Madras High Court
Palani Alias Palanisamy vs State Rep. By on 1 March, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.741 of
2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.741 of 2015
Palani alias Palanisamy .. Appellant
Vs.
State Rep. by
The Inspector of Police,
Vigilance and Anti Corruption Department,
Salem at Namakkal.
(Crime No.6/AC of 1998) .. Respondent
Criminal Appeal filed under Section 374(2) and 382 of Code of
Criminal Procedure to set aside the conviction and sentence passed by the
judgment in Spl.C.C.No.8 of 2002 on the file of the learned Special
Judge/Chief Judicial Magistrate, Namakkal, dated 20.11.2015.
For Appellant : Mr.N.Manokaran
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
******
JUDGMENT
This criminal appeal has been filed as against the judgment of https://www.mhc.tn.gov.in/judis 1/18 Crl.A.No.741 of 2015 conviction and sentence passed by the learned Special Judge/Chief Judicial Magistrate, Namakkal, in Spl.C.C.No.8 of 2002 dated 20.11.2015.
2 The respondent police registered a case in Cr.No.6/AC/98 for the offence under Section 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988 (in short 'the Act') against the appellant. After completing trap proceedings and investigation, the respondent police laid a charge sheet before the learned Additional District and Sessions Judge/Chief Judicial Magistrate, Salem. The learned Additional District and Sessions Judge/Chief Judicial Magistrate, Salem, had taken cognizance of the charge sheet in Spl.C.C.No.18 of 2000 and after completing formalities framed the charges against the appellant and thereafter, due to jurisdictional limit, the case was transferred to the learned Special Judge/Chief Judicial Magistrate, Namakkal, which was taken on file and renumbered as Spl.C.C.No.8 of 2002.
3 In order to substantiate the charges levelled against the appellant, on the side of the prosecution, during trial as many as 15 https://www.mhc.tn.gov.in/judis 2/18 Crl.A.No.741 of 2015 witnesses were examined as P.Ws.1 to 15 and marked 16 documents as Exs.P1 to 16, besides 7 material objects were exhibited as M.Os.1 to 7. On completion of examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, two witnesses were examined as D.W.1 and D.W.2, however no documentary evidence was let in.
4 On completion of trial and hearing of arguments advanced on either side, the learned Special Judge found the appellant guilty for the offence under Section 7 and 13(2) r/w 13(1)(d) of the Act and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for a further period of two months for the offence under Section 7 of the Act and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for further period of two months for the offence under Section 13(2) r/w 13(1)(d) of the Act and ordered both the sentences to https://www.mhc.tn.gov.in/judis 3/18 Crl.A.No.741 of 2015 run concurrently.
5 Aggrieved against the said judgment of conviction and sentence, the convict has preferred the present criminal appeal.
6 The learned counsel appearing for the appellant would submit that false case has been foisted against the appellant, who was working as Village Administrative Officer and he has no authority to issue legal heir certificate. No application for legal heir certificate can be submitted straight away before the appellant and as per the procedure, the application for legal heir certificate has to be submitted before the jurisdictional Tahsildar and the Tahsildar based on the report of the Revenue Inspector and the Village Administrative Officer, would issue the legal heir certificate. Village Administrative Officer would not receive any application directly for legal heir certificate and forward the same to the Tahsildar and therefore the case of the prosecution is falsified. In this case, prior demand, acceptance and recovery have not been proved. Mere recovery of tainted money alone will not attract the offence under Section https://www.mhc.tn.gov.in/judis 4/18 Crl.A.No.741 of 2015 13(1)(d). There are contradictions between the evidence of P.W.2 and independent witness P.W.4, P.W.13 and even the defacto complainant herself was declared as hostile by the prosecution itself. Prosecution has not proved that the defacto complainant approached the appellant for issuance of legal heir certificate. In fact the case was foisted by one Veerappan, who defeated in the local body election and who was under
the impression that the appellant is the cause for the same. Further there was enmity regarding the sale of old tree in the Panchayat, in which the appellant did not heed the demand made by the said Veerappan. Further the said Veerappan openly challenged that he will remove the appellant from the post of Village Administrative Officer and thereafter within a month, he set up this defacto complainant and foisted this false case against the appellant.
