Madras High Court
A.Kannan vs State Through on 31 October, 2014
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2014
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
Criminal Appeal No.313 of 2005
A.Kannan ... Appellant
Vs.
State through
The Inspector of Police,
D.V. And A.C.,
Madurai. ... Respondent
Prayer
Criminal Appeal is filed under Section 374 of the Code of Criminal
Procedure, against the conviction and sentence passed by the learned Special
Judge for P.C. Act Cases (Chief Judicial Magistrate), Madurai, in Special
Case No.2 of 2003 dated 15.06.2003.
For Appellant : Mr.K.Sundaravel
For Respondent : Mrs.S.Prabha,
Government Advocate (Crl. Side)
:JUDGMENT
The appellant/accused has come forward with this appeal challenging his conviction and sentence passed by the learned Special Judge for P.C. Act Cases (Chief Judicial Magistrate) Madurai dated 15.06.2003 made in Special Case No.2 of 2003 convicting the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo one year rigorous imprisonment and also imposing a fine of Rs.500/-, in default, to undergo one month simple imprisonment and also convicting him under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo one month simple imprisonment. The sentences were ordered to run concurrently.
2.The case of prosecution is that the accused Kannan was working as Firka Surveyor at Melur Taluk Office. P.W.2, Karuppasamy, the defacto complainant has purchased a property in S.No.27/3 to an extent of 10 cents under the sale deed dated 14.07.1997, Ex.P2.
3.On 24.05.2001, after paying a sum of Rs.20/- by way of Challan, Ex.P3, met the accused Kannan and gave application Ex.P5 to subdivide the property. But, the accused told the defacto complainant to present the application after two months. Therefore, the defacto complainant did not present the application for subdivision. After a lapse of two months, he again met the accused and at that time also, the accused requested him to present the petition after sometime.
4.Therefore, on 05.10.2001, the defacto complainant presented the application, after made an enquiry with a Clerk at Melur Taluk Office. After a week therefrom, he met P.W.4, Velayutham, Deputy Survey Inspector and enquired about his application. Then only, he came to know that P.W.4 has not received his application and after enquiry, he came to know that the application was handed over to P.W.7, Ramasamy, Head Surveyor. Since the said application was missing, P.W.4 requested the defacto complainant to give a new application. Therefore, on 26.11.2001, he gave a new application, after paying a sum of Rs.30/- by way of Challan along with copy of sale deed dated 14.07.1997, Ex.P6. Since the accused told that the application has been filled in a proper form, the defacto complainant presented the application. Ultimately, the defacto complainant was asked to come to the Office of P.W.8, Rajendran, who is the Village Administrative Officer, Melur. Accordingly, on 04.02.2002, the defacto complainant gone to the office of P.W.8 Rajendran, the Village Administrative Officer. The accused demanded a sum of Rs.5,000/- as bribe for subdividing the property. At that time, P.W.8 was also present. But, P.W.2 was not willing to pay the amount by saying that even he has purchased the property only for a sum of Rs.14,570/-. Therefore, the accused reduced the amount to Rs.1,500/-. But, the defacto complainant was not able to mobilise the funds. On 04.02.2002, the accused came to the property and surveyed the same along with V.A.O, and other official staffs. On 18.02.2002, at 01.00 p.m. the defacto complainant met the accused at his office, where the accused demanded money. But, the defacto complainant informed that he was unable to mobilise the funds and he prayed for reducing the amount and accordingly, the accused reduced the amount to Rs.1,000/- and asked the defacto complainant to pay the same on 25.02.2002 before 3.00 p.m. and then only, he would get the certificates for subdivision. Since the defacto complainant was not willing to pay bribe, he approached P.W.12, Mutharasu, Inspector of Vigilance and Anti Corruption, Chokkikulam, Madurai on 25.02.2002 at 09.30 a.m. and gave a complaint Ex.P3 along with Ex.P4 xerox copy of Challan dated 24.05.2001, Ex.P5 copy of application and Ex.P6 copy of sale deed dated 14.07.1997.
