Madras High Court
Unknown vs T.Selvaraj on 17 March, 2023
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 08.11.2022
Pronounced on : 17.03.2023
CORAM
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.A(MD)No.156 of 2017
State represented by
The Public Prosecutor,
High Court, Maduras-104
(Crime No.3 of 2013
of V & A.C., Nagercoil) : Appellant/Complainant
Vs.
T.Selvaraj,
Divisional Officer,
Fire and Rescue Service Department,
Kanyakumari Taluk at Nagercoil : Respondent/Accused
Prayer: Criminal Appeal filed under section 378(1)(b)
of the Criminal Procedure Code, to set aside the judgment
of acquittal passed by the Special Judge-cum-Chief Judicial
Magistrate Court, Nagercoil, in Special Case No.7 of 2014,
dated 13/04/2017.
For Appellant : Mr.S.Ravi
Additional Public Prosecutor
For Respondent : Mr.S.D.Venkateswaran
J U D G M E N T
This criminal appeal has been preferred by the State against the judgment of acquittal that has been passed by the the Special Judge-cum-Chief Judicial Magistrate Court, Nagercoil, in Special Case No.7 of 2014, dated 13/04/2017. https://www.mhc.tn.gov.in/judis 2
2.The case of the prosecution:-
PW2 is running a company called 'Crestech Engineering' dealing with fire extinguisher, parts, tools, etc., On contract basis. He used to install and fit the above said instruments and tools. A hospital called Holy Cross functioning in Vitturani Madam engaged him for the purpose of fitting the fire extinguisher, etc., The company owner by name Ranjithkumar came to Nagercoil and inspected the building. He was informed to get No Objection Certificate from the Fire Department. So he approached the accused person, who was working as Divisional Officer, on 12.04.2013 at about 05.00 p.m. Along with him, the above said Ranjith Kumar also came. Later on 23.04.2013 at 5.30 p.m., he approached the accused along with the requisition.
At that time he told that he must pay minimum of Rs. 30,000/-. He wanted to discuss the same with the hospital administration and Ranjith Kumar. So he returned and again on 24.04.2013 at about 6.30 p.m., approached the accused. He told him that payment of Rs.30,000/- may not be possible. But the accused insisted the payment of the above said amount. He obtained the phone number of PW2 and saved the same in his mobile phone. But, however, the name was mentioned as Danush. The accused also in turn shared his cellphone number with PW2. He returned stating that he will think it over. He worked for Rs.1.85 lakhs for the https://www.mhc.tn.gov.in/judis 3 above said sub-contract. So it was not possible for him to pay Rs.30,000/- as bribe. So he lodged a complaint on 25.04.2013 with the vigilance Department. On the basis of the above said complaint, the case was registered by P.W. 19, who was working as Inspector of police attached to the Vigilance Department in Crime No.3 of 2013 under Section 7 of the Prevention of Corruption Act and further processes as per the procedure was undertaken and he made a request to the TamilNadu Electricity Board Department to depute Officers to assist in the process of trap. In pursuance to the above said request at about 2.10 p.m., one Anis and Manoharan were deputed to attend his office. He introduced them to P.W.2. At that time, PW2 handed over Rs.30,000/- and currency note numbers were mentioned in the mahazar. As per the procedure Sodium Carbonate solution test was undertaken. The importance of the above said demo was explained to PW2 and the official witnesses. The currency notes that were handed over by PW2 was treated with Phenolphthalein powder and PW2 and the official witnesses have followed his instructions. He advised PW2 to hand over the above said money to the accused person, if that is demanded by him and make a signal. When all the procedure of pre-trap arrangement was over, the police team along with PW2 and the official witnesses went to the Collectorate Office, parked the vehicle in nearby place and https://www.mhc.tn.gov.in/judis 4 asked PW2 and official witnesses to go into the office of the accused. They were hiding in a nearby place. At about 7.45 p.m., PW2 and witnesses Anis and Manohar came out of the office and told him that the accused was not available.
3.So at his advice, PW2 contacted the accused through his mobile phone. He advised them to wait in the office. They were waiting till 08.05.p.m. But again they told him that the accused has not returned to the office. So they returned. He advised PW2 not to take the above said Rs. 30,000/- with his hands.
4.Again they were advised to come to the office on 26.04.2013 at about 10.00 a.m. And to show the above said events a mahazar was prepared between 8.20 p.m. to 8.45 p.m. In the mahazar PW2 and other witnesses were signed. On 26.04.2013 as advised at about 10.00 a.m. PW2 and other witnesses went to the office. PW19 enquired him about the money and PW2 told that he is keeping the same in his pocket.
5.Again he advised them to go to the office of the accused. Again he prepared a mahazar. At 11.30 a.m., they started from the office and PW2 and other witnesses were advised to go to the office of the accused and follow his instructions.
