masilamani ..Appellant/Accused Vs The State, by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Dindigul, Dindigul District, CrimeNo.3 of 2001 ..Respondent/Complainant Prayer Criminal Appeal filed under Section 374(2) of Cr.P.C. to call for the records in Spl.C.C.No.1 of 2003, on the file of the Chief Judicial Magistrate, Dindugul, set aside the conviction imposed on the appellant by the judgment dated 28.11.2005, and acquit the appellant . !For Petitioner ... Mr.S.Kanagarajan for M/s.F.Deepak ^For Respondent ... Mr.P.Kandasamy Govt.Advocate :JUDGMENT
The sole accused, who stood charged for offences punishable under Sections 7 and 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988, tried, found guilty as per the charge, convicted and sentenced by the learned Chief Judicial Magistrate, Dindigul(Special Judge under the Prevention of Corruption Act, 1988 to undergo six months simple imprisonment and to pay a fine of Rs.1000/- with a default sentence of two months simple imprisonment for the offence under Section 7 of the Prevention of Corruption Act and simple imprisonment for one year and a fine of Rs.1000/- with a default sentence of three months simple imprisonment for the offence under Section 13(1)(d) r/w Section 13(2) of the said Act, has come forward with the present appeal challenging the judgment of the above said trial court, dated 28.11.2005 both in respect of conviction and sentence.
2. The case of the prosecution in brief can be summarized as follows:
P.W.2-Deivanayagam Pillai applied for electric service connection to his house bearing D.No.4/123 in Chinnathampipatti village. When he approached the appellant/accused, who was then working as Junior Engineer(Operation and Maintenance) in the Tamil Nadu Electricity Board at Palayam, Dindigul District, the appellant/accused informed P.W.2 that he would make all arrangements for getting the service connection at an early date, for which he should be paid a sum of Rs.1000/- as gratification over and above the fees to be paid to the Electricity Board. Thereafter, on 13.11.2011, when P.W.2-Deivaganayagam Pillai met the appellant/accused in his office at Palayam, he was asked to pay a sum of Rs.20/- as registration fee for registering his application. P.W.2 paid the said amount and got the receipt for the same, a copy of which has been produced as Ex.P7. When P.W.2 was about to leave the office, the appellant/accused informed him that he could get the order for the service connection only if he would pay a sum of Rs.1000/- to the appellant/accused. P.w.2 replied that he would consider. Again on 15.11.2001, at about 10.00 A.M., when P.W.2 went to the office of the appellant/accused, the appellant/accused took P.W.2 to the office of the Assistant Divisional Engineer, Kujiliyamparai and he alone went into the office leaving P.W.2 to wait outside the office. The appellant/accused also got the receipt for the payment of registration fee from P.W.2 and took it inside the office of the Assistant Divisional Engineer. When he came out from the office of the Assistant Divisional Engineer, the appellant/accused informed that the work was over and demanded payment of Rs.1000/-, as per his earlier demand. P.W.2 expressed his inability to arrange for a sum of Rs.1000/- pursuant to which appellant/accused demanded payment of Rs.250/- on 20.11.2011 and payment of the balance amount of Rs.750/- at the time of effecting service connection. Unwilling to pay the said amount, P.W.2 went to the office of the Deputy Superintendent of Police, Vigilance and Anti-corruption, Dindugul on 19.11.2001 and lodged a complaint under Ex.P6. Along with the complaint, he also produced the xerox copy of the receipt for registration of his application for service connection. Based on the said complaint, Ex.P-28-First Information Report was prepared and a case in Crime No.3 of 2001 of the above said Vigilance and Anti- Corruption Department was registered. P.W.11-Rajkumar, the then Inspector of Police organized a trap team. On 20.11.2001, P.W.3-Shanmugavel, who was working as Superintendent in