5.P.W.12, Mutharasu, Inspector of Police, Vigilance and Anti Corruption has received the complaint at 10.15 a.m. on 25.02.2002 and registered a case in crime No.4 of 2002 for the offence under Section 7 of Prevention of Corruption Act, 1988. Ex.P.7 is the First Information Report. Copy of F.I.R. Was also given to P.W.2, the defacto complainant. P.W.2 handed over the copy of application dated 26.11.2001, P.W.8 and copy of challan Ex.P.9 to P.W.12 and thereafter sent the F.I.R to the Chief Judicial Magistrate Court and to the higher officials and also enquired with P.W.2, whether he brought money.
6.On the same day, at 12.00 noon, P.W.12, the Inspector of Police sent intimation to the office of the D.I.G., Registration Department and to the office of Executive Engineer, Public Works Department to send two witnesses for the purpose of conducting a trap. Accordingly, P.W.3, Baskaradoss from the Registration Office, who was working as Grade I Sub Registrar and one Manisekaran, Assistant Executive Officer, from the Public Works Department came to the Vigilance and Anti-Corruption Office at Madurai. P.W.12 introduced P.W.2 to P.W.3 and another witness Manisekaran and explained about the complaint given by P.W.2 and thereafter demonstrated the phenolphthalein test. P.W.12 further instructed P.W.2 to give the bribe amount after the demand made by the accused and thereafter to come out and give the signal by taking his spectacles from his pocket and wear the same. The said proceedings of the Vigilance and Anti-Corruption Office were recorded under the mahazar Ex.P10.
7.On the same day, at 2.30 p.m. the raiding party left the Vigilance and Anti- Corruption Office in the vehicle bearing Reg.No.TN.59-G-0277 along with P.W.2 and other trap witnesses. They reached M.D.D.C. Bank near the office of the Tahsildar, Melur at 3.15 p.m. P.W.12 instructed P.W.2 to go along with P.W.3 to the office of the accused. The raiding party was waiting for the signal of P.W.2.
8.At 3.30 p.m. P.W.2 went inside the office of the accused along with P.W.3. P.W.2 asked the accused to give the subdivision papers, where the same are ready. The accused asked whether P.W.2 has brought the amount as asked by him earlier. P.W.2 took out the currency notes Rs.1,000/- from his shirt pocket and gave the amount to the accused, which was received by the accused by his hands and after counting the same, he has put the amount on the right side of his pant pocket. At that time, the time was 3.40 p.m. P.W.12 asked the papers, for which the accused replied that he would get it by next week. Thereafter, both P.Ws.2 and 3 left out the office of the accused and P.W.2 has given the prearranged signal.
9.On seeing the above signal, P.W.12 and his party approached P.W.2 and P.W.3 and ascertained that the accused received the bribe amount from P.W.2. P.W.12 and his party entered into the room of the accused and introduced themselves to the accused. P.W.12-Inspector of Police asked the defacto complainant to identify the accused and he identified the accused Kannan. Thereafter, he conducted phenolphthalein test on the hands of the accused, which was found positive. Then he recovered the tainted amounts from the accused and arrested him after informing the grounds of arrest and on further enquiry, the accused produced Rs.1,000/- from his right side pant pocket, which was marked as M.O.3 series. Since the accused was not able to give proper explanation for the above amounts, P.W.11 recovered the above amounts and conducted the sodium carbonate test on the hands of the accused, which was marked as M.O.2 and 3 series and conducted the sodium carbonate test on the pant of the accused, which was marked as M.O.4 and the pant was marked as M.O.5. On further enquiry, P.W.12 recovered Ex.P11, file regarding R.D.R.1934/01. The Inspector arrested the accused at 5.00 p.m. and prepared observation Mahazer Ex.12 and rough sketch Ex.P13. Thereafter, he handed over the case diary to P.W.13, Fathima Rohini, Inspector of Police, for further investigation.
10.P.W.13, Fathima Rohini, the Inspector of Police, Vigilance and Anti- Corruption took up further investigation in this case. He has examined P.Ws.2 and 3 Baskaradoss and Manisekaran others and recorded their statements. P.W.13 also sent for some documents from the Tahsildar Melur. On 06.03.2002, she sent the materials to the Court under form 95 and also gave a requisition to send the same for chemical examination. P.W.10 Subramanian, Head Clerk received the requisition and sent the same to the Forensic Department. P.W.11 conducted the test and gave report Ex.P11. Thereafter, after examining the remaining witnesses and after completion of investigation, P.W.14 filed the charge sheet in this case against the accused for the offence under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
11.The learned trial Judge, after following the procedures, framed charges against the accused. The accused denied the same. Therefore, the prosecution, in order to bring home the charges against the accused examined P.Ws.1 to 14, filed Exs.P1 to P.34, besides marking M.Os.1 to 5.