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6.As advised PW19, PW2 and other witnesses went inside the office of the accused and at about 01.00 p.m., both of them were returned and signal was made by PW2, as instructed. At that time, PW2 informed him that accused demanded the above said Rs.30,000/- and accepted the same. That was corroborated by the above said witness Anis. The police team along with PW2 went inside the office of the accused. Accused was identified by PW2. PW2 was directed to wait outside and Sodium Carbonate solution was prepared and as per the procedure the accused was advised to wash his hands in separate solutions. They turned pink colour. So both the samples were collected in separate containers, labelled and sealed, in which, PW19 and other witnesses signed. He enquired about the cadre of the accused. He told them he is a Group-B Officer. So he informed the same to the Deputy Superintendent of Police and in the meantime, he prepared a mahazar. At about 2.45 p.m., the Deputy Superintendent of Police arrived in the office and made further enquiry and investigation. On enquiry, the accused handed over Rs.30,000/- which was received from PW2. The currency notes number that was mentioned in the mahazar was compared with that of the currency notes recovered from the accused. They found to be tallied. The amount was recovered. The file which contains the above said amount was also dipped in the sodium carbonate solution. It also https://www.mhc.tn.gov.in/judis 6 turned into pink in colour. That sample was collected in another container, labelled and sealed. And further processes were undertaken as per the procedure. The accused handed over the mobile phone which contains two sim cards. That was also verified. The further investigation was undertaken as stated above by PW20, the Deputy Superintendent of Police. Recording the statement of witnesses, search was also made in the residence of the accused and no recovery was made. Later further investigation was undertaken by PW21 and he sent the material objects for chemical examination and recorded the statement of other witnesses. After getting sanction order from the competent authority, he filed the final report on 28.02.2014 charging the accused that he has committed the offences punishable under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
7.PW2, as I mentioned earlier is the defacto complainant. PW3 was working as Officer in Executive Engineer's Office, Nagercoil. He corroborated the PW2 and PW19 in material particulars with regard to the attending the office of PW19 during the pre-trap arrangement, actual trap, etc., facts. PW4 was the Executive Engineer, deputed PW3 for assisting the Vigilance Department. PW5 is another official witness who was deputed to assist the Vigilance https://www.mhc.tn.gov.in/judis 7 Department. He also corroborated PW2 and PW19 in material particulars with regard to the pre-trap arrangement, actual trap and etc., facts.
8.PW6 is not a material witness. PW7 was running a company called “Barath Safety Engineering”. He was given a contract by Holy Cross hospital for fitting the fire extinguisher equipment. He in turn sub-contracted to Danush Enterprises. He corroborated PW2 with regard to the above work assignment. PW8 was the Administrator of Holy Cross hospital, Nagercoil. He has spoken about giving of contract to PW7, who in-turn sub-contracted the same to PW2. PW2 carried out the work. PW9 spoken about the letter forwarded to PW1. PW10 was the successor of the accused and he issued NO Objection Certificate to the Holy Cross hospital subsequent to the above said occurrence. PW11 has spoken about the work manual of the fire Department. He has spoken about the events that took place on the date of trap and earlier day occurrence. PW12 was working as Superintendent in Kaniyakumari Division Fire Department and he is not a material witnesses. PW13 has spoken about the office Car that was used by the accused person and he has spoken about the events took place on 25.04.2013 and 23.04.2013 and PW14 was working as Computer Operator in the fire Department. He spoken about the events that took https://www.mhc.tn.gov.in/judis 8 place on 24.04.2013 and the events that took place during the trap proceedings. PW15 has spoken about the requirements to be fulfilled to the public building as per the Tamil Nadu Country Planning Act, 1971. And PW16 has spoken about the calls that were received and attended in the mobile phones pertaining to the accused and PW2. PW17 as mentioned above is running Danush Enterprises, who sub- contracted the work to PW2 and has spoken about the occurrence and approaching the accused person for No Objection Certificate and etc., facts. PW18, who is the Scientific Assistant working in Chennai Forensic Laboratory. He has spoken about the examination of the material objections that were submitted to him for analysis.
9.With these, prosecution evidence was over and accused was put to section 313 Cr.P.C questioning. He denied the truth of facts spoken by the prosecution witnesses. On the side of the accused none was examined, but one document was marked as Ex.B1.
10.At the conclusion of the trial, the trial Court found that the guilt against the accused was not proved and accordingly, acquitted the accused.
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11.Challenging the above said acquittal, this appeal has been preferred by the State.
12.Heard both sides.
13.It is a case of acquittal.
14.`The principle of law is well settled that merely because a different view of the evidence, is possible, minds differ as rivers differ-you cannot cancel a finding against guilt`.
-Justice V.R.Krishna Iyer, in Khem Karan and others Vs. The State of U.P and others (AIR 1954 SC 1567).
15.But however, a rider has been made by the Hon'ble Supreme Court in the following terms:- But the appellate Court is untrammeled in its power to re-evaluate the evidence bearing in mind the seriousness of overthrowing an acquittal once recorded.