the office of the Tamil Nadu Water Supply and Sewerage Board, Dindugul, and one Marimuthu, the then Special Tahsildar were invited to the office of the Inspector of Police to be witnesses for the Entrustment Mahazar. P.W.2 had taken with him a sum of Rs.250/-(four number of Rs.50/- denomination notes and five number of Rs.10/- denomination notes). In the presence of P.Ws.2, 3 and the said Marimuthu, a demonstration was conducted as to how Phenopthalein test would be conducted. Phenopthalein powder was applied to the currency notes brought by P.W.2, marked as M.O.1 series and given back to P.W.2 with instructions to give it to the appellant/accused only if a demand was made. For the said demonstration and for the entrustment of the Phenopthalein coated currency notes, Ex.P9-Mahazar was prepared. Thereafter, P.W.11-the Inspector of Police along with police party P.W.2-the De-facto complainant, P.W.3-Shanmugavel who was instructed to be a shadow witness with instructions to accompany P.w.3 and note the happenings when P.W.3 would meet the appellant/accused in his office and Marimuthu, Special Tahsildar went to a place near the office of the appellant/accused. From there P.W.2 and 3 were asked to go into the office. The members of the police party were waiting outside, expecting the signal from P.W.2. to be given in a particular way, as per the pre-arrangement, in case,the appellant/accused accepted the bribe. When P.W.2 and P.W.3 entered the office of the appellant/accused, the appellant/accused was not found there. Hence, they came out and they were taken in the police jeep to the bus-stop. At 11.30 A.M., they again went to the office of the appellant/accused. At that point of time also the appellant accused was not found there, but one Baskaran, working in the said office, informed them that the accused/appellant had gone out and he would return within a short span of time. At about 12.30 P.M., the appellant/accused came there as a pillion rider in a TVS 50 vehicle and on seeing P.W.2, he asked him to come in. When P.W.2 along with P.W.3 entered the office room of the appellant/accused, he again demanded payment of Rs.250/- pursuant to which P.W.2 gave the phenopthalein coated currency notes to the value of Rs.250/- The appellant/accused received the said money and kept it in his shirt pocket. Immediately thereafter, P.W.2 along with P.W.3 came out and gave a signal which was followed by the entry of the police team into the office. Thereupon the appellant/accused was identified by P.W.2 to be the person to whom the bribe money was given. Phenopthalein test was conducted and both the hands of the appellant/accused tested positive. The shirt pocket of P.W.2 also tested positive for phenopthalein test. M.O.1 series was seized from the appellant accused by the police under cover of a Mahazar, marked as Ex.P13.
3. Thereafter, the investigation of the case was thereafter entrusted to P.W.13-Subash Chandra Bose, who conducted further investigation. M.Os 2 to 4- Bottles containing the solutions used for conducting Phenopthalein test, were sent to the Forensic Lab. They were examined by P.W.12.-Thiru.Thamarai Selvan, Scientific Assistant Grade-I and a certificate to the effect that the solutions contained sodium carbonate and phenopthalein was issued under Ex.P27. P.W.13- Investigating Officer completed investigation and addressed a communication to P.W.1-sanctioning authority, seeking sanction for prosecution of the appellant/accused for offences under Section 7 and 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988. P.W.1-Sivasubramaniam, the then Superintending Engineer, Tamil Nadu Electricity Board, Dindigul, after considering the materials, was satisfied with the necessity to accord and accorded sanction for prosecution under Ex.P1-Sanction order. Annexing the sanction order, the Investigating Officer(P.W.13) submitted the final report on the file of the Chief Judicial Magistrate, Dindugul(Special Judge under Prevention of Corruption Act,1988) for the offences punishable under the above said provisions of the said Act.