6.1 P.W.13 the Investigating Officer has stated that she recovered blank application from the defacto complainant, whereas, he recovered the filled application, which was marked as Ex.P8. The defacto complainant P.W.2 has not supported the case of the prosecution and hence she was declared as hostile witness. P.W.4, who is a shadow https://www.mhc.tn.gov.in/judis 5/18 Crl.A.No.741 of 2015 witness has stated that Deputy Superintendent of Police accompanied with him during the trap proceedings and P.W.2 also stated that DSP participated in the trap proceedings, whereas, he was not examined by the prosecution.
6.2 The defacto complainant has stated that she met the appellant thrice, whereas, during evidence, she has deposed that she met the appellant only twice. There are contradictions in the evidence of P.W.4, P.W.13 and the P.W.2 the defacto complainant. The trial Court has failed to consider the material contradictions.
6.3 Further he would submit that the sanctioning authority has not applied his mind before according sanction and the act of P.W.1 in issuing the sanction against the appellant is against the provisions of Section 19(1) of the Act and the sanction order issued by P.W.1 is not legally valid and prosecution has not proved its case beyond reasonable doubt. Unfortunately the trial Court has not discussed about the defective sanction order and the material contradictions and also has not considered the evidence adduced on the side of the defence.
https://www.mhc.tn.gov.in/judis 6/18 Crl.A.No.741 of 2015 6.4 The learned counsel appearing for the appellant would finally argued that the trial Court has miserably failed to consider the above points and has erroneously convicted the appellant, which is perverse. Therefore he prays to allow the appeal by setting aside the judgment of conviction and sentence passed by the trial Court. To support his contentions, the learned counsel relied on the following decisions.
1. 2014 (14) SCC 295 (CBI Vs. Ashok Kumar Aggarwal)
2. 2011 (6) SCC 450 (State of Kerala and anr Vs. C.P.Rao)
3. 2014 (13) SCC 55 ( B.Jayabal Vs. State of Andra Pradesh)
4. 2016(1) SCC 713 (N. Sunkanna Vs. State of Andhra Pradesh)
5. 2021 (3) SCC 687 (N.Vijaya Kumar vs. State of Tamilnadu)
6. 2011 (2) MLJ (Crl) 459 : MANU/TN/5513/2011 ( M.Rajendran vs. The State of Tamilnadu)
7. MANU/TN/3696/2022 (A.Velmurugan vs. State of Tamilnadu)
8. MANU/TN/6220/2019 (K.P.Kolanthai vs. State of Tamilnadu)
9. 2022 SCC OnLine SC 1724 (Neeraj Dutta vs. Sate (Govt. of N.C.T. Of Delhi) 7 Per contra, the learned Additional Public Prosecutor https://www.mhc.tn.gov.in/judis 7/18 Crl.A.No.741 of 2015 appearing for the respondent police would submit that P.W.2 is the defacto complainant, who set the law into motion approached P.W.13 trap laying officer. The husband of the defacto complainant was Driver and while he went to Dhurkapur, he died and his death certificate was obtained from Dhurkapur. In order to get legal heir certificate, on 26.12.1998 the defacto complainant approached the appellant and at that time he demanded Rs.750/- and thereafter when she met him on 29.12.1998, the accused reduced the demand to Rs.700/-. Since the defacto complainant did not want to give bribe, she went to the vigilance office and complaint was given on 31.12.1998. Thereafter P.W.13 arranged for trap proceedings on 31.12.1998 and on the same day summoned two independent witnesses from two different Government Offices viz. P.W.4 is the one amongst them. After arrival of the independent witnesses, P.W.13 introduced P.W.2 and thereafter they conducted pre-trap demonstration and prepared Ex.P3 entrustment mahazar.
7.1 Thereafter P.W.13 along with P.W.2, P.W.4 and the trap laying team, went to the office of the appellant and at that time the https://www.mhc.tn.gov.in/judis 8/18 Crl.A.No.741 of 2015 appellant was not available. P.W.13 asked P.Ws.2 and 4 to wait till arrival of the appellant and around 10.00 a.m. the appellant came to the office. When the defacto complainant asked the appellant about the legal heir certificate, he demanded the money and thereafter the defacto complainant gave money and after receiving money the appellant asked the defacto complainant to fill the application and also instructed her to get signatures from the witnesses. P.W.4 has also signed as one of the witnesses. Thereafter the defacto complainant went outside and showed the pre-arranged signal and on seeing the same P.W.13 went inside and conducted phenolphthalein test, which showed positive and thereafter tainted money was also recovered. P.W.3 is son of P.W.2, who also accompanied P.W.2 during trap proceedings. P.W.3, who is a school going child, has also clearly spoken about the demand made by the appellant at the time of occurrence and recovery of tainted money from the appellant. Therefore prosecution has proved prior demand, acceptance and recovery in the manner known to law.
