Madras High Court
Pandian vs State Rep on 23 October, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.10.2018
RESERVED ON : 04.10.2018
DELIVERED ON : 23.10.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A.(MD)No.257 of 2010
Pandian .. Appellant/Single Accused
Versus
State rep., by
Inspector of Police,
CBI, ACB,
Chennai .. Respondent/ Complainant
Prayer: Criminal Appeal filed under Section 374 of Criminal Procedure Code to
call for the records in C.C.No.8 of 2008 dated 21.07.2010 on the file of the
Principal Special Judge. CBI cases, Madurai and set aside the judgment.
!For Appellant : Mr.A.Ramesh,
Senior Counsel for
Mr.N.Mohideen Baskar
^For Respondent : Mr.N.Nagendran(for CBI Cases)
Special Public Prosecutor
:JUDGEMENT
The appellant/sole accused D.Pandian a public servant working as Assistant Provident Fund Commisssioner (A.P.F.C.,) in Sub-Regional Office of Provident Fund, Trichy since October 2005. M/s.Arasu Auto is a Partnership Firm functioning at Tanjore having branches at various towns in and around Tanjore. They were also carrying on other businesses like Jewellery, Cinema Theatre, Educational Industries, etc.
2. The Management of M/s.Arasu Auto came under the scanner of Provident Fund Department for understating its employees strength and evasion of Provident Fund (PF) contribution. On 01/08/2007, the then Regional Provident Fund Commissioner Mr.Brahma Nair along with the Enforcement Officers Mr. Shanmugavel and Mr. Kanagu inspected the premises of M/s.Arasu Auto at Tanjore and they sought for details about the employees. At the request of its partner Mr.Murugan/ PW.6, time was given for them to furnish the list of employees and to get their names enlisted under the PF scheme.
3. Pursuant to the inspection, Sri Lakshmi Theatre, Kumbakonam owned by one of the partners of M/s.Arasu Auto was attached for non-payment of PF due of Rs.21,849.50/-. Mr. Senthil Kumar, Managing Partner of Arasu Jewellery, Kumbakonam was prosecuted for violation of PF Act and he pleaded guilty and paid fine of Rs.3,000/- in STC No.2763/2007 on 14/12/2007 on the file of the Judicial Magistrate Court, Kumbakonam. For the period covering January 2007 to January 2008, a sum of Rs.7,50,000/- was recovered from M/s.Arasu Auto. ( Rs.1,00,000/- as on 15/12/2007 and Rs.6,50,000/- as on 20/02/2008).
4. On 11/03/2008, R.Suresh Kumar, Accounts Manager of M/s.Arasu Autos, Thanjore gave a written complaint to the Superintendent of Police, CBI/ ACB Chennai alleging demand of illegal gratification of Rs.4,00,000/- (Rupees Four lakhs only) by Pandian,A.P.F.C., the appellant/accused herein. According to the complaint, the accused Pandian, pursuant to the inspection issued show cause notice to M/s.Arasu Auto alleging non-enrollment of eligible employees in the Employee Provident Fund(EPF) Scheme. He asked to pay the EPF dues for the current year and the dues relating to previous years can be looked later. As advised by him, the said firm remitted the EPF dues for the year 2007-08. Thereafter, when he met Pandian at his office on 10/03/2008, he informed that based on the dues paid for the year 2007-08, they are liable to pay further sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) for the previous years as arrears and penalty. To waive the previous dues, he demanded, Rs.4,00,000/- (Rupees Four Lakhs) as bribe or else he will initiate further legal proceedings to recover the EPF dues with penalty.
5. The complaint of R.Suresh kumar(PW.1) was registered after making discreet enquiry about the credentials of the complainant as well as the accused by Thiru.Anandakrishnan, Inspector of Police, CBI. Two independent witnesses namely R.Mohanraj, Officer, Canara Bank, Tiruchy and Mr.D.Herbert, Assitant Administrative Officer, L.I.C., Tiruchy were called to Saratha Lodge, Tiruchy. In their presence and others, the significance of phenolpthalein ? sodium corbonate test was demostrated. The currency numbers were noted and it was smeared with phenolpthalein powder. The tainted currency notes of Rs.4,00,000/- were kept in the office bag of R.Suresh Kumar, PW.1 (de facto complainant). Entrustment mahazar detailing out the event was drawn and all the witnesses signed in it. The de facto complainant was instructed not to touch the currency notes unless the accused Pandian demands bribe. The trap team along with the de facto complainant proceeded to the PF Office at Madurai Road, Tiruchy. The de facto complainant was instructed to give signal to the trap team, if the accused receive the money.