12.After completion of the prosecution evidence, the incriminating evidence against the accused were placed before him. He totally denied the same. The learned Chief Judicial Magistrate after considering the oral and documentary evidence, convicted and sentenced the accused as stated above, against which, the accused preferred an appeal.
13.Challenging the conviction and sentence passed against the appellant/accused, though the learned counsel for the appellant has raised so many grounds in the memorandum of appeal, during his arguments, he has focussed his argument only to the effect that the second demand is questionable, since there is a contradiction between the ocular evidence and documentary evidence and Ex.P.12-recovery mahazar, wherein, it was stated that P.W.2 has come out of the surveyor room only at 15.40 hours. He was followed by another witness P.W.3-Baskaradas. But they were unable to state as to whether the appellant/accused has come out of the room. So, there is a material contradiction.
14.To substantiate the argument, the learned counsel for the appellant relied upon a decision of the Supreme Court in Suraj Mal v. State (Delhi Admn.) reported in AIR 1979 SC 1408 and submitted that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be made based on the evidence of such witnesses and prayed for setting aside the conviction and sentence.
15.Resisting the same, the learned Government Advocate (Criminal side) appearing for the respondent would submit that the evidence of P.W.2 has been corroborated by P.W.3, who is an official witness. She would further submit that there is no contradictory statement between the oral and documentary evidence. She has taken me through the 313 Cr.P.C. statement of the appellant, in which, he admitted his presence and recovery of the amount, that too, from his pant pocket and also the phenolphthalein test was positive. She would further submit that the Trial Court has considered all the above aspects in proper perspective and hence, the conviction and sentence imposed by the Trial Court do not suffer from any illegality or irregularity and she prayed for dismissal of the appeal.
16.A perusal of the typed-set of papers would go to show that the appellant/accused was working as a Firka Surveyor. P.W.2 has purchased the property on 14.07.1997 under a sale deed Ex.P.2. Admittedly, he filed a petition for sub-division. It is also an admitted fact that the work regarding sub-division has been assigned to the appellant/accused. He, admittedly, surveyed the property along with Rajendran, Village Administrative Officer (P.W.8) and two village menial, on 04.02.2002. It is also the admitted fact that the trap proceeding has been initiated and after investigation, charge sheet has been laid. It is also the admitted fact that the appellant is a Government servant. P.W.1, the Assistant Director of Land Survey, who is the sanctioning authority, has accorded sanction as per Ex.P.1 by permitting P.W.14 to prosecute the appellant and that sanction has not been questioned by the appellant.
17.The points for consideration are, Whether there is a material contradiction between the oral and documentary evidence?
Whether the evidence of P.Ws.2 and 3 are reliable or Ex.P.12-recovery mahazar is reliable? and Whether the conviction based on the evidence of P.Ws.2 and 3 and Ex.P.12 is sustainable?.