16.The Constitution Bench judgment of the Hon'ble Supreme Court in the case of Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore, Cochin (A.I.R. 1952.S.C 478) is relevant:-
https://www.mhc.tn.gov.in/judis 10 “The High Court, even though it is hearing an appeal from an order of acquittal, has full powers to review the entire evidence that the acquittal order should be set aside. In exercising these powers the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Court as to the credibility of witnesses; (2)presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial; (3)the right of the accused to the benefit of any doubt; (4)the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. AIR 1934 PC 227(2).
17.In the light of the above said settled law, in simple terms we can go the judgment of the subsequent cases.
18.Let me extract the principal that has been laid by the Hon'ble Supreme Court in the case of N.Vijayakumar Vs. State of Tamil Nadu (AIR-2021-SC-766). In the above said case, the Hon'ble Supreme Court has also relied upon the earlier judgment in the case of Chandrappa and others Vs. State of Karnataka [(2007)4 SCC 415].
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19.In that judgment, the Hon'be Supreme court has extensively extracted the principle, that was stated in para 42 as under:-.
“42.From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge :
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double https://www.mhc.tn.gov.in/judis 12 presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” Further in the judgment in the case of Murugesan (supra) relied on by the learned senior counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court.”
20.Further, the Hon'ble Supreme court was also referring the judgment in the case of Murugesan and others [(2012)10 SCC 383], In para 21 after referring to the above said judgment the Hon'ble Supreme court extracted the para 32, 33, 34 and 35 in Murugesan's case which may be extracted for better appreciation hereunder:-
“32. In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of https://www.mhc.tn.gov.in/judis 13 the appellant-accused, on the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression “possible view” is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.
33.The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms:
“erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral.
possible.—(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.” https://www.mhc.tn.gov.in/judis 14
34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.
35.A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefor, relatable to the evidence and materials on record, are disclosed any further https://www.mhc.tn.gov.in/judis 15 scrutiny in exercise of the power under Section 378 CrPC was not called for.”
21.In the light of the above said settled position of law, I need not load this judgment by extensively citing the judgment that was filed in the compilation.
22.Now the point, which arises for consideration is, in the light of the above said observation of the Hon'ble Supreme Court, whether the conclusion or reasoning assigned by the trial court in acquitting the accused is a possible view and whether it is based upon the relevant consideration and not perverse in nature. If two views are possible, the appellate court cannot take a different view from that of the trial court. The reason is that the appellate court cannot supplant its own view in the place of the trial court.
23.Before we go into the disputed factual aspect, let us bear in mind the background facts.
24.It is not denied that the accused was working as District Officer, Fire and Rescue Service Department during the relevant time. At that time, Holy Cross Hospital was constructed and for commencing and functioning, it required 'No Objection Certificate' from the Fire Department. Putting up of fire equipment was undertaken on sub-contract basis by PW2.
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25.Originally, the above said contract was given to one Bharath Safety Engineers, which is owned by one K.Saravanan, who was examined as PW7. Later, the above said contract was given to PW2 as sub-contract. This fact is spoken by PW8, who was working as Administrator in the Holy Cross Hospital, Nagercoil. He has stated that they made a request under Ex.P3. The work was undertaken by PW2. But with regard to the sub-contract work, no documentary evidence has been produced by him before the Investigating Officer. So from the evidence of PW8, it is seen that the work was completed and request was also made for getting 'No Objection Certificate' by the Fire Department.
26.Now coming back to Para 14, the Hon'ble Supreme Court in the above said reported case in the case of Khem Karan and others Vs. The State of U.P and others has also given guidelines to the appellate court, while dealing with the appeal against the acquittal matters.
`...Neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal, of an accused person, if there is otherwise fairly credible testimony. If a trial court's judgment verges on the perverse, the appellate court has a https://www.mhc.tn.gov.in/judis 17 duty to see the evaluation right and that is about all that has happened in this case.”
27.The accused would rely upon the following judgments on this point:-
(1)Kali Ram Vs. State of Himachal
Pradesh (AIR 1972 SC 2773);
(2)Kalyan Singh Vs. State of M.P
[(2006)13 SCC 303];
(3)Ganapathi Sanya Niak Vs. State of
Karnataka [(2007)8 SCC 309];
(4)C.M.Girish Babu Vs. CBI, Cochin,
High Court of Kerala [(2009)3 SCC 779];
(5)State of Kerala and another Vs.
C.P.Rao [(2011)6 SCC 450];
(6)Khaleel Ahmed Vs. State of
Karnataka [(2015)16 SCC 350];
28.Since, I have elabortely extracted the relevent
observations, we need not go into all the observations that have been made in the above said indepenent judgments. Suffice to say that all the above said basic principles must be born in mind, while making discussion further. https://www.mhc.tn.gov.in/judis 18
29.With this in mind, now let us take the judgment of the trial court.
(i)The trial court doubted the prosecution version as to the demand that was made by the accused officer at the first instance namely on 23/04/2013, since request under Ex.P3 was not handed over to the accused officer.
(ii)It doubted the work that was undertaken by PW2, since no documentary evidence, except the oral evidence for the sub contract work.
