Madras High Court
Manoj Kumar Nair vs State Through on 6 September, 2018
Equivalent citations: AIRONLINE 2018 MAD 1059
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.09.2018
RESERVED ON : 27.08.2018
DELIVERED ON : 06.09.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.65 of 2007
and
Crl.M.P(MD)No.3002 of 2018
Manoj Kumar Nair : Appellant/
Accused
Vs.
State through
The Inspector of Police,
SPE/CBI/ACB/Chennai,
in RC.33A/2003. : Respondent/
Complainant
PRAYER: Appeal is filed under Section 378 of the Code of Criminal Procedure,
against the Judgment and sentence dated 10.01.2007 passed in C.C.No.5 of 2004
by the learned Special Judge for CBI Cases, Madurai.
!For Appellant : Mr.V.Gopinath
Senior counsel for Mr.S.Bala Karthik
^For Respondent : Mr.N.Nagendran,
Additional Public Prosecutor for CBI Cases.
:JUDGMENT
The conviction and sentence dated 10.01.2007 passed in C.C.No.5 of 2004 by the learned Special Judge for CBI Cases, Madurai are being challenged in the present Criminal Appeal.
2.The appellant herein is the sole accused in C.C.No.5 of 2004 on the file of the learned Special Judge for CBI Cases, Madurai. He was prosecuted for offence under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as 'P.C. Act'], for receiving Rs.10,000/- as illegal gratification from one R.S.Raghupathy, Managing Director, Srinivasa Mini Bus Transport Company, Nagercoil, to process his application to get his company enrolled under the Employees Provident Fund [hereinafter referred to as 'E.P.F.'] Scheme, thereby committed offence of obtaining illegal gratification as reward of motive on 23.07.2003 and for obtaining for means by corrupt or illegal means a pecuniary advantage of Rs.10,000/- abusing his position as a public servant, namely, Enforcement Officer of E.P.F. Organization.
3.The case of the prosecution:
(i)The accused, Manoj Kumar Nair, Enforcement Officer, E.P.F. Office at Nagercoil, during the relevant point of time, demanded Rs.10,000/- from R.S.Raghupathy (P.W.6), when he approached the accused to voluntarily join E.P.F. Scheme. The application form along with the demand draft for the said purpose was submitted by P.W.6 to the accused on 30.06.2003. The accused informed P.W.6 to meet him after one week. Accordingly, on 07.07.2003, when P.W.6 met the accused at his office, he demanded bribe of Rs.10,000/- to process the papers and sent them to Delhi for allotment of E.P.F. Code.
Since, it was a voluntary enrolment, P.W.6, did not show any interest to get the firm enrolled under the scheme by giving bribe. However, the accused called him over phone on 22.07.2003 and told him that he will be going to Tirunelveli office the next day. So, he should meet him on 22.07.2003, between 09.00 a.m. to 09.30 a.m. along with the Manager of Periya Nadar Mini Bus Transport Company, who has submitted application similar to that of P.W.6 and pay the bribe amount of Rs.10,000/-. Unwilling to pay the bribe, P.W.6 called C.B.I. Officer, Chennai and reported about the illegal demand made by the accused. He was instructed to meet Mr.Ananthakrishnan, Inspector of Police, C.B.I. on 23.07.2003 at Travellers Bungalow, Nagercoil. Accordingly, P.W.6 along with P.W.9 (Chockalingam), the manager of Periya Nadar Mini Bus Transport Company, met T.P.Ananthakrishnan (P.W.8) at Travellers Bungalow, Nagercoil. He gave the complaint, narrating the demand made by the accused. The said complaint, Ex.P.24 was perused, satisfied to its genuinity, P.W.8, proceeded with trap process. In the presence of independent witnesses, namely, Chellapandi (P.W.7) and others, phenolphthalein sodium carbonate test was demonstrated. The bribe money of Rs.10,000/- was smeared with phenolphthalein, kept in a pink colour cover and entrusted to P.W.6, the de facto complainant, after recording the serial number of the currency in the entrustment mahazer. The entrustment mahazar (Ex.P.25) was prepared in the presence of the de facto complainant, Raghupathy, Chockalingam (P.W.9), manager of Periya Nadar Mini Bus Transport Company and Chellapandi (P.W.7), independent witness.