4. The learned Trial Judge took it on file as Special C.C.No.1 of 2003. On appearance, the appellant/accused was supplied with copies of the documents proposed to be relied on by the prosecution, and after receipt of the same, he pleaded innocence. Necessary charges were framed and the appellant/accused opted for a trial. In the trial, 13 witnesses were examined as P.W.1 to P.W.13 and 28 documents were marked as Ex.P1 to Ex.P28 on the side of the prosecution, in an attempt to prove the charges framed against the appellant/accused. Material objects M.Os. 1 to 5 were also produced. After completion of the evidence on the side of the prosecution, the incriminating materials found in the evidence adduced on the side of the prosecution were culled out and the appellant/accused was questioned under Section 313(1)(b) of Cr.P.C and thus an opportunity of explaining the incriminating materials was given the appellant/accused. The appellant/accused submitted that he did not demand any money as illegal gratification from P.W.2; that P.W.2's application was processed and forwarded to the Assistant Divisional Engineer on 13.11.2001 itself; that before 20.11.2001 sanction order was passed for effecting service connection; that on 20.11.2001, without there being any demand, P.W.2, suddenly entered the office room, thrust some currency notes into the pocket of the appellant/accused and walked out of the said room and that when the appellant/accused was calling out P.W.2 to take back the money, the police party entered his room and prepared documents, as if the appellant/accused received that amount as illegal gratification. It was also the further contention of the appellant /accused that P.W.2 was in the habit of writing complaints against the officers and demanding ransom and that in such an attempt P.W.2 would have chosen to act in the manner as indicated supra. Three witnesses were examined as defence witnesses and two documents were marked as Ex.D1 and Ex.D2 on the side of the accused.
5. The learned Trial Judge heard the arguments advanced on both sides, considered the evidence, and upon such consideration, came to the conclusion that all the charges framed against the appellant/accused stood proved beyond reasonable doubt, convicted him as per the charges and sentenced him as indicated above by the judgement of the trial court, dated 28.11.2005. Aggrieved by and challenging the same, in respect of conviction and as well as the sentence, the present appeal has been preferred on various grounds set out in the petition of appeal.
6. The point that arises for consideration is:- "whether the judgment of conviction and sentence pronounced by the trial court suffers from any defect or infirmity warranting interference in this appeal?"
7. Mr.S.Kanagarajan, learned Counsel representing the counsel for the appellant /accused, has argued that there are many improbabilities in the prosecution case which the trial court failed to appreciate; that there is no reliable evidence except the testimony of P.W.2, the de-facto complainant to prove the demand allegedly made on previous occasions, namely on 02.11.2001, 13.11.2001 and 15.11.2001. that there was inordinate delay in setting the criminal law in motion by lodging a complaint insofar as there was a delay of 17 days from the date of alleged first demand, 6 days from the date of the alleged second demand and four days from the date of alleged third demand; that the delay had not been properly explained; that the court below failed to consider the fact that on 13.11.2001 itself the appellant/accused prepared the estimate and submitted his report to the Assistant Divisional Engineer, based on which sanction order was passed on 19.11.2001 itself; that there are material contradictions in the testimonies of witnesses who spoke about the alleged receipt of bribe money by the appellant/accused; that the evidence of the shadow witness, namely P.W.3 does have an effect of demolishing the prosecution case insofar as he does not speak about the recovery of a further sum of Rs.300/- which was later on handed over to P.W.4; that the explanation offered by the appellant/accused in his statement admittedly recorded by P.W.13 was deliberately suppressed; that the court below failed to note that the entire trap operation was so dramatic and a stage managed show; that had the court below appreciated the evidence in proper prospective, would have arrived at a conclusion that the prosecution case was not proved beyond reasonable doubt and the appellant/accused would have been acquitted by the trial court.
8. The learned counsel for the appellant contended further that though the statement of the appellant/accused was referred to as one of the documents considered by the sanctioning authority-P.W.1, no such statement was produced along with the records to the court to show that in fact such a statement was considered by the Sanctioning Authority and that hence the sanction itself should be held as one accorded mechanically. It is also contended that though there is absence of evidence on the side of the prosecution as to how both hands of the accused tested positive for pheonopthalein test, the learned Trial Judge simply omitted to consider the same which resulted in a perverse finding holding the appellant/accused to be guilty of the offences with which he stood charged.