7.2 The trial Court has rightly appreciated the entire oral and documentary evidence and has rightly convicted the appellant. There is no https://www.mhc.tn.gov.in/judis 9/18 Crl.A.No.741 of 2015 reason to interfere with the judgment of conviction and sentence made by the trial Court and the appeal is liable to dismissed.
8 Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent police and perused the materials available on record.
9 Admittedly the appellant was working as the Village Administrative Officer in Vettampady Village, Namakkal District. According to prosecution, P.W.2 the defacto complainant, who lost her husband had approached the appellant/accused for getting legal heir certificate. The defence of the appellant/accused is that the defacto complainant never approached the appellant for issuance of legal heir certificate and he has no authority to issue the legal heir certificate and he only submitted the report based on the letter received from the Tahsildar.
10 P.W.2 the defacto complainant clearly deposed that she lost her husband and in order to get legal heir certificate, she approached the appellant on 26.12.1998 and at that time the appellant demanded https://www.mhc.tn.gov.in/judis 10/18 Crl.A.No.741 of 2015 Rs.750/- for issuing legal heir certificate and thereafter the appellant/accused reduced the amount to Rs.700/-. Thereafter since she did not want to give any bribe to the appellant, approached the respondent on 30.12.1998 and thereafter on 31.12.1998 trap proceedings was conducted and succeeded and hence case was registered against the appellant/accused.
11 In order to prove the illegal demand made by the appellant/accused, prosecution has examined P.W.3 son of the defacto complainant, who accompanied P.W.2 during trap proceedings. P.W.3 has clearly deposed that he went along with his mother and uncle to the office of the appellant and at that time the appellant demanded money for issuance of the legal heir certificate.
12 P.W.4 the shadow witness has clearly deposed that he was summoned by P.W.13 and he went to the vigilance Office on 31.12.1998 and got introduced with P.W.2 and thereafter conducted pre-trap proceedings and prepared entrustment mahazar, which was marked as Ex.P3. Thereafter they were asked to go to the office of the appellant https://www.mhc.tn.gov.in/judis 11/18 Crl.A.No.741 of 2015 accompanied by the defacto complainant. They went to the office of the appellant on 31.12.1998 and at that time since the appellant was not available, they were waiting and after sometime when the appellant came and demanded the money. Subsequently the appellant asked P.W.2 to fill the application and get signature from the witnesses and P.W.4 also signed as witness and handed over the same to the appellant. After the appellant received the money from P.W.2, when P.W.2 shown the pre- arranged signal, P.W.13 trap laying officer went inside along with the team. Phenolphthalein test was conducted, which showed positive and thereafter money was recovered. Therefore prosecution has proved the main ingredients of Section 7 of the Act i.e. prior demand, acceptance and recovery of tainted money through entrustment mahazar Ex.P3 and recovery mahazar Ex.P5 and also through the evidence of P.Ws.1 to 3 and 13. 13 It is the main contention of the learned counsel for the appellant that the appellant has no authority to issue the legal heir certificate. No doubt the appellant has no authority to issue the legal heir certificate, however, when the application made before the Tahsildar, report has to be called for from the RI and Village Administrative Officer, https://www.mhc.tn.gov.in/judis 12/18 Crl.A.No.741 of 2015 who are local men of the village to examine and submit reports to the Tahsildar, based on which, the Thasildar will issue the certificate. Even though the application has to be submitted before the Tahsildar, normally, in a Village, the illiterate village people will approach the Village Administrative Officer only for getting all those things. Therefore, merely the application has not been routed through the Tahsildar, it cannot be accepted that the defacto complainant never approached the appellant for getting legal heir certificate. Further, during cross examination of P.W.2 and P.W.3, no suggestion was put before them that they never approached the appellant for issuance of legal heir certificate. Therefore the contention of the appellant is not acceptable.