(iii)The alleged demand that was made by the accused persons on 24/04/2013 was also doubted in view of the contradictions in the prosecution witnesses;
(iv)With regard to the trap event, there was no independent witness apart from PW2 and PW3; they are interested witnesses. While discussing the reliability of PW2, the trial court undertook novel method by contradicting the evidence before the court with that of the statement recorded under section 161 Cr.P.C. This has been heavily objected by the learned Additional Public Prosecutor.
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(v)The motive also accepted by the trial court, on the basis of Ex.D1. It was also found that beyond the complaint, the trap, etc., PW7 played a vital role because of the enmity.
(vi)It accepted the defence theory that the tainted money was put in the file belongs to PW2 and that was also placed in the table.
(vii)The colour of the sodium carbonate solution even during the course of trial was taken into account to doubt the prosecution case.
(viii)The failure on the part of the Investigating Officer to record the statement of the accused was also found to be fatal.
(x)The sketch was not drawn showing the position of the witnesses, accused, etc.
30.Before starting discussion with regard to the evidence on record, the judgment cited by the accused may be breifly stated herein, which have formaluted the basic principles with regard to the appreciation of the evidence, in Suraj Mal Vs. State (Delhi Administration) [(1979)4 SCC https://www.mhc.tn.gov.in/judis 20 725]; Wherein according to the accused, inconsistent sttement of the witnesses is sufficient to discard them.
31.Now the evidence:-
PW2 has stated that on 12/04/2013 along with Rajeeth Kumar, he visited the accused office and made request. At that time, the accused officer asked him to come and meet him, if any necessity arises; on 23/04/2013, at about 05.30 pm, he again met the accused officer and handed over the request. At that time, the accused officer demanded Rs. 30,000/- as bribe. He returned back for communicating the same to the Hospital administration and Rajeeth Kumar, again, on 24/04/2013 at about 06.30 pm, met him and informed him that he cannot pay Rs.30,000/-. At that time the accused received his phone number and stored in his phone as Dhanush. Since, he found it is difficult to pay the money, he lodged a complaint and further process was undertaken.
32.Now the learned Additional Public Prosecutor would submit that from the evidence of PW2, initial demand is supported by the complaint. In the complaint, it has been stated that on 12/04/2013 along with Rajeeth, he approached the accused officer. At that time, there was no demand. https://www.mhc.tn.gov.in/judis 21 Only, on 23/04/2013, the above said demand of Rs. 30,000/- was made by the accused officer.
33.By relying upon this, the learned Additional Public Prosecutor would submit that initial demand has also been properly established by way of this complaint.
34.Now let us go to the findings of the trial court.
35.The trial court has found that there is nothing mentioned in the complaint about the giving of the application for 'No Objection Certificate' to the accused officer.
36.The learned Additional Public Prosecutor would submit that it is quite contrary to the evidence on record. He would say that he handed over the above said request to the accused officer and that was marked as Ex.P3.
37.No doubt that handing over of the request is not mentioned in the complaint. It has been simply stated that on 23/04/2013, he approached the accused officer and conversed and again, second attempt was made, on 24/04/2013 and at about 06.30 pm, on that day also, the above said payment was also insisted. But, there is nothing mentioned with regard to the handing over of the request. https://www.mhc.tn.gov.in/judis 22
38.In the light of the above said findings and factual aspect, this court made an enquiry to the learned Additional Public Prosecutor, from whom Ex.P3 was recovered.
39.PW21 would say that in the office of the accused, no such application was pending, on 26/04/2013. But Ex.P3 is, dated 23/04/2013.
40.As per the evidence of PW11, the above said application was received by the office, on 10/05/2013 and joint inspection was made on 14/05/2013 and on 15/05/2013 'No Objection Certificate' was issued. So it is seen that on the alleged date of demand or even trap, Ex.P3 was not available, either with the accused officer or in the office of the accused. So this has been pointed out by the trial court to disbelieve the very incident of the visit, request and initial demand made by the accused officer.
41.In response to this issue, the learned Additional Public Prosecutor would submit that in his evidence, PW2 has given explanation to the effect that after receiving the above said 'No Objection Certificate' request. The accused perused the same and made demand of Rs.30,000/- for issuing. But, it has not been stated by him that the above https://www.mhc.tn.gov.in/judis 23 said application was returned back to him, demanding the bribe amount. In the charge, it has been stated that the accused officer refused to receive the application and demanded bribe amount of Rs.30,000/-.
42.As pointed out by the trial court, the basis for the prosecution case is Ex.P3. But in the complaint, it has been no-where stated by PW2 that the accused officer after receiving and perusing the request, demanded money and returned the request to him. If it is so, he would have annexed the returned application along with the complaint itself. But, it is not the case of the prosecution.
43.The learned Additional Public Prosecutor would submit that there is no denial on the part of the accused officer about the visit of PW2 on two dates. But during the course of examination, it was denied by the accused officer that on 23/04/2013, 24/04/2013 and 25/04/2013, the meeting happened.
44.The learned counsel appearing for the respondent would also heavily rely upon the impossibility and improbability to have contacted the accused officer with regard to the above said request; he would list out the dates and events and improbability of handing over the work to PW2, etc., facts.