9. In support of his contention, the learned counsel for the appellant relied on two earlier judgments of this Court in (1)M.K.Shanmughasundaran .vs. the Inspector of Police, Vigilance and Anti-Corruption , Salem reported in 2007-1-L.W(Crl) 199; and (2)K.Sivanandam .vs. The state, represented by the Inspector of Police, Central Bureau of Investigation and Anti-Corruption Branch, Chennai-6, reported in (2007) 1 MLJ(Crl) 269 In the first of the judgments, relied on by the learned counsel for the appellant, a learned Single Judge of this Court has observed as follows:
" that in case of admission of receipt of money by the Government Servants where allegation of corruption is pleaded, when there is an explanation offered by the Government Servant, as to why the money was received by him, and if the explanation is probable and reasonable, then the accused has to be acquitted".
In the second of the judgment cited on behalf of the appellant/accused, prosecution case was doubted on the basis of the fact that both the hands of the accused tested positive for pheonpthalein, when the evidence was that he received the money with his right hand and immediately thereafter he was caught hold of by the police and that there was no evidence to show that the accused therein handled the money with his left hand.
10. It is the further contention of the learned counsel for the appellant that the amount said to have been received by the appellant/accused is a very small amount of Rs.250/- and considering the then status of the appellant/accused, the same would fall under Section 20(3) of the Prevention of Corruption Act, 1988 and that no inference of corruption could have been drawn simply because such a small amount of currency was found to be in the possession of the appellant/accused, for which also he offered an explanation which could not be discarded as totally untenable or improbable.
11. The learned Government Advocate(Crl.side) representing the State, in reply to the above said submissions made on behalf of the appellant/accused, would submit that all these discrepancies and contradictions are insignificant and trivial in nature, not capable of affecting prosecution case; that the court below, on proper appreciation of evidence and on correct interpretation and application of provisions of law, has arrived at the conclusion that the charges against the appellant/accused stood proved and that hence, the conviction as well as the sentence should be confirmed.
12. This Court paid its anxious considerations to the above said submissions made on both sides. Materials available on record were also perused.
13. The first and foremost point raised on behalf of the appellant is that there was no sufficient evidence to prove the alleged demand of illegal gratification by the appellant/accused. According to the prosecution case, the demand was made on 02.11.2001 at the first instance, then for the second time on 13.11.2001 and again for the third time on 15.11.2001. In this regard, as rightly contended by the learned counsel for the appellant, there is no evidence except the testimony of P.W.2- de-facto complainant. It is pertinent to note that even as per the admission of P.W.2, the application for service connection was made and the fee for registration of the application was also paid only on 13.11.2001 as evidenced by Ex.P5. When such is the case, the evidence of P.W.2 that he met the appellant/accused on 02.11.2001 and on that date itself, the appellant/accused demanded a sum of Rs.1000/- as illegal gratification for him for effecting service connection seems to be somewhat improbable. Estimate was prepared on 13.11.2001 itself by the appellant/accused and the same was sent to the Assistant Executive Engineer, Tamil Nadu Electricity Board, Kujiliyamparai. It is also pertinent to note that the sanction order passed by the Assistant Executive Engineer on 19.11.2001 itself. The same is evident from Ex.P20 and Ex.P21. Though P.W.2 would have stated that he paid a sum of Rs.20/- as registration fee for the registration of his application, he is not in a position to state whether his application was for getting new service connection or for getting a service connection shifting the old connection from one place to another place. Again, as pointed out by the learned counsel for the appellant, in case the appellant/accused had demanded payment of Rs.1000/- as illegal gratification on 02.11.2001 itself, and again on 13.11.2001, P.W.2 would have immediately gone to the police in the Vigilance and Anti-Corruption Wing and lodged a complaint if he was not prepared to pay any amount as bribe. He would not have waited till the order of sanction was passed and thereafter chosen to prefer a complaint leading to the laying of a trap. Of course, the same in isolation shall not be enough to suspect the case of the prosecution. But, as pointed out by the appellant/accused, the same gets importance when it is considered in conjunction with the other contradictions and suspicious circumstances.