6. At about 12.40 hrs, the trap team reached PF office. R.Suresh kumar, PW.1/ de facto complainanant, Sekar, an employee of M/s.Arasu Auto and the independent witness Mohan Raj went to the accused office to meet the accused. The accused asked the complainant whether he had brought the bribe money. The de facto complainant said 'yes'. The accused asked to show the money. Accordingly, the de facto complainant opened the bag and showed four bundles of Rs.1,000/- x 100 notes. On seeing the new currency notes, the accused asked them to arrange for old currency notes and told them to come after lunch with old currency notes. Therefore, the trap team returned back to Saradha Lodge. After lunch, they all re-assembled at Saradha lodge by 14.15 hrs. Before leaving to the trap spot, at about 14.40 hrs TLO directed the de facto complainant to contact the accused and inform him that old currency notes could not be arranged. The accused who answered on the receiving end, told to come with new currency notes. The conversation was heard through speaker in the phone by the members of the trap team.
7. The trap team reached the PF office at about 15.25 hrs. R.Suresh kumar/PW.1, Sekar and Mohanraj/P/W/5went to the office of the accused. While Mohanraj remained outside the cabin, Suresh kumar and Sekar went to the cabin of the accused. When accused Pandian demanded money, PW.1 took out the tainted money from his bag and gave it to the accused. After receiving the money, the accused handled it with both his hands and kept the money in his right hand side table drawer.
8. Thiru. Ananthakrishnan, trap laying officer and his team, on receipt of the pre-arranged signal, entered the cabin of the accused. After confirming from Suresh kumar, Sekar and Mohanraj that the accused received the money TLO, introducing him to the accused, asked the accused to dip his fingers in the sodium corbonate solution prepared by R.B.Pillai, Constable. On dipping, both the left and right hand fingers, the hand wash of the colourless solution turned pink, indicating the presence of phenolpthalien. Thereafter, when enqired whether he received money from PW.1, the accused murmured that he demanded and accepted Rs.4,00,000/- as bribe as told by Mr.Bramanair, Regional Provident Fund Commissioner. However, Bramanair denied it when he was confronted. Documents relevant for the case were recovered from the possession of the accused under mahazar including the tainted money and the draft notes prepared by accused to drop the proceedings on receiving the bribe.
9. The sample solution drawn, from the hand wash of the accused was sent to chemical analysis. The report confirmed that the solution contained sodium corbonate and phenolpthalein. Having prima facie found that the accused has received Rs.4,00,000/- as reward not to proceed against M/s.Arasu Autos for its omission to pay PF for the period prior to 2007-08, sanction to prosecute the accused was obtained from the Central Provident Fund Commissioner, who is the competent authority to remove officers of the rank of Assistant Provident Fund Commissioner.
10. The trial Court framed charges under section 7 and 13 (2) r/w 13(1)
(d) of the Prevention of Corruption(PC) Act and tried the accused. To prove the charges, prosecution has examined 14 witnesses. 54 exhibits and 3 material objects were marked in support of the prosecution. In defence side, 9 exhibits were marked.
11. The testimony of the de facto complainant, T.L.O., Ananthakrishnan and the shadow witness, besides Ex P-5/ the draft notes prepared by the accused after receipt of the bribe and the chemical analysis report were all considered by the trial court to hold the accused guilty and convict him for offence under section 7 and 13(2) r/w 13(1)(d) of PC Act.
12. The defence version that the de facto complainant's employer had ulterior motive to fix the accused and hence, trapped him illegally for taking action against M/s.Arasu Auto for its EPF violation and the documents relied by the accused to show that he has taken action against M/s.Arasu Auto and its sister concern Arasu Jewellery were found not adequate to rebut the presumption under section 20 of the Prevention of Corruption Act.
13. Aggreived by the conviction and sentence passed by the learned Principal Special Judge, for CBI cases, Madurai in C.C.No.8 of 2008, dated 21.07.2010, the present Criminal Appeal is preferred by the accused.