14 Further the learned counsel for the appellant contended that there are discrepancies regarding the time when the defacto complainant approached the appellant. According to this Court, on a careful reading of the evidence of the prosecution witness in toto, the contradictions pointed out by the learned counsel for the appellant are not material contradictions, which would go to the root of the case of the prosecution. Further more when an illiterate woman approaching the Vigilance Office, https://www.mhc.tn.gov.in/judis 13/18 Crl.A.No.741 of 2015 she may not noted the exact time and she could not remember the same and hence the accused cannot take advantage of the illiteracy and innocence of the defacto complainant.
15 The learned counsel contended that the defacto complainant deposed that she approached the Deputy Superintendent of Police, whereas P.W.13 deposed that the defacto complainant approached him. As already stated the defacto complainant, being an illiterate woman may not be in a position to state the exact rank and designation of the officer and hence the same may not be a ground to disbelieve the evidence of the defacto complainant.
16 As far as the contention regarding defect in sanction is concerned, no doubt it is the bounded duty of the prosecution before according sanction, it has to follow the procedures meticulously. But, P.W.1 has clearly stated that prosecution produced all the materials and after going through the entire materials only he accorded sanction to prosecute the appellant.
https://www.mhc.tn.gov.in/judis 14/18 Crl.A.No.741 of 2015 17 Further the fact remains that from the evidence of P.Ws.1, 2, 3 prior demand was proved by the prosecution and from the evidence of P.Ws.2 & 4 subsequent demand and acceptance was also proved by the prosecution. Finally from the evidence of P.Ws.4 and 13 prosecution has proved the recovery of tainted money from the appellant. From the evidence of above witnesses along with Exs.P3, 5, 11, 14 the Chemical Analysis Report prosecution has proved all the ingredients of Section 7 of the Act. Once prosecution proved the foundational facts of demand, acceptance and recovery, presumption under Section 20 of the Act will come into play and it is for the accused to rebut the presumption in the manner known to law. No doubt the accused need not rebut the presumption by let in any direct evidence, but the accused can always rebut the presumption through preponderance of probabilities. Even though the appellant tried to establish his defence by examining two witnesses D.W.1 and D.W.2 focusing on the previous enmity, but the same was not proved, however, according to this Court, he has not rebutted the presumption. The evidence of D.W.1 and D.W.2 are not sufficient to rebut the presumption.
18 There is no quarrel with the decisions referred to by the https://www.mhc.tn.gov.in/judis 15/18 Crl.A.No.741 of 2015 learned counsel for the appellant, but the facts and circumstances of those cases are distinguished from the present case on hand. As already stated sine qua non of Section 7 of the Act are proved through evidence of P.Ws.2, 3, 13, 14 and Exs.P3, 5, 11 and 14.
19 This Court, being an appellate Court, as a final Court of fact finding in this case, it has to necessarily and independently re-appreciate the entire evidence and give independent finding.
20 Accordingly, this Court, while re-appreciating the entire evidence does not find any perversity in appreciation of evidence by the Court below. Even though the learned counsel appearing for the appellant pointed out certain discrepancies, from the careful reading of the entire oral and documentary evidence, this Court finds those discrepancies and contradictions are not material contradictions. It is settled proposition of law that defect in investigation may not be a ground to disbelieve the evidence of the prosecution witnesses and vitiate the case of the defacto complainant and mere technicalities should not be allowed to stand in the way of administration of justice. Hence this Court does not find any merit in the appeal.
21 Accordingly, the criminal appeal stands dismissed. However, https://www.mhc.tn.gov.in/judis 16/18 Crl.A.No.741 of 2015 since the occurrence is of the year 1998 i.e. 25 years ago and now the age of the appellant is also above 60 years, there is mitigating circumstances to reduce the sentence of imprisonment alone. Hence in order to meet the ends of justice, the sentence of imprisonment of 5 years alone, awarded by the Court below for both the offences i.e. Section 7 and 13(2) r/w 13(1)(d) of the Act, are reduced to 3 years. The trial Court is directed to take steps to secure the custody of the appellant to undergo the remaining period of sentence, if any.
01.03.2023 Index: Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No cgi To
1. The Special Judge/Chief Judicial Magistrate, Namakkal.
2. The Inspector of Police, Vigilance and Anti Corruption Department, Salem at Namakkal.
3. The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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Crl.A.No.741 of
2015
P.VELMURUGAN, J.
cgi
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