(ii)After completion of entrustment at about 09.30 hours on 23.07.2003, the de facto complainant along with the shadow witness, Chellapandi went in a motor cycle to the E.P.F. Office, Nagercoil from the Travellers Bungalow. The trap team, consisting the trap laying officer, Ananthakrishnan (P.W.6), C.S.Mony, Inspector of Police, C.B.I., Radhakrishnan, Constable, C.B.I. and Chockalingam, manager of Periya Nadar Mini Bus Transport Company, followed them in an autorickshaw and reached the E.P.F. Office at about 09.40 hours. The accused was at the entrance of the E.P.F. Office at second floor expecting the de facto complainant (P.W.6). The accused was carrying a brown colour cover in his hand. The accused demanded and received bribe money of Rs.10,000/- from P.W.6 and kept it in the cover, which he was having in his hand. Thereafter, he went to his seat along with P.W.6. Chellapandi (P.W.7) followed them. At about 09.50 hours, P.W.7 gave the prearranged signal of wiping his face thrice with hand kerchief. On receipt of the signal, the trap team led by Ananthakrishnan entered the cabin of the accused and recovered the bribe money kept inside the cover found on his table. The accused was arrested. After obtaining sanction to prosecute him from P.W.1, who is the person competent to remove the accused from service, final report was filed.
(iii)Case of the defence:
The defence of the accused is that he did not receive any application from P.W.6 or P.W.9 on 30.06.2003 and he never met P.W.6 or P.W.9 on 07.07.2003 at Nagercoil office. At that time, he was at Tirunelveli to get his duty roster for the ensuing fifteen days. He neither called the mother of P.W.6 nor P.W.6 over phone on 22.07.2003 and he never demanded any bribe for processing the application of Srinivasa Mini Bus Transport Company or Periya Nadar Mini Bus Transport Company neither on 07.07.2003 nor on 22.07.2003. On 23.07.2003, when he was about to leave the office for field duty, P.W.6 along with some persons came to the office and forced him to touch the cover and took him to Travellers Bungalow. The case was foisted against him at the instigation of one auditor, since he has taken action against Vidhya Jothi Matriculation School, Marthandam. The duty roster for 08.07.2003 to 22.07.2003, which was received by the accused on 07.07.2003, is marked as Ex.D.1. The copy of the criminal complaint lodged against Vidhya Jothi Matriculation School, is marked as Ex.D.3. Ex.D.4 to Ex.D.7 are records pertaining to the action taken against Vidhya Jothi Matriculation School. To disprove that P.W.6, P.W.7 and P.W.9 would not have been on the scene of trap on 23.07.2003, in the manner in which they have deposed, the photographs of the building and the staircase where E.P.F. Office is located, are marked as Ex.D.8 and Ex.D.9. Two witnesses on behalf of the defence were examined.
(iv)Finding of the Trial Court:
The Court below relying upon the evidence of P.W.6, who has identified his application, the demand draft submitted by him along with the application and spoken about the demand made by the accused on 07.07.2003 and 22.07.2003, which has been corroborated by P.W.9, Chockalaingam, who has also submitted his application and demand draft for enrolment in E.P.F. scheme along with P.W.6, coupled with the fact of recovery of the tainted money from the possession of the accused, has held the accused guilty for the offence under Section 7 of P.C. Act, drawing presumption under Section 20, since the prosecution has proved demand, acceptance and recovery of the tainted money and sentenced him to undergo 2 years rigorous imprisonment and to pay fine of Rs.5,000/-, in default, to undergo 6 months rigorous imprisonment under Section 7 of P.C. Act and also sentenced him to undergo 2 years rigorous imprisonment and to pay fine of Rs.5,000/-, in default, to undergo 6 months rigorous imprisonment under Section 13(1)(d) read with 13(2) of P.C. Act. However, the Court below ordered the period of sentence to run concurrently.