14.The learned senior counsel appearing for the appellant through the meticulously prepared comparative chart regarding the contradictions found in the deposition of PW-1 (de facto complainant), PW-5 (shadow witness), and PW- 12 (trap laying officer) and the relevant exhibits Ex P-2 ( entrustment mahazar), Ex P-3 (mahazar before the second visit to the trap spot) and Ex P-4 (recovery mahazar) submitted that, the proseuction case suffers inherit defects throughout starting from the malfide of the complainant, lack of necessity to demand Rs.4,00,000/- bribe while the previous years due itself will be only little more than Rs.4,00,000/- lakhs. (according to Ex D-
9), inconsistency between the prosecution witnesses, the manner in which the phenolphthalein was smeared on the currency notes, mode of transport from Saradha Lodge (place of pre-trap procedure) to EPF office ( trap spot ) and back to Saradha lodge.
15. The learned senior counsel also pointing out the contradictions among the prosecution witnesses regarding the location of the trap spot would contend that since they were really present during the alleged trap, they are not sure whether the office of the accused located in the second floor or third floor of the building, and this contradiction makes the trap proceeding doubtful.
16. The learned senior counsel for the appellant submitted that the prosecution witnesses were not even consistent regarding the recovery of the tainted money. While PW-1 say when T.L.O., asked the accused to produce the money, the accused took out the tainted money from his drawer and gave it to the T.L.O. Contrarily, P.W-5 says, T.L.O., asked him to open the drawer. He opened the drawer and took out the bribe money of Rs.4,00,000/- lakhs from the bag kept in the drawer.
17. It is also contended by the learned counsel that the office bag in which the tainted money was kept at the time of preparing entrustment mahazar not produced. Whereas, PW-5 stated that he opened the drawer as per the instruction of PW-12 ( TLO) and found currency inside the bag. While PW-12 deposed that the currency and bag were kept separately and found inside the drawer. The de facto complainant contrary to his chief examination, in the cross examination had deposed that he did not take out the currency notes from the bag. He gave the bag with the currency notes to the accused when he demanded money.
18. Besides pointing out the contradictions in the prosecution case, the learned counsel also submitted that the defence version of the case has been completely disbelieved by the trial court when the accused through Ex D-1 to D-9 had probablised the likelihood of malicious prosecution at the behest of disgrundled violator of the PF Act.
19. Per contra, the learned counsel for the respondent, submitted that, the accused has admitted his meeting of PW-2 on the day of trap. He has admitted before the Trap Laying Officer that he received the money as told by the Commissioner. P.W.5 has deposed about demand and recovery. The hand wash of the accused answered positive for the presence of phenolpthalein. Thus, the demand of bribe is proved by the prosecution through PW-2 and PW-5. The defence version that he took action against the de facto complainant firm, so he has given false complaint, does not carry merit because he had conciously took action only for the current year and started bargaining with the de facto complainant that he will not pursue further if he is bribed. Ex P-5 which was written by the accused after receipt of the money prove the guilt of the accused. After getting bribe, the accused has attempted to make a note as if the enforcement officer has reported that M/s.Arasu Autos had paid all their dues and therefore, action against them may be dropped. While on fact, the concern Enforcement Officer has not forwarded any report till the date of trap.
20. Therefore, the learned Special Public Prosecutor, for CBI cases, contended that there is no merit in the Appeal to entertain, hence should be dismissed.
21. Point for consideration:
The version of the defence whether sifficiently discharge the reverse burden?
PW.8 / Mr.M.Bramanair, Commissioner, Provident Fund Officer, Tiruchirapalli has deposed that he received an information over phone from one of the employee of M/s.Arasu Autos that there is gross violation in contributing the Provident Fund by the Management of M/s.Arasu Auto. Therefore, he informed the Enforcement officer Thiru.Shanmugam at Tanjore and told him to convey Pandian (Accused) about the information received from the employee of M/s.Arasu Auto and take necessary action.
22. On 01.08.2007, when PW.8 went to Thanjore, Mr.Shanmugavel, Enforcement Officer told him that the Management of Arasu Autos are not cooperating for the enquiry and he is unable to take further action. Therefore, PW.8 along with Shanmugavel and Kanagu went to the premises of M/s.Arasu Autos. P.W.6, Murugan, Managing partner of M/s.Arasu Autos was reluctant to share information and to give documents. Murugan assured to give the documents, the next day through Mr.Shanmugavel, Enforcement Officer but did not furnish the full details. Out of 81 employees, only for 15 employees, Provident Fund contribution was deducted by M/s.Arasu Autos. The accused/appellant herein, who is the Assistant Provident Fund Officer was pursuing the matter and has taken action against the management of M/s.Arasu Autos.