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45.It is the case of the accused to the effect that originally, some request was made by the above said Saravanan for recognizing him, as authorised licensee for Nagercoil area for carrying out the said fitting up the fire equipment; it was rejected by the District Collector on the recommendation that was made by the accused officer; These documents are available on record; To wreck vengeance only, the above said Saravanan used PW2 to arrange the trap and put the money in a file kept in the table of the accused officer without his knowledge.
46.All these stories cannot be believed. Absolutely, there is no possibility for such a motive also. It is found to be too remote and too unbelievable one also. But the fact remains that the basic evidence is not available, either in the hands of the accused officer or in the office of the accused officer as stated earlier. These assume importance. When the basic document is not available, then the very foundation case of the prosecution with regard to the demand has to be looked with suspicion.
47.Now in the above said background, let us proceed further.
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48.The further evidence with regard to the pre-trap arrangement, PW2, PW3 and the trap laying officer evidences are available.
49.PW2 would say that at about 02.00 pm, FIR was registered, on 25/04/2013 and the complaint was given by him at about 11.30 am. So during the course of cross examination, it was suggested to PW2 that on 25/04/2013, he phoned the accused officer, but he did not pick up the phone. But why the suggestion was made is not understandable. On 25/04/2013 itself, the pre-trap was over, so the question of calling the accused officer, on 25/04/2013 at about 07.15 pm, is not understandable.
50.Now let us go to the demand, that was allegedly made by the accused officer, before we go into the trap process.
51.The initial demand was made, on 23/04/2013. That was repeated on 24/04/2013. He would further say that initial demand was made on 23/04/2013 itself and he intimated the same to Rajeeth Kumar.
52.Now let us go to the evidence of Saravanan. But PW7 has not stated anything about the intimation with https://www.mhc.tn.gov.in/judis 26 regard to the demand of bribe made by the accused officer. Similarly, the above said demand was not intimated to PW8, who is the administrator of the above said hospital. Regarding this, the above said Rajeeth Kumar has not stated anything about the above said intimation. So as to why, the above said non-intimation occurred is not clear on record. Because, even as per the evidence of PW2 and the prosecution, he is only the sub- contractor. He ought to have informed the alleged demand of bribe, either to the original contractor-PW17 or PW7 Saravanan. But neither of them have been informed by PW2.
53.It is also seen that PW2 is the third contractor. So the above said demand of bribe ought to have been informed to the original contractor or the Hospital administration. But that was not done. No reason was stated. This was taken into account by the trial court.
54.The next point is whether the above said initial demand on two days have been corroborated even by the circumstantial evidence.
55.PW3 was working as Assistant in the office of accused officer. He has stated that on 23/04/2013 at about 05.30 pm, one person came to see the accused on behalf of https://www.mhc.tn.gov.in/judis 27 Holy Cross Hospital for getting No Objection Certificate. He directed him to contact one Saravanan, who is the Assistant Fire Officer. He met the Sarvanan and later, went to see the accused officer. On 24/04/2013, it was a Government holiday. So he did not attend the office. On 25/04/2013 at about 06.30 pm, the above said person came to the office along with other person. At that time, the accused officer was not available in the office. On the next day, the above said trap occurrence took place.
56.PW14 was the Computer Operator in the office of the accused. He would say that on 24/04/2013, a person came, met the accused officer and went away. But he has given wrong information with regard to the date of trap. So from the evidence of PW14, it is seen that on two days, a person came to the accused office and met him. But he was unable to identify the person, who visited the office. This would be pointed out by the accused that on 24/04/2013, it was a holiday and there is no evidence on record to say that the accused officer attended the office on that day. The driver of the official vehicle used by the accused officer, was not examined and no log book was also seized.
57.By pointing out this, it has been submitted by the accused officer that the second demand was also not https://www.mhc.tn.gov.in/judis 28 established, so also the first demand. So with regard to the above said initial demand, on 23/04/2013 and 24/04/2013, except the oral evidence of PW2, no other direct or corroborative evidences are available. More particularly, the non-intimation with regard to the demand of bribe to the primary contractor or to the sub-contractor or to the Hospital owner is not properly explained by the prosecution.
58.Now let us go to the trap event. On this, heavy objection was made by the accused officer to the effect that he is a Group-B officer. So the Inspector of Police attached to the Vigilance Department is not the competent person to arrange trap DSP alone is competent to register the case, under take the process of pre-trap and trap, etc. On that account also, clarification was sought from the learned Additional Public Prosecutor. He would submit that investigation has been undertaken by the DSP and only trap arrangement was made by the Inspector of Police. Till, the accused was examined by the Trap Laying Officer, he was not aware of the cadre which the accused officer belongs.
59.But however, the learned counsel appearing for the respondent would submit that even as per the evidence of the trap laying officer, he ascertained the antecedent of https://www.mhc.tn.gov.in/judis 29 the accused; Had it been done, it would have been brought to his notice; But that was not properly ascertained; So, the very trap, filing of the FIR, trap arrangement and trap itself are vitiated.