4.Grounds of appeal:
The learned senior counsel appearing for the appellant would submit that the Trial Court has miserably failed to appreciate the evidence of the prosecution as well as the evidence let in by the defence in proper perspective. While there is infirmity and inconsistency in the case of the prosecution regarding the very submission of application by P.W.6 on 30.06.2003 and demand of bribe over phone on 07.07.2003, the Trial Court has erroneously held that the demand of illegal gratification has been proved by the prosecution. Even on the day of trap, the evidence of P.W.6, P.W.7 and P.W.9, does not corroborate with each other in respect of the illegal demand alleged to have been made by the accused. The pink colour cover in which the tainted money was kept and entrusted to P.W.6, as per the entrustment mahazar (Ex.P.25), had not seen the light of the day.
5.Regarding the recovery of tainted money, the learned senior counsel appearing for the appellant would submit that admittedly, the prosecution witnesses for the recovery, had deposed that the phenolphthalein test of the hands of the accused was conducted after the trap laying officer instructed the accused to touch the tainted currency kept inside the brown cover. The brown colour cover was lying on the table of the accused. Apart from the currency, the brown colour cover had the applications of M/s.Srinivasa Mini Bus Transport Company, Nagercoil and its enclosures as well as the application of Periya Nadar Mini Bus Transport Company and enclosures. Except the demand drafts, which were drawn on 30.06.2003, the other documents do not disclose the date on which it was filled up and there is no evidence to show when this application form along with demand draft was submitted at the office of E.P.F. The contradiction found in the evidence of P.W.6 regarding the submission of the application form and demand draft, which are marked as Ex.P.9 to Ex.P.13, the date of his submission and the person to whom it was submitted, is not taken note by the Trial Court. Further, the evidence of P.W.9 regarding submission of his application, demand draft and other annexures, which are marked as Ex.P.14 to Ex.P.18 and Ex.P.20, also bristles with contradictions. The prosecution has failed to explain how these two sets of applications submitted by P.W.6 and P.W.9 were found inside the brown cover, marked as Ex.P.23. Further, even the trap laying officer could not explain the relevancy of brown colour cover, marked as Ex.P.29 in this case. While the pink colour cover, which alleged to have been used to keep the bribe money has not been produced before the Court, the brown colour cover which is marked as Ex.P.23, carried the printed seal of Despatch Clerk, E.P.F. Organisation, Sub Regional Office, Tirunelveli, purportedly meant for official use. Whereas in Ex.P.23 and in Ex.P.29, is a plain brown colour cover, the signature of P.W.7, Chellapandi alone is obtained in these two covers. This would clearly show that the forms and tainted money were all planted with oblique motive.
6.The learned senior counsel would also pointed that the interpolation in the recovery mahazar inserting the name of Chockalingam, as the sixth witness in the entrustment mahazar would also belie the case of the prosecution regarding the presence of Chockalingam at the relevant point of time. The learned senior counsel would submit that while the prosecution has failed to prove the demand, acceptance as well as recovery in the manner known to law, the Judgemnt of the Trial Court is bound to be set aside.