23. The further deposition of PW.8 is that on 11.03.2008 when Pandian, accused/appellant herein informed that the representatives of M/s.Arasu Autos have came to meet him. He initially he refused to see them. Then, Pandian informed him that after initiating enquiry under Section 7(A) of Provident Fund Act, they have enrolled all their employees. Therefore, they want to meet him for courtesy sake. Hence, he entertained the representatives of M/s.Arasu Autos into his cabin. They assured him that they have enrolled all their employees in the scheme and also have come to pay sum of Rs.5,000/- (Rupees Five Thousand only) towards the contribution. They also assured that hereinafter there will be no lapse on their part.
24. P.W.8 in his deposition has also stated about the enquiry made by the trap laying officer with him regarding the money received by Pandian from the representatives of M/s.Arasu Autos. He has stated that when the Trap Laying Officer asked whether he had instructed Pandian to receive any money, he answered in negative.
25. P.W.6 Murugan, who is one of the partner of M/s.Arasu Autos had deposed that Mr.Suresh Kumar, PW.1 is the Accounts Manager of M/s.Arasu Autos. He along with Sekar, Sales Manager used to deal with the Government Department including Provident Fund office. He admits that P.W.8 along with Shanmugavel and Kanagu came to his establishment and inspected the records. He also admits that for the period between 01.01.2007 and 31.01.2008, he has paid a total sum of Rs.7,50,000/- (Rupees Seven Lakhs and Fifty Thousand only) towards PF contribution.
26. In the cross examination, the attachment ordered in respect of Sri Lakshmi Theatre for the non-payment of PF dues and the fine paid in the Magistrate Court for non-payment of PF in respect of Arasu Jewellery is admitted by P.W.6. The documents Ex.B6,Ex.B.7 and Ex.B.8 in respect of those action have been emanated from Pandian, the accused herein. This is also admitted by the witnesses. In the light of this admission and the other attending circumstances, the learned counsel for the appellant strongly argued that the action taken by the accused against M/S.Arasu Autos has provoked Murugan to lodge compliant through his employee R.Suresh Kumar and in connivance with CBI officials, the accused herein has been fixed in a make belief trap. The sequence of action taken by the accused, pursuant to the failure of M/s.Arasu Autos in complying the provision of Employee Provident Fund Act also listed out by the learned counsel appearing for the appellant.
27. There is no doubt in the mind of this Court that the appellant herein, was conducting 7(A) enquiry against the management of M/s.Arasu Autos and pursuant to the said enquiry, one of its concern Laksmi Theatre, run by the partners of M/s.Arasu Autos has been attached for payment of PF dues. One of the partners Murugan has been prosecuted. He has pleaded guilty and paid fine and a sum of Rs.7,50,000/- collected as PF contribution. Nevertheless, the case of the prosecution is that the accused herein, while proceeding with his enquiry for non-payment of PF contribution for the period 01.01.2007 to 31.07.2008 and having collected sum of Rs.7,50,000/- from M/s.Arasu Autos towards the contribution of PF due for the current year had collected enough materials to prove nearly 174 employees are engaged by M/s.Arasu Autos in various branches of their firm, they are all eligible for PF but for years together had failed to pay the requisite contribution and disclose the employment of those employees. For non-enrollment of eligible employees, both the accused as well as representatives of M/s.Arasu Autos were aware that they are liable to pay huge contribution as well as heavy penalty under the PF act. In the said circumstances, the accused herein has pointed out the liability towards contribution and has intimidated them that it will come around Rs.50,00,000/- (Rupees Fifty Lakhs only), so to give a quietus to the issue, he should be paid Rs.4,00,000/-. Therefore, the action taken by the accused against M/s.Arasu Autos cannot be a shield for him to say that the complaint given by R.Suresh kumar is a false complaint.
28. Regarding the demand and acceptance, of Rs.4,00,000/- much emphasize has been made on the contradiction regarding the place of trap. Whether the office of the accused located in the second floor or third floor of the building pales its significance, since the accused and other staff at EPF office admit the visit of P.W.2 and Sekar, on the day of trap and meeting the accused as well as P.W.8 during the relevant time.
29. It is also contended by the learned counsel appearing for the appellant that the bag in which the tainted currencies were kept were not seized and the presence of the bag in the drawer alongwith the currency note is not consistently spoken by the witnesses. According to the him, the contradiction between PW.1, PW5 and PW.12 regarding the bag in which the tainted money was placed during the preparation of entrustment mahazar, will cut the very root of the prosecution case.