14. First of all, after the sanction order for effecting service connection was passed and before service connection was effected, if at all the appellant/accused had demanded payment of a meagre sum of Rs.1000/- as illegal gratification for effecting service connection, he would not have asked for payment of the said amount in instalments, namely Rs.250/- as the first instalment and Rs.750/- as the second instalment. It should also be noticed that a vital contradiction is found in the evidence of P.W.2 regarding the date on which he was asked to pay the first instalment. As per the version if P.W.2, the demand was made by the appellant/accused lastly on 15.11.2001. While referring to the date on which he was directed to come with Rs.250/-, P.W.2 has stated "day after tomorrow" which shall refer to "17.11.2001". In Ex.P6- Complaint also, besides stating the date of last demand to be 15.11.2001, it has been stated that he was asked to bring Rs.250/- on the day after the succeeding day. However, in an explanatory note appearing thereafter, 20.11.2001 has been referred to as the date on which P.W.2 was asked by the appellant/accused to make payment of Rs.250/-. It is quite illogical because when you say "day after tomorrow" on 15.11.2001, it will refer to "17.11.2001"
and not "20.11.2001". As rightly pointed out by the learned counsel for the appellant, the same provides the first and foremost suspicious circumstance that goes against the prosecution theory.
15. The next suspicious circumstance relied on by the appellant is that though there is evidence in the form of testimonies of P.W.2 and P.W.3 to the effect that the appellant/accused received the phenopthalein coated currency notes using his right hand and straightaway put it into his left-side pocket of his shirt, none of the witnesses has spoken about the appellant/accused either counting the notes using both hands or changing the money from right hand to left hand before putting it in the shirt pocket. Though the Sodium Carbonate solutions allegedly used for testing the hands of the appellant/accused were found to contain phenopthalein as per the evidence of the P.W.12-Scientific Assistant, no explanation, much less acceptable explanation, has been offered by the prosecution as to how the left hand of the appellant/accused tested positive for phenopthalein test. When no such explanation is forthcoming from the prosecution, naturally any explanation offered by the appellant/accused, which is also probable, may be accepted. In this case, unfortunately, for the appellant, there is no explanation from him also as to how his left hand tested positive for phenopthalein test. On the other hand, the learned counsel for the appellant/accused has tried to demolish the reliability of the alleged trap operation itself. Hence, we have to necessarily consider the points raised on behalf of the appellant as to why the prosecution case regarding the trap should not be believed.
16. The witnesses examined to speak about the occurrence on 20.11.2001 in the office of the appellant/accused are P.Ws.2,3,4 and P.W.11. Out of the above said witnesses, P.W.11 was not a direct eye-witness for the alleged occurrence of demand and receipt of money on 20.11.2001, because even according to the prosecution version, he entered the office only after P.W.2 gave a signal that the appellant/accused received money. P.W.4 - Kasturi was a co-worker employed in the very same office. He has not supported the case of the prosecution as to the alleged demand and receipt of Rs.250/- by the appellant/accused on 20.11.2001. It is his simple version that she along with the appellant/accused went out and came back after 12.30 p.m.; that two other persons entered the office following the appellant/accused while he entered his room and occupied his chair and that thereafter, police came and informed that they had come from Vigilance and Anti-corruption Department and nobody should move from his/her seat. It is also his evidence that the police took a sum of Rs.300/- from the shirt pocket of the appellant/accused and gave it to him(PW4). The Mahazar for such entrustment of Rs.300/- with P.W.4 and the same mentioned in Ex.P13- Mahazar. The said amount, according to the testimony of P.W.4, was later on handed over by him to the relatives of the appellant/accused. He has not spoken about either the demand or receipt of money; not even about the Phenopthalein test conducted. He has also not spoken about the recovery of the phenopthalein coated money. Therefore the evidence of P.W.4 shall not be helpful to the prosecution to prove the case of demand and receipt of money by the appellant/accused. With regard to the actual demand and receipt of money by the appellant/accused, the direct evidence available are the testimonies of P.W.2 and P.W.3. P.W.2 is the decoy witness and P.W.3 is the shadow witness, who accompanied P.W.2 to the office of the appellant/accused to watch the happenings at the time of said visit of P.W.2. As rightly pointed out by the learned counsel for the appellant/accused, there are significant and material contradictions between the evidence of P.W.2 and P.W.3.