60.But, I am unable to agree this line of argument. Probably the accused officer may be the Grade-B officer, but the entire action that was initiated by the trap laying officer, cannot be assailed, unless great prejudice was caused to the accused. But no such prejudice has been shown by him. So this ground is not available to the accused.
61.In the written argument, it has been stated that as per the instructions mentioned in 41(3) of the Vigilance Manual, before lodging the trap in respect of Grade-A-B officers, the Inspector of Police, if any necessity arises must get permission from the Director of Vigilance and Anti Corruption. But he cannot exercise the power of arrest. But as mentioned earlier, till the accused officer was examined by the trap laying officer his cadre was not known to him. He did not make any arrest. The arrest was made only by the Deputy Superintendent of Police. So as mentioned earlier, because of the non observation of the condition no prejudice was also caused to the accused person. So this ground is not available to him.
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62.From the evidence of PW2 as well as the trap laying officer, the first attempt failed, on 25/04/2013. Even though, PW2 and PW3 were awaiting in the office of the accused till 08.05 pm, the accused did not turn up, they returned to the Vigilance Office at about 08.15 am and they were asked to come in the next day morning. On 26/04/2013, at about 10.00 am, again they appeared before the Vigilance Officials.
63.With regard to the event, that took place, on 25/04/2013, a mahazar was prepared and the tainted money was asked to be kept by PW2 and bring it on the next day.
64.This procedure adopted by the trap laying officer was questioned by me as to whether it is permissible. No proper explanation has been offered by the prosecution on that. Usually, if the attempt fails the tainted money, which treated with phenophthalein powder used to be received by the trap laying officer and keep it in the chest box for further process. This has been omitted to be undertaken by the trap laying officer.
65.So with these background, let us go to the events. PW2 would say that at about 11.45 am, on 26/04/2013 again they visited the office of the accused officer. At that https://www.mhc.tn.gov.in/judis 31 time, he was available. He demanded whether he brought the money; He replied in affirmative and handed over the money, the accused received the same, counted and put the same in a plastic file which was kept in the table; Later that file was put by the accused in the drawer; The above said file is also recovered and marked as MO2; later on getting the signal from him, the police team entered into the office. So from his evidence, it is seen that money was given by him was accepted and put in an orange plastic file and that was also kept in the drawer.
66.The learned Additional Public Prosecutor would submit that this piece of evidence can be relied upon, since it has been corroborated by the evidence of PW3.
67.Now let us go to the evidence of PW3 on this aspect.
68.On 26/04/2013 at about 10.00 am along with PW2 and Manoharan, went to the office of the accused; Accused enquired whether PW2 brought Rs.30,000/-, that was demanded by him; It was given by PW2, the accused counted and put the same in a plastic file. So from the evidence of PW3, demand and acceptance is also proved, contended by the learned Additional Public Prosecutor. Nothing is brought on https://www.mhc.tn.gov.in/judis 32 record, to discard this evidence, so the contention on the part of the accused officer that PW2 put the above said money inside the plastic file without the knowledge of the accused officer, placed the same in the table, is not probabilised.
69.For that purpose, the accused would rely upon the evidence of PW2. He would say that at the time of entering into the office of the accused, he was having one main file. This is pointed out by the accused that his defence, the money was put in the plastic file, which was in table, is probabilised.
70.Let us come to the evidence of PW3 on the file issue. He would say that at the time, they found a plastic file in the table of the accused along with other files. According to him, only in the above said file, the tainted money was put by the accused. So according to him, the orange plastic file belongs to the accused officer.
71.PW11-B.Saravana Babu would say that he was working in the above said office at the relevant time and would say that the above said orange plastic file belongs to the accused. The accused used the orange colour plastic file for his personal purpose. He also identified the above said plastic file, which was marked as MO2.
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72.Even though, much argument has been advanced by the accused officer, over the above said ownership of the plastic file, but no suggestion was made to PW2 to the effect MO2 belongs to him. PW2 has not admitted that MO2 belongs to them. In the absence of any such explanation sought from PW2 during the course of his cross examination, belated contention cannot be accepted. So the contention that PW2 put the tainted money without the knowledge of the accused officer in the orange colour file, cannot be accepted and rejected outright. So the defence that has been put by the accused is beyond the probability. But one important factor, which has been brought to the notice is that sodium carbonate solution was poured on the file. But the file was not inserted or dipped in the sodium carbonate solution. It was spoken by PW3 himself. He would also admit that the above said solution was not collected in a container. So the trap laying officer ought to have dipped the file in the sodium carbonate solution. Even if it was poured in the file, the solution might have been collected in a container. But that was not done. So the important aspect has escaped the notice not only during trial, but also in the prosecution itself.
73.PW3 has stated that after the trap, he would say that after the above said sodium bicarbonate test, it came https://www.mhc.tn.gov.in/judis 34 to know that the accused officer belongs to B Grade. So the Deputy Superintendent of Police came to the office at 02.45 pm and he prepared the mahazar between 04.30 and 4.45 pm. He got the information form them with regard to the event. At about 05.30 pm, the accused was arrested and the money was handed over by the accused to the Deputy Superintendent of Police. So with regard to the above said issue also, the evidences are cogent.