18.Before going into the facts of the case, this Court has to consider the decision relied upon by the learned counsel for the appellant in Suraj Mal's case cited supra. In the said judgment, in paragraph No.2, it was held that two inconsistent statements given by witness at one or two stages cannot be relied upon, since it loses its worthiness. In that, it was also held that mere recovery of money from the accused is not sufficient for fascinating conviction. It is appropriate to incorporate paragraph No.2 of the judgment, which reads thus:
"2. The defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. In upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based, had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire case failed. In other words, the position was that while PWs 6, 8 and 9 were disbelieved both in regard to the factum of payment of the bribe and the recovery of the money, regarding Ram Narain, the very same witnesses were believed so far as the appellant was concerned. It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of PWs 6, 8 and 9 in regard to the complicity of Ram Narain, it was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses draw no distinction in the examination-in-chief regarding acceptance of bribe by Ram Narain and by the appellant and the witnesses were to be disbelieved with respect to one, they could not be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible. Moreover, there is an additional circumstance which throws a serious doubt on the complicity of the appellant Suraj Mal. Although, in his statement at p. 71 of the paper-book, the complainant has clearly stated that all the three accused including the appellant had met him and demanded bribe of Rs 2000, the appellant having demanded Rs 100, yet in the report which he lodged before Mr Katoch, there is no mention of the fact that the appellant at any time demanded any bribe at all. Even the presence of the appellant at the time when the demand was made by Davender Singh has not been mentioned, in this document. This report, undoubtedly contains reference to a demand having been made by the SHO Davender Singh on behalf of the appellant, but there is no statement in this report that any demand was made by Suraj Mal directly from the complainant. If, in fact, the appellant would have demanded bribe from the complainant just on the previous evening, it is not understandable why this fact was not mentioned in the report which the complainant submitted to the D.S.P. Katoch and which is the FIR constituting the evidence. We have perused the statements of PWs 6,8 and 9 and we find that while in the examination-in-chief they have tried to implicate all the three accused persons equally without any distinction, in their cross- examination, they have tried to save Ram Narain and made out a different story so far as Ram Narain is concerned and have even gone to the extent of stating that he did not demand any money and that he refused to accept the money which was offered to him. In this state of the evidence, we feel that the High Court was not right in convicting the appellant. Mr Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case, it is an established fact that money had been recovered from the bushshirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Section 342 has denied the recovery of the money and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement under Section 342 of the CrPC. Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds."
19.Now, this Court has to decide the facts of the present case along with the light of the decision cited supra. Admittedly, P.W.2 is the defacto complainant and he is the retired Line Inspector working in the department of Tamil Nadu Electricity Board and he has no personal enmity between the appellant. On going through both the chief and cross-examination, I am of the view that there is no reason for discarding the evidence of P.W.2.
20.Now, this Court has to consider as to whether the evidence of P.W.3, who is the attestor of the trap proceedings and also recovery mahazar Ex.P.12. P.W.3 is working as Sub-Registrar, Madurai North. He was present at the time of demonstration of the phenolphthalein test and also the trap proceedings as witness. On perusal of both chief and cross-examination, I do not find any reason to discard the evidence of P.W.3 also, because the evidence of P.W.2 and P.W.3 are cogent in nature and so, it is reliable.
21.It is worthwhile to mention that P.W.2 has substantiated his averment by relying some documents and that have been fortified by the Government documents. In such circumstances, I am of the view that there is no reason for discarding the evidence of P.W.2 and P.W.3.
22.Now, this Court has to decide the document Ex.P.12-recovery mahazar. The learned counsel for the appellant has mainly relied upon the averments made in page No.137 of the typed-set of papers. Therefore, it is appropriate to incorporate the following portion:
"Rkhh; 15.30 kzpf;F thjp fUg;grhkpa[k;, muR rhl;rp jpU.gh!;fujh!Pk; BkY]h; jhYfh mYtyf tshfj;jpDs; fpHf;Fg; gFjpapy; cs;s rh;Btah;fSf;F xJf;fg;gl;l miwapDs; brd;wdh;. Ma;thsUk;, kw;bwhU muR rhl;rpa[k;, BghyP!;ghh;l;oapdUk; Bkw;go fl;olj;ij Rw;wp kiwe;J epd;W fz;fhzpj;jdh;. Rkhh; 15.40 kzpf;F thjp jpU.fUg;grhkp Bkw;go rh;Btah; miwia tpl;L btspBa te;jhh;. "
23.Relying on the above extracted statement, the learned counsel for the appellant submitted that even though the trap parties have been standing and witnessing the incident in question and the surveyor room is visible for them, they have not stated that the appellant has come out of the room. It is useful to extract the following averment, which reads thus:
"mth; gpd;dhByBa muR rhl;rp jpU.gh!;fujh!Pk; te;jhh;. thjp Vw;fdBt tHA;fpapUe;j mwpt[iuapd;go jd;rl;ilapy; itj;jpUe;j fz; fz;zhoia vLj;J jd; fz;fspy; khl;o, vjphp fz;zd; gzk; thA;fpajw;F milahskhf rpf;dy; bfhLj;jhh;."