17. It is the evidence of P.W.2 that at about 11.30 A.M., P.W.2 and P.W.3 were dropped at the bus-stop near the office of the appellant/accused with necessary instructions as to how they should act. It is his further evidence that they came back after finding the seat of the appellant/accused to be vacant and again went inside the office at about 12.30 P.M. on seeing the appellant/accused arriving the office in a TVS 50 Vehicle with P.W.4/Kasthuri. P.W.2 and P.W.3/Shanmugavel alone entered the office of the appellant/accused. P.W.2 would state that the appellant/accused did not enquire about the shadow witness who accompanied P.W.2 to the office of the appellant/accused, before making the demand for payment and accepting the money as illegal gratification. P.W.3 also says that the accused did not ask who P.W.3-Shanmugavel was. P.W.3 in his testimony has also stated that no enquiry was made by the appellant/accused about the accompanying witness, namely, P.W.3.
18. P.W.2, in his evidence, would simply state that the appellant/accused asked P.W.2 whether he had brought the money as directed by him; that P.W.2 answered in the affirmative and gave the currency to the value of Rs.250/- coated with phenopthalein powder and that the appellant/ accused received it and kept it in his shirt pocket. He has not stated whether the appellant/accused used the right hand or the left hand or both the hands for handling the money before putting the same in his shirt pocket. On the other hand, P.W.3 has stated that the appellant/accused received Rs.250/- from P.W.2 using his right hand and kept it in the left side pocket of his shirt, implying that he did not use the left hand before placing it inside the shirt pocket. The evidence of P.W.2 is to the effect that after the appellant/accused received money from P.W.3,he asked P.W.2 to leave the office and come after two days. Nowhere, in their evidence P.W.2 and P.W.3 have stated that the appellant/accused used his left hand also either for counting or for handling the money. Their evidence is to the effect that immediately after coming out of the room of the appellant/accused, P.W.2 gave a signal and the police party entered the office. There is no evidence to show that the appellant/accused on seeing the police used his left hand to take the money from his pocket in an attempt to secret the same. Their evidence is to the effect that, on the arrival of the Police, the appellant/ accused, was seen perturbed and he was asked by the Inspector of Police to sit and that thereafter, without any gap phenopthalein test was conducted using Sodium Carbonate Solution separately for each hand of the appellant/accused. Of course, there is possibility of the appellant/accused having handled or touched the money coated with Phenopthalein powder in the interval between the moment P.W.2 and P.W.3 left his room and the moment the police party entered his room. But such a handling cannot be presumed unless the same is forthcoming from the prosecution in any form of evidence. The police ought to have given explanation as to how the left hand of the appellant/accused also tested positive for phenopthalein test.
19. As pointed out supra, at the outset, the same may look like a trivial contradiction caused by the omission on the part of the prosecution to give an explanation. But the same assumes importance in the light of the fact that the shadow witness accompanying P.W.2, namely P.W.3-Shanmugavel did not mention anything about any other amount recovered from the appellant/accused. In fact, at one point of time, P.W.3 stated that it was not correct to state that a total sum of Rs.550/- was seized from the appellant/accused. The same goes contra go the admitted case of the prosecution that another sum of Rs.300/- was also recovered and the same was handed over to P.W.4-Kasthuri since the appellant/accused was able to account for the same. The said aspect has not at all been touched by P.W.3 and on the other hand, he would assert that only a sum of Rs.250/- was recovered from the appellant/accused. The same will go to show that there is a reasonable suspicion as to whether a trap operation could have been conducted in the presence of P.W.3. When the shadow witness, who is said to have accompanied P.W.2 at the time of alleged trap has faulted, it shall be very difficult to accept the case of the prosecution to have been proved beyond reasonable doubt.