74.The accused would rely upon the following judgments on the point now proposed to discuss. According to him, from the evidence on record, conspiracy was hatched to implicate and trap this accused. According to him, if such an evidence is brought on record, this must be taken into account in favour of the accused. For that purpose, he would rely upon the judgment of the Hon'ble Supreme Court reported in the case of Ramjanam Singh Vs. The State of Bihar (1956 SCC 643).
75.Now we will see whether there was any criminal conspiracy to implicate this petitioner, in the light of the evidence on record.
76.At this stage, the accused officer would submit that soon-after the above said arrest, statement was https://www.mhc.tn.gov.in/judis 35 recorded from him by getting explanation with regard to the above said money; But that was not sent to the court or along with the other documents. For that purpose, they would rely upon the evidence of PW21, who was the final Investigating officer. He would say that the Deputy Superintendent of Police arrested the accused, recorded the statement and there is also mention in the Mahazar. But, as mentioned by the accused, that was not brought before the trial court along with the records.
77.In the written argument much arguments and points have been raised with regard to the non compliance of the manual, issued by the Department for the officers to follow. But the non observation of such instructions, unless as pointed out earlier much miscarriage of justice or prejudice is shown, it cannot be taken into account, vitiating the entire process.
78.PW19 would say that only explanation was sought from the accused officer and no statement was recorded. PW20-Salvan Durai, the Deputy Superintendent of Police would say that on enquiry, the accused officer handed over the file and the money. But nowhere, he has stated that he recorded the statement of the accused in a written form. He would say that he did not record the statement of the https://www.mhc.tn.gov.in/judis 36 accused. But whether the statement was recorded by the Inspector of police or not is not known to him.
79.In the light of the above said contradictory version, now let us to to the mahazar, that was prepared at the time of trap. Neither in Ex.P10 nor Ex.P11, nothing has been stated with regard to the recording of the statement of the accused. So there is doubt, whether the statement of the accused officer has been recorded or not.
80.The learned counsel appearing for the accused would submit that absolutely, there is no necessity for PW2 to obtain 'No Objection Certificate' for functioning the Hospitals. For that purpose, he would say that absolutely, no such requirement is mentioned in the Tamil Nadu Fire Manual with regard to the usage and Maintenance of the building under the provisions of the Multi-Storied and Public Building Rules, 1973. The above said Government order and rules are marked as Ex.P24 on the side of the prosecution. It is also subjected to the provisions of the Tamil Nadu Town and Country Planning Act, 1971 and Rules. So the contention on the part of the accused officer that there is no necessity for the Holy Cross Hospital to get No Objection Certificate for commencing the hospital will not lie. The prosecution would also rely upon the earlier https://www.mhc.tn.gov.in/judis 37 similar No Objection Certificate, which was issued by the accused officer in favour of another hospital called BMC Medical Care Hospital. The above said order is also marked on the side of the prosecution as Ex.P19. So this contention cannot be accepted since it is an after thought. He has not disowned the document also. So this contention also cannot be accepted. The accused officer would contend that there was a strong motive between himself and PW19
81.Now let us go to the trap event occurrence. As mentioned earlier, PW2 and PW3 were cogent in their evidence with regard to handing over of the money, receiving the same by the accused and putting up of the same in MO2 by the accused. This portion of evidence cannot be discarded on any ground. The events have also supported the above said view, since the hands of the accused officer turned pink, when he was subjected to sodium carbonate solution test, a contention has been raised by the accused officer to the effect that at the time leaving the office, PW2 shook hands with him. The meaning of the argument is that already PW2 hands had touched the tainted currency note. So with the above said hands only he shook hands with the accused, that was the reason the said solution turned pink. Even if we take this contention, there is no reason for the left hand to turn pink. Because only right hand https://www.mhc.tn.gov.in/judis 38 used for shook hands. So this contention cannot be accepted. Even though sodium carbonate solution test which was undertaken with regard to the file found fault by this court, with regard to the above said receiving of the money, putting the same in MO2 has been clearly established by the prosecution.Now let us turn the evidence of PW19; It was suggested to him that the second complaint against the staff of the Fire Department received by the Vigilance Department and the above said enquiry was forwarded to the accused person and the Vigilance Department forced the accused person to conclude the enquiry against them; That was not accepted by the accused officer. Because of the above said enmity only, the present case has been foisted. But absolutely this is not supported by any documentary or circumstantial evidence.
82.With regard to the sanction also, objection was raised by the accused officer. During the course of section 313 Cr.P.C questioning, he has stated that without perusing the proper Vigilance Manual, PW1 has given the sanction.