30. The evidence let in by the prosecution through the eye witnesses and mahazar prepared at the time of recovery, proves that the tainted currency proves that 4 bundles of 1000 rupees note each containing 100 numbers were recovered from the second drawer of the accused table. The numbers found in the currency notes tally with the numbers entered in the entrustment mahazar. The phenolphthalein test corroborates the evidence of PW.2 that the accused received the money on demand. Therefore, the minor variations does not dislodge the proven facts pointing the guilt of the accused.
31. The specific case of the prosecution is that the accused went to the room of P.W.8 along with PW.1 and Sekar. They had conversation for some time and left the room of P.W.8 and thereafter, the accused received the money and kept it in the second drawer. It is also the case of the prosecution that when the decoy witness met the accused earlier and showed new currencies, he insisted for old currencies. Therefore, they left the office and returned after lunch. In between, P.W.1 called the accused and informed him that he is unable to arrange old currencies in exchange of new currencies, for which the accused has told him 'Never matter. Let him bring the new currencies itself'. This conversation has been heard by the witnesses through the speaker phone. The call details also indicate that a call has emanated from P.W.1's phone to the accused phone at 14:30 hrs.
32. When the appellant was confronted with this incriminating piece of evidence in Section 313 questing ,while he admits the call he made to R.Suresh Kumar, P.W.1 at 13:37 hrs, he denies the call he received from R.Suresh Kumar within one hour from that call. Ex.P41/call details contained both the incoming call as well as the out going calls between the accused and the de facto complainant. This piece of evidence in isolation does not carry much relevancy but to prove the fact that, on 11.03.2008 after P.W.1 met the accused at his office there was telephonic conversation between them and later Ex.P5/draft note to drop proceedings has been prepared by the accused leads credence to the prosecution case, that on receipt of bribe as regard, to favour the accused, he has prepared notes to drop proceedings.
33. The hand writing experts who have examined and compared the writings in Ex.P5 have opined that it is the writing of the accused and has positively held that the draft notes marked as Ex.P.5 was written by the accused. The reading of Ex.P5 clearly shows that the accused has decided to recommend for dropping all the proceedings against M/s.Arasu Autos for which he has referred the compliance report of the Enforcement Officer, Tanjore. From the records and evidence, on the day of trap, the Enforcement Officer of Tanjore has not forwarded any compliance report favouring M/s.Arasu Autos.
34. N.Senthil, Entrustment Officer who is dealing with the file has categorically deposed that he has not filed any final report on the day of trap, he had not completed the investigation.
35. In Ex.P21, notice issued to M/s.Arasu Autos, Thanjavur by the Provident Fund Organization which is dated as 07.05.2007, it is clear that the investigation of non-enrollment of employees was for the period between February 2003 to April 2007. While enquiring pursuant to these notices, the appellant herein after collecting Rs.7,50,000/- for the period 2007-2008 had indulged in bargaining with M/s.Arasu Autos to draw proceedings for the years prior to 2007. Therefore, neither the explanation nor the plea raised by the appellant regarding the place or manner in which the money recovered does not carry any merit for consideration.
36. For the above said reasons, this Court considers that there is no ground to interfere in the findings of the trial Court holding the accused guilty under Section 7 and 13 (2) r/w 13(1) (d) of the Prevention of Corruption(PC) Act.
37. Before partying, this Court forced to place on record that when the accused was apprehended, he has murmered that the money was received on the direction of PW.8, Commissioner, Provident Fund. PW.8 admits that before the accused received the trap money, he met the accused and de facto complainant in his chamber (just before the trap). Though he has deposed that initially he refused to meet PW.1, later allowed him to meet him. He say when the TLO enquired him whether the trap money was received by the accused for himself and on behalf of PW.8 , he denied it. The information given by the accused and the explanation of PW.8 to drop action under PF Act, while the accused has to prepare notes, PW.5 has to pass order does not meet eye to eye. Some Investigation Officers ought to have probed into this matter still further. The failure of the investigation officer in this regard has given a handle to the accused herein to take a plea that the money recovered from him was not bribe money.
38. In any event, the facts proven through prosecution evidence suffice to hold this appellant guilty for receiving illegal gratification. Other than legal remuneration as reward to do favour for M/s.Arasu Autos by not pursuing enquiry about their failure to contribute for the PF dues prior to 2007.
39. In the result,
(i) The Criminal Appeal is dimissed;
(ii) The judgment made in C.C.No.8 of 2008 dated 21.07.2010 on the file of the Principal Special Judge, CBI cases, Madurai is confirmed and
(iii) The trial Court is directed to secure the accused and commit him to prison to undergo the remaining period of sentence.
To
1) The Principal Special Judge, CBI cases, Madurai
2) The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.