20. Yet another aspect is worth mentioning here. Admittedly, the appellant/accused was not the person whose work was to receive the applications for service connections or to pass sanction orders for effecting service connections. His only duty was to prepare the estimate and submit the estimation report for the orders of the Assistant Executive Engineer, which he had done on 13.11.2001 itself. The application registration fee was received by one Baskaran, who passed Ex.P5-receipt. It is somewhat improbable that the de- facto complaint/P.W.2 would have approached the appellant/ accused seeking help for effecting service connection for his use, even before the application was submitted.
21. It is also the evidence of P.W.2 that on 02.11.2001 and especially on 13.11.2001, the demand was made by the appellant/accused in the presence of the above said Baskaran. For the reasons best known to the prosecution, the said Baskaran was not even cited as a witness. No one employed in the office of the appellant/accused, barring P.W.4, was examined to speak about the occurrence as projected by the prosecution. Even P.W.4 has not supported the case of prosecution that the appellant/accused demanded and received money from P.W.2. Admittedly, along with the phenopthalein coated currency notes to the value of Rs.250/,-other currency notes to the value of Rs.300/- were also found in the possession of the appellant/accused and the said amount was handed over to P.W.4 after seizure of the same from the appellant/accused. Where from those currency notes were taken out has not been elaborated. If at all, the same were also kept in the left side shirt pocket of the appellant/accused, it is quite natural that those currency notes also would have tested positive for phenopthalein test. Absolutely, no evidence is forthcoming from the prosecution as to how the trap laying officer came to the conclusion that the said amount was accounted for. If at all, the same was accounted for, what made the Trap Laying Officer to seize it and hand it over to the P.W.4 has not been explained. Furthermore, in trap cases, it is incumbent on the Trap Laying Officer to ask for an explanation of the appellant/accused as to how his hands tested positive for phenopthalein test. Of course, in this case, there is an admission that the statement of the appellant/accused was obtained. But the same has been suppressed and the said statement was not submitted to the court along with the records.
22. The Investigating Officer-P.W.13 has also admitted that he recorded the statement of the appellant/accused and the same was also submitted along with the draft charge-sheet to P.W.1 for getting sanction for prosecution. The sanction order, namely Ex.P1 also refers to the statement of the appellant/accused as one of the documents perused by the Sanctioning authority to arrive at a subjective satisfaction that the sanction for prosecution should be accorded. The provision requiring prior sanction is a valuable right to protect the public servant from frivolous and unnecessary prosecution. Such a sanction is not a formality. It should be proved that the sanctioning authority applied his mind, arrive at a subjective satisfaction and then alone accorded sanction for prosecution. In this case, the very fact that the statement of the appellant/accused, which was also said to have been considered by the Sanctioning Authority, was not sent to the Court will give an impression that the sanction order was passed mechanically without proper application of mind.
23. Furthermore, besides the failure on the part of the prosecution to produce the statement of the appellant/accused containing his explanation as to how the phenopthalein coated currency notes were found with him, the appellant/accused has come forward with an explanation during his examination under Section 313(1)(b) Cr.P.C. The appellant/accused has stated that on 13.11.2001 itself he prepared the estimation on the application of P.W.2 and informed him that the sanction was not in his hands and he should go to the Assistant Director's office for the said purpose. It is his further statement that on the date of occurrence, namely, 20.11.2001, when he was preparing an estimate in respect of another application, P.W.2 came there and suddenly thrust the money into his pocket; that while he was calling him to take back the money, Deputy Superintendent of Police came out from the place of hiding and that he informed the Deputy Superintendent of Police about how the money came to be thrust into his pocket by P.W.2 to falsely implicate him in the case. When such an explanation has been offered by the appellant/accused, the court has to consider whether it is probable and whether the same creates at least a reasonable suspicion regarding the hypothesis propounded by the prosecution.
