Madras High Court
M. Srinivasan vs State Through on 17 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No. 183 of 2012
M. Srinivasan .. Appellant/Sole Accused
-Versus-
State through
The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Tiruchirapalli,
[in Crime No.29 of 2009] ... Respondent/Complainant
Appeal filed under Section 374 of Code of Criminal
Procedure, against the Judgment and Conviction dated 31.07.2012
in Special Case No.9 of 2011, passed by the Special Court for trial
of Cases under Prevention of Corruption Act, Tiruchirapalli.
For Appellant : Mr.T. Antony Arulraj
For Respondent : Mr.K.K. Ramakrishnan,
Additional Public Prosecutor
***
JUDGMENT
The sole accused in Special Case No.9 of 2011 on the file of the Special Court for trial of Cases under