83.Now let us go to the evidence of PW1. Only gentle question has been asked with regard to the requirement of the Hospital for getting 'No Objection Certificate' and perusal of the records, etc., facts. I find no ground to https://www.mhc.tn.gov.in/judis 39 say that without application of mind, the above said sanction order was issued. The contention that no witness was examined or available cannot also be taken into account. Since it is a trap proceedings, no independent witness can be expected to be available. It is also the contention that as per the case of the prosecution, four bottle containing sodium carbonate solution samples were collected and only three were sent to the court. In Ex.P31, there were some corrections. I have read over the above said in the earlier discussion portion of the order also. It need not be given any importance, since it has been established that the accused person both hands turned pink when he dipped the hands in the sodium carbonate solution.
84.So, the probable defence, that was taken by the accused as mentioned earlier is too remote to accept. So the contention is rejected outright.
85.Now the next question is whether it will amount to acceptance of bribe for doing his legal duty.
86.The learned counsel appearing for the respondent would submit that since initial demand was not established by the prosecution, the alleged demand on the date of the trap itself must also fail.
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87.Reading of the evidence of PW2 and PW3 shows that enquiry was made by the accused officer as to whether he has brought money that was demanded by him. So whether this will satisfy the requirement of the demand, is the question.
88.But the experience of this court shows that in a mechanical and routine manner, whenever trap case is tried, the witnesses used to depose that when they approached the accused person, they made enquiry, whether they brought money. This is the usual and routine evidence in the trap matters. So I am of the considered view that it should not be taken as proof of demand on the trap day itself. Even, if we take that enquiry was made by the accused officer with regard to the fact whether he brought money, demanded by him, when the initial demand is not proved, then the enquiry made by the accused officer will not come under the definition of demand.
89.On this point, the prosecution has not established the initial demand as well as demand on that same day of trap. But as mentioned earlier, receiving of money has been established by the prosecution beyond all reasonable doubt. https://www.mhc.tn.gov.in/judis 41
90.The accused would rely upon various judgments on this point. There must be clear evidence on record to show the initial demand and acceptance of money. Mere recovery of the tainted money is not sufficient enough to hold the accused guilty. For that proposition, he would rely upon the following judgments:-
(1)State of Punjab Vs. Madan MohanLal Verma [(2013)14 SCC 153.
(2)G.V.Nanjundiah Vs. State (Delhi Administration (1987 (Supp) SCC 266).
91.In all these matters, it has been pointed out that demand and acceptance must be proved beyond all reasonable doubt. Similarly, it has been held in the above said cases that section 20 of the Prevention of Corruption Act will apply when foundation basic facts were brought on record by the prosecution, then only the accused can discharge the burden, either by direct or by circumstantial evidence to bring on record a resonable probability. But the prosecution must prove the same beyond all reasonable doubt. There can be no second opinion on the proposition of law. With this, we will go further.
92.The next question is whether receiving and accepting money, is illegal gratification as per the https://www.mhc.tn.gov.in/judis 42 provision of the Act. There is a world of difference between the terms 'receiving' and 'accepting'. The difference has been more or less well settled. This court need not repeat the very same things. There is difference between section 7 and 13(1)(d) of the Prevention Corruption Act. In section 13(1)(d) of the Act, the word 'accept' is not found place. But whereas this is found place in section 7 of the Prevention of Corruption Act 1988.
93.Here, from the facts narrated above, it is established on the side of the prosecution that the accused officer accepted the money, which he himself knew that it is otherwise than legal charges. It is not even the case of the accused officer that the money is legal charge meant for issuing 'No Objection Certificate'. The contention on the part of the accused is that it was stealthily put in the file as mentioned earlier, is beyond the probability. So, I am of the considered view that the accused officer has committed the offence under section 7 of the Act, though not under section 13(1)(d) of the Prevention of Corruption Act, since the demand is a pre-condition for attracting section 13(1)(d) of the Act, which is not established by the prosecution.
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94.For the above said reasons, the judgment of acquittal that has been rendered by the trial court is found to be totally perverse and does not satisfy the conscience of this court at all. Hence, the above said reversal findings.
95.Now coming to the sentence portion, Rs.30,000/- has been accepted by the accused knowningly that it is a bribe amount. But however, considering the fact that the crime is of the year 2013, the trial commenced in 2014 and concluded in 2017. The appeal preferred by the State in 2017 and the judgment is rendered in 2023, now 10 years lapsed. In the above said circumstances, imposition of one year rigirous imprisonment will meet the ends of justice. He is sentened to undergo one year rigirous imprisonment for the offence punishable under section 7 of the Prevention of Corruption Act, with fine of Rs.10,000/-, in default, he has to undergo one month simple imprisonment. The trial court is directed to issue warrant to the respondent, secure him and commit him to prison for serving the sentence period. The remand period if any shall be given set off under section 428 Cr.P.C https://www.mhc.tn.gov.in/judis 44
96.Accordingly, this criminal appeal stands partly allowed to the extent noted above.
17/03/2023 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order TM/er To,
1.The Special Judge/Chief Judicial Magistrate, Theni.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 45 G.ILANGOVAN,J., TM/er Crl.A(MD)No.156 of 2017 17/03/2023 https://www.mhc.tn.gov.in/judis 46 https://www.mhc.tn.gov.in/judis