24. In the absence of any other explanation on the part of the prosecution as to how they were unable to separate Rs.250/- alone and come to the conclusion that another sum of Rs.300/- that was available with the appellant/accused was found to be his personal money, the explanation offered by the appellant/accused should have to be accepted to be probable or at least creating a reasonable doubt on the prosecution theory. Such a suspicion gets strengthened by the fact that P.W.3, the shadow witness who accompanied P.W.2, has given a negative answer to a suggestion that a total sum of Rs.550/- was available with the appellant/accused and the same was obtained from the appellant/accused and Rs.300/- out of the said amount was handed over to P.W.4. There are also other contradictions, which if viewed in isolation, may appear trivial. But they also assume importance in the light of contradictions pointed out in the foregoing discussions. They are:
(1) P.W.2-De-facto Complainant is not in a position to correctly state the designation of the appellant/accused. According to the prosecution case, he was working as Junior Engineer(Operation and Maintenance).But P.W.1 would refer him to be an Assistant Engineer in the complaint-Ex.P6. We may even construe such a discrepancy to be an ignorance in the absence of an explanatory note found in Ex.P6-complaint itself. While referring to the appellant/accused in the complaint, P.W.2 has stated the appellant/accused as Assistant Engineer Masilamani. After mentioning his designation as Assistant Engineer, he has also chosen to state in bracket as (AE). At several places, he has referred to his designation as AE in the complaint.
(2) To which office P.W.2 was taken by the appellant/accused on 15.11.2001 is in doubt. P.W.2 refers to the Office as the Office of the Assistant Divisional Engineer(ADE). But the sanction order for service connection came to be passed by the Assistant Executive Engineer. The letter enclosing estimate itself was addressed to the Assistant Executive Engineer and not to Assistant Divisional Engineer. Therefore, it is quite doubtful as to whether P.W.2 would have been taken to the office of any higher official on 15.11.2001 as spoken to by P.W.2.
25. The cumulative effect of the above said discrepancies and contradictions will lead to the only conclusion that the prosecution has miserably failed to prove the charges levelled against the appellant/accused beyond reasonable doubt that and the court below would have held that there were reasonable suspicions regarding the prosecution version and acquitted the appellant/accused of the charges with which he stood charged, had it properly appreciated the evidence and the above said aspects pointed by this Court. In the said circumstances, the evidence of D.W.1 and D.W.2 to the effect that P.W.2 was in the habit of writing complaints against the officers and bargaining with them and was also involving himself in Khatta-Panchayats, cannot be rejected altogether as unbelievable.
26. One more aspect also should be taken into consideration. For the status of a Junior Engineer, a sum of Rs.250/- is so trivial and, as rightly pointed out by the learned counsel for the appellant, the applicability of sub- clause (3) of Section 20 of the Prevention of Corruption Act, 1988 ought to have been applied and giving benefit of doubt to the appellant/accused ought to have been acquitted.
27. For all the reasons stated above, this Court comes to the conclusion that the judgment of the court below convicting the appellant/accused for the offences under sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 is defective, infirm and liable to be set aside and the appellant/accused is entitled to acquittal.
28. In fine, the appeal is allowed and the judgment of the trial court dated 28.11.2005 convicting the appellant/accused for offences under Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 in Special C.C.No.1 of 2003, on the file of the Court of Chief Judicial Magistrate(Special Judge under Prevention of Corruption Act,1988), Dindigul, is set aside and the appellant/accused is acquitted in respect of all the offences for which he was prosecuted. The fine amount paid, if any, shall be returned to the appellant/accused. The bail bond shall stand cancelled.
vsn To
1. The Chief Judicial Magistrate, Dindigul.
2. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Dindigul, Dindigul District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.