24.It is appropriate to consider the evidence of P.W.2 and Ex.P.12. As per the evidence of P.W.2, he and P.W.3 went to the office of Tahsildar, Melur and entered into the Surveyor room and after seeing P.W.2, the appellant came out of the room and P.W.2 handed over the amount as demanded by the appellant for the purpose of sub-division of the land in question. As per Ex.P.12, after payment, P.W.2 and P.W.3 came out of the surveyor room and they gave the signal, as instructed by P.W.12, Muttharasu. In such circumstances, I am of the view that the portion relied upon by the learned counsel for the appellant will not support the case of the defence. The entire reading of Ex.P.12, would go to show that it will not contradict the statement of P.W.2 and P.W.3 and hence, the argument of the learned counsel for the appellant does not merit acceptance. Therefore, the decision relied on by the appellant in Suraj Mal's case cited supra is not applicable in respect of the contention regarding to discard the evidence of P.W.2 and P.W.3.
25.It is admitted that the amount has been recovered from the appellant and phenolphthalein test in respect of hands and pant pocket has been positive. At this juncture, the learned counsel for the appellant has relied upon paragraph No.2 of the judgment in Suraj Mal's case cited supra, wherein, it was stated that mere recovery of money is not sufficient for fascinating conviction.
26.Now, this Court has to consider whether the appellant has accepted the money and whether he made a demand and accepted the same. As already stated, the evidence of P.W.2 and P.W.3 are reliable and each evidence has been corroborated with each other and they have stated that as soon as P.W.2 and P.W.3 entered the room of the appellant, on seeing them, the appellant came out of room, and thereafter, P.W-2 made a request regarding the certificate, and immediately, the appellant asked about the money and he said that he bought the money and gave it to the appellant and on receiving the amount, he counted the same and put the amount on his pant pocket, but whereas in 313 Cr.P.C. statement, the appellant has stated that he has not demanded any illegal gratification for sub-division. Even P.W.2 tendered the money and he refused to receive the same, but he attempted to thrash the amount in his shirt pocket, and he refused to receive and he pushed down and at that time, P.W.2 thrashed the amount into his right pant pocket and immediately, the police people came and he handed over the amount and as such, he has not committed any offence. But, admittedly, at this juncture, in the recovery mahazar, as soon as he caught hold, the amount has been recovered and he has not given any explanation to the effect that the amount has been forcibly thrashed in his pant pocket by P.W.2. It is true that during cross-examination, such a question has been posed. But, in the recovery mahazar, a copy of which has been received by the appellant, he has not made any endorsement that the amount has been forcibly thrashed into his right pant pocket. In such circumstances, I am of the view that the argument advanced by the appellant's counsel that P.W.2 has forcibly thrashed the money in his pant pocket does not merit acceptance.
27.Adding further, one Kalimuthu, Tahsildar, who is the attestor of the recovery mahazar, was examined as P.W.5 and in his evidence, he has stated that in his presence only, the amount has been recovered and phenolphthalein test has been conducted. It is not the case of the appellant that he has given an explanation that the amount has been thrashed by P.W.2 in his pant pocket. So the argument advanced by the learned counsel for the appellant that mere recovery of money is not sufficient for fascinating conviction does not merit acceptance.
28.It is crystal clear from the evidence of P.Ws.2 and 3 and also P.W.5 and Ex.P.12, that the appellant herein has made a demand of illegal gratification for doing his official work on 04.02.2002 and subsequently, received the demand on 25.02.2002 and that amount has been recovered by P.W.12, in the presence of P.W.5 and others, and the phenolphthalein test has been positive. Hence, I am of the view that the Trial Judge has rightly found the appellant guilty for the offences as stated above and proved the case beyond reasonable doubt and I do not find any illegality or irregularity in the judgment of conviction and sentence passed by the Trial Court. Hence, it is, hereby, confirmed and the appeal deserves dismissal.
29.In fine, The Criminal Appeal is dismissed confirming the judgment of conviction and sentence dated 15.06.2003 made in Special Case No.2 of 2003 on the file of the learned Special Judge for P.C. Act Cases (Chief Judicial Magistrate), Madurai.
The Bail bond executed by the appellant, if any, shall stand cancelled.
The learned Special Judge for P.C. Act Cases (Chief Judicial Magistrate), Madurai is directed to secure the custody of the appellant/ accused to undergo the remaining period of sentence.
To
1.The Special Court for P.C. Act Cases (Chief Judicial Magistrate), Madurai.
2.The Inspector of Police, D.V. And A.C., Madurai.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.