7.Per contra, the learned Special Public Prosecutor for C.B.I. Cases would submit that the contradictions pointed out by the learned senior counsel for the appellant are very trivial and will not go to the root of the prosecution case. The very fact that under E.P.F. Scheme, even if an organisation is having less than 20 workers, can voluntarily submit themselves for enrolling under the scheme and P.W.6 and P.W.9 had taken demand draft for Rs.7,310/- and Rs.7,115/- respectively on 30.06.2003 and submitted with the filled in applications in triplicate along with other necessary documents, would clearly prove that despite receipt of the application and demand draft on 30.06.2003, the appellant herein has not processed the application, awaiting gratification. It is proved through the evidence of P.W.6 that he came to E.P.F. Office at Nagercoil, on 07.07.2003 to enquire about his application. The appellant demanded bribe to process the application. The complaint, Ex.P.24, which has set the criminal law into motion and the deposition of P.W.6 and P.W.9 would clearly prove the fact that on 22.07.2003, the accused has called P.W.6 to meet him on 23.07.2003 with money. Accordingly, when both of them met the accused on 23.07.2003, the accused has demanded the bribe money and received it and kept it in the brown colour cover, which was subsequently seized by the trap laying officer under the mahazar, Ex.P.26. While entering the name of Chockalingam (P.W.9) in the entrustment mahazar on the second page top, after the name of Radhakrishnan, at the end of the first page, by inadvertence, the serial number has been wrongly mentioned as 6 instead of 5. This minor error cannot be construed as a manipulation and this cannot lead to the presumption that Chockalingam was not present during the entrustment procedure. The signature of Chockalingam, P.W.9, in all pages of the entrustment mahazar, will clearly dislodge the suspicion raised by the appellant regarding the presence of Chockalingam during the entrustment procedure. However, during cross- examination, P.W.9, Chockalingam, has spoken about his presence both at the time of entrustment as well as trap proceedings.
8.The learned Special Public Prosecutor for C.B.I. cases would also submit that the lapse on the part of the prosecution to mark the pink colour cover in which the tainted money was kept, is not fatal to the prosecution, since the very recovery of tainted money from the possession of the accused, is proved beyond doubt. For the said reasons, the learned Special Public Prosecutor would submit that there is no error or illegality in the Judgment passed by the Trial Court and there is no mis-appreciation of evidence by the Trial Court. Therefore, the appeal has to be dismissed as devoid of merits.
9.Point for consideration:
"Whether the Trial Court's conclusion regarding demand, acceptance and recovery of tainted money from the accused, is sustainable in the light of the lacuna pointed out by the defence?".
10.According to the prosecution, on the day of trap, the de facto complainant, Raghupathy (P.W.6) along with the shadow witness, Chellapandi (P.W.7) proceeded with the motor cycle bearing Registration No.TN-23-C-4669. They were followed by the trap team, consisting of Ananthakrishnan (P.W.8), C.S.Mony (not examined), Chockalingam (P.W.9) and C.Radhakrishnan (not examined) in two auto-rickshaws. At 09.40 hours, they reached the E.P.F. Office, which is located at the second floor of the building. The accused was waiting at the entrance of the building. P.W.6 went towards him and Chockalingam followed him. At a distance, Chellapandi followed Chockalingam. Raghupathy (P.W.6) and Chockalingam (P.W.9) had a small chat with the accused and went up to the office. As per the recovery mahazar, the accused was holding a brown colour cover in his hands at that time. The prearranged signal has been given by Chellapandi (P.W.7) to the trap team from the second floor of the building. The trap team had enquired the accused about whether he demanded and received bribe amount of Rs.10,000/- from P.W.6. According to the recovery mahazar, which is a contemporaneous document, when the accused was enquired about the bribe money, he became nervous and after repeated enquiry, he accepted the receipt of the bribe amount from P.W.6 in a cover and kept the same in another brown cover and told that he kept it on his table and pointed out the brown cover, with E.P.F. Office address printed on it. Thereafter, phenolphthalein test has been conducted at the hands of the accused. Since the test proved positive for the presence of phenolphthalein, hand wash solution was collected for chemical analysis and the accused was directed to produce the money he received from P.W.6. The accused has identified the cover in which he has kept the money. Chellapandi (P.W.7) took out the bribe money from the cover as per instruction of Ananthakrishnan (P.W.8). Apart from the currency, the cover had two sets of applications detailed as under:
"(1)(a)A set of application containing G.D.D. bearing No.060480 of Union Bank of India, Nagercoil, payable to Regional Provident Fund, commisssioner, Tirunelveli amounts to Rs.7310/- dated 30.6.2003 (1 sheet).
b)Consent letter of Srinivas Mini Bus Transport, Nagercoil U/s.1(4) of GPF of MP Act 2 sheets in Triplicate (6 sheet).
c)Consent letter of Majority of employee for Voluntary course dated 30.6.2003 of proprietor Srinivas Mini bus Transport, 2 sheet, in Triplicate (6 sheet)
d)Proforma for coverage witness annexures (4 sheet) totaling (17 sheets).
(II)(a)A set of applicant containing a D.D. bearing No.060481 of Union Bank of India, Nagercoil, payable to Regional Provident Fund Commissioner, Tirunelveli amounting to Rs.7115/- dated 30.6.03 (1 sheet).
b)Consent letter of Periya Nadar Mini Bus Transport, Nagercoil, U/s.1(4) of EPF and MP Act - sheet in Triplicate (6 sheet).
c)Consent letter of Majority of employees for Voluntary course dated 30.6.03 of proprietor Periya Nadar Mini bus Transport, Nagercoil.
d)Proforma for coverage witness annexures (4 sheet) totaling 17 sheets.
11.Though the entrustment mahazar (Ex.P.25) says that the tainted currency was kept in a pink colour cover, contrarily in the recovery mahazer (Ex.P.26), it is mentioned as yellowish brown colour cover, where the bunch of 100 rupee notes was found and taken out for comparison. Apart from the contradiction regarding the colour of the cover before the Trial Court, the prosecution has marked two covers, one is Ex.P.23 and another is Ex.P.29. While Ex.P.23 is a cover, wherein the address of E.P.F. Office, etc. are found in print also bigger in size, Ex.P.29 is an ordinary brown colour cover, smaller to Ex.P.23. Except the signature of Chellapandi and his name with detail, no other witness to the alleged recovery has signed on these covers.
12.The case of the prosecution is that they recovered the tainted currency from this cover, which is marked as Ex.P.29, which was kept inside Ex.P.23 cover along with the above mentioned documents. Contrary to the contents in the recovery mahazar, Ex.P.26, the evidence of P.W.6, de facto complainant indicates that on reaching the E.P.F. Office, he saw the accused standing near the steps at the entrance. Chellapandi (P.W.7) was standing behind him at some distance. He (P.W.6), the accused and Chockalingam, climbed the place and went upto second floor. Chellapandi (P.W.7) followed them. When they stopped, Chellapandi went ahead of them. At that time, the accused demanded whether he brought the amount as demanded. P.W.6 said yes and took the money from the pocket and handed it over to the accused. The accused accepted the money, put the money in the brown colour cover, which he was having. Then, they all went to the office. Chellapandi took his hand- kerchief and wiped his face, a signal to the trap team. According to P.W.6, after receipt of the signal, when the trap team has entered the office of the accused, the cover, which he gave was on the table. The accused took the money and handed over it to Ananthakrishnan (Inspector of Police). The cover was opened, in which his application along with annexures and demand draft and application of Periya Nadar Mini Bus Transport Company, were found with the money, he gave.
13.Nowhere, this witness has said that the tainted money was kept in a pink colour cover or brown colour cover or he handed over cover containing the tainted money. This omission gain significance, because apart from Ex.P.23 cover, the prosecution has marked another cover Ex.P.29, which is not pink in colour and this cover was not identified by P.W.6, who has given the bribe.
14.P.W.7, who is supposed to have witnessed the demand and acceptance of bribe, would say in his chief examination that Reghupathy and Chockalingam (P.W.9) went along with Manojkumar (accused) and he was walking behind them. He was unable to follow them, so waited at distance. He was standing at the end of the first floor, leading to second floor, which was visible to him. Manoj Kumar Nair, Raghupathy (P.W.6) and Chockalingam (P.W.9) were in the end of the second floor staircase. He saw the accused having a brown colour cover in his left hand and extending his right hand towards Raghupathy, who in turn took the cover containing the money and handed over it to Manoj Kumar Nair. Manoj Kumar Nair checked the notes in the cover and put it in the brown colour cover, which he was having and went inside the E.P.F. Office along with Raghupathy and Chockalingam. He thereafter, went to the second floor and gave prearranged signal. When the trap team went inside the room, he also went along with them. He saw Manoj Kumar Nair (accused) sitting in the cabin and found the brown colour cover kept on the table. Raghupathy and Chockalingam were sitting opposite to the accused. After introducing themselves, Ananthakrishnan enquired the accused had he received any bribe money from Raghupathy. The accused took the brown colour cover kept on his table and handed over to Ananthakrishnan. On verifying the cover, he found another cover, tainted money, demand draft, application and enclosures, totalling 17 sheets. The currency recovered from the cover found on the table of the accused tallied with the currency numbers recorded in the entrustment mahazer.
15.P.W.9, Chockalingam, who according to the prosecution, was along with P.W.6 while the accused demanded and received tainted money, had deposed that he accompanied the trap team in an autorickshaw along with Ananthakrishnan, P.W.8, while the other members of the trap team came in another autorickshaw reached E.P.F. Office at 09.30 a.m. and saw Manoj Kumar Nair (accused) standing at veranda in the second floor. On seeing them, he came down and asked Raghupathy (P.W.6) whether he has brought Rs.10,000/-. Raghupathy answered yes. Then, the accused said we will go to the room in the second floor. He asked for money and received money from Raghupathy. The accused put the money in the brown colour cover, he was having. Chellapandi saw P.W.6 giving bribe from the first floor and gave the signal to trap laying officer. Then the trap team entered the office. Ananthakrishnan told the accused that he is going to arrest him for receiving bribe of Rs.10,000/-. First, the accused denied it and later accepted and took the money from the drawer and thereafter, phenolphthalein test was conducted at the hands of the accused.
16.Besides, the doubt regarding the demand, acceptance and recovery on the day of trap, there is also certain other infirmities in the case of the prosecution, which would indicate that the case of the defence that the money was planted without the knowledge of the accused, is probable. From the complaint, which is marked as Ex.P.24, it appears that P.W.6 has submitted his applications along with the annexures and demand draft, which are marked as Ex.P.9 to Ex.P.13 to the accused on 30.06.2003. At that time, the accused has told to meet him after one week. On the very same day, the application of P.W.9 along with annexures and demand drafts were also submitted by P.W.9 to the accused. His application and annexures relating to Periya Nadar Mini Bus Transport Company are marked as Ex.P.14 to Ex.P.18 and Ex.P.20. Both the applications are enclosed with demand drafts, drawn on 30.06.2003. The applications and annexures are filled in a printed form. P.W.6, the de facto complainant is unable to say from whom he got the form and who filled up those form. Regarding the demand drafts, he admits that they were purchased by P.W.9 for him and for P.W.9. In the complaint, he has not mentioned at what time he met the accused along with the application form and demand draft on 30.06.2003. In the cross examination, he admits that he did not send the person to the bank to take demand drafts, Ex.P.13 and Ex.P.18. The application for demand drafts were made by Chockalingam (P.W.9), the manager of Periya Nadar Mini Bus Transport Company. Chockalingam brought the demand drafts from the Union Bank of India on 30.06.2003. According to P.W.6, when Chockalingam brought both the demand drafts to him, the time was 03.00 p.m. on 30.06.2003. Whereas Chockalingam (P.W.9) in his cross examination has deposed that two separate demand drafts were taken for each of the company. He took the demand draft for his company. He do not remember whether the demand draft (Ex.P.13) of Srinivasa Mini Bus Transport Company was purchased by him. Further he has stated that the application form was given to the Nagercoil office on 30.06.2003 in the morning before 12.00 noon. He did not receive any receipt or acknowledgement for the submission of the application and demand draft.
17.The contradicts found in the deposition deposition of P.W.6 and P.W.9 regarding the manner and time of submitting their application which were found along with the tainted money is very fatal to the prosecuted case, since P.W.6 and P.W.9 are not alien to each other. The proprietrix of Srinivasa Mini Bus Transport Company, Rajalakshmi and the proprietor of Periya Nadar Mini Bus Transport Company, Mr.Chellappan Pillai are sister and brother. The demand drafts of both the organizations are dated 30.06.2003 and numbers are 0604840 and 0604841. Form 12-A submitted by these two applicants carried demand draft numbers, date and amounts. Documents of 17 sheets each are recovered under the mahazar, which were kept in a cover marked as Ex.P.23 along with the tainted money of Rs.10,000/-. As per the evidence of P.W.3, C.A.Mathew, the Assistant Provident Fund Commissioner and P.W.4, Govindarajan, the Assistant Accounts Officer, Sub Regional Office, E.P.F., Tirunelveli, it is clear that any application for enrolment under the scheme has to be submitted only at the sub regional office at Tirunelveli. The application need not be sent to Delhi for getting code number. While so, the case of the de facto complainant that he gave his application along with demand draft on 30.06.2003 at Nagercoil office to the accused, appears to be a make belief statement. According to him, the entire form was filled up by the same person, whom, he is not able to recollect. In the cross examination, he admits that Ex.P.9, covering letter in triplicate from Srinivasa Mini Bus Transport Company, expressing consent of employer for voluntary enrolment, was submitted by his mother, three days prior to 30.06.2003 to the Regional Provident Fund Commissioner at Tirunelveli. The proforma for coverage marked as Ex.P.10, in respect of Srinivasa Mini Bus Transport Company ought to have been prepared on 30.06.2003 or thereafter, since it carries the demand draft number and amount of contribution for the sixteen employees, who are listed in the proforma. The said Ex.P.19 also list out seventeen documents, which are to be submitted along with the proforma for coverage. Whether those documents enlisted in Ex.P.10 were submitted by the de facto complainant or not, is unknown.
18.P.W.6 as well as P.W.9 admit that after submitting their applications along with the demand drafts, they did not ask for any acknowledgement or receipt. As pointed out by the learned senior counsel for the appellant, the date of application is conspicuously absent in all these documents. In normal course, any application submitted to any office whether at the main office at Tirunelveli or Nagercoil, the clerk concern, will receive it, affix the office seal and make entry in the register. This aspect is spoken by P.W.5, Jayakumar, Upper Division Clerk. In this case, there is no evidence to show that the application annexures and demand draft, which are marked as Ex.P.9 to Ex.P.18 and Ex.P.20 were received by the office on 30.06.2003 or thereafter.
19.It is the case of the prosecution that all these documents along with the demand draft were submitted to the accused by P.W.6 and P.W.9 on 30.06.2003 at different point of time. The accused was holding over the applications and demand drafts without making any entry. On 23.07.2003, he was carrying the cover containing these applications and other documents with him. On the day of trap, he was found carrying cover containing applications forms and annexures. He received the tainted money and kept it inside the cover containing all the other documents and kept the cover on his table, which was later recovered by P.W.8.
20.The entry allegation appears improper and unbelievable, because the procedure to submit application for voluntary enrolment as spoken by P.W.3, C.A.Mathew, is that whenever employer comes to Enforcement Office for allotment of E.P.F. code number, they should be directed to meet the concerned P.R.O., Sub Regional Office, Tirunelveli. In the cross examination it is elucidated that on receipt of any application for voluntary enrolment, number will be allotted within three days and no need to forward the application to Delhi. Even, if there is any omission to submit requisite forms and details, the same will be collected subsequently from the employee, but code number will be given in anticipation.
21.On a cumulative reading of the evidence, starting from the complaint, Ex.P.24, the alleged submission of application on 30.06.2003 to the accused at Nagercoil itself is doubtful, in view of the fact that when P.W.6 specifically admits that Ex.P.19 was submitted by his mother three days prior to 30.06.2003 at Tirunelveli Office. It is surprised to note that P.W.6 does not know the person, who has filled the application form alleged to have been recovered from the accused on the day of trap. The reading of the application form and the annexures clearly indicate that they are informations pertaining to his company and he alone has knowledge about those details. While so, his refusal to disclose the person, who has filled up the application, creates doubt whether this application was really submitted by P.W.6 to the accused on 30.06.2003 as alleged. When the accused as an Enforcement Officer, is supposed to go for inspection and field visit, the duty chart, which was marked as a defence exhibits, also indicates his work schedule for the period covering 08.07.2003 to 20.07.2003 was received by the accused on 07.07.2003 from Sub Divisional Office, Tirunelveli. Therefore, the alleged presence of accused on 07.07.2003 at Regional Office, Nagercoil also became doubtful. While the mother of P.W.2, who is the proprietorix of Srinivasa Mini Bus Transport Company had knowledge to submit her application in triplicate (Ex.P.19) at Tirunelveli office, what necessitated P.W.6 to submit the other documents with demand draft to the accused at Nagercoil three days later, is unexplained by the prosecution.
22.Thus, neither the demand nor acceptance is proved beyond doubt by the prosecution. The evidence of P.W.6 with bundle of contradictions and lack of corroboration, cannot be a basis to convict the accused. The manner in which the tainted money was recovered, is not established beyond doubt.
23.The pink colour cover, which is alleged to have been used to keep the tained money at the time of entrustment, has not been seized by the prosecution and has not been spoken by the prosecution witnesses, contrarily a brown colour cover marked as Ex.P.29 has been produced before the Court, which has no relevancy even according to the prosecution. The purpose of introducing Ex.P.29, cover is very mysterious and makes the case of the prosecution murky about the recovery of tainted money. When the prosecution has failed to prove the demand, acceptance and recovery, the Court cannot presume against the appellant/accused under Section 20 of P.C. Act.
24.Regarding recovery, P.W.6 and P.W.7 say that the tainted money kept inside the brown colour cover containing the application form and other documents and was on the table of the accused, whereas P.W.9 would say that the money was in the drawer of the accused. So the very presence of P.W.9 during entrustment mahazer as well as the recovery is doubtful, due to the contradictions elucidated from him regarding the vital aspect of recovery. Furthermore, he is one of the applicants for E.P.F. code. He has taken demand draft on the same day when P.W.6 has taken demand draft for Srinivasa Mini Bus Transport Company. While P.W.6 says that both the demand drafts were obtained by P.W.9, it is not admitted by P.W.9. P.W.9 says that he gave the application to the accused at Nagercoil Office before noon, whereas P.W.6 would say that both the demand drafts were brought by P.W.9 at about 03.00 p.m. His contradictory version and the interpolation of his name in the entrustment mahazar, causes doubt whether he was really present during the trap proceedings and witnessed the recovery as spoken by the prosecution. In the said circumstances, the Judgment of the Trial Court is liable to be set aside.
25.In the result, this Criminal Appeal is allowed and the conviction and sentence dated 10.01.2007, passed in C.C.No.5 of 2004 by the learned Special Judge for CBI Cases, Madurai are set aside. The appellant/accused is acquitted. Bail bond if any executed by him, shall stand cancelled and fine amount, if any, paid by him is ordered to be refunded forthwith. Consequently, connected Miscellaneous Petition is closed.
To
1.The Special Judge for CBI Cases, Madurai.
2.The Inspector of Police, SPE/CBI/ACB/Chennai.
3.The Special Public Prosecutor for C.B.I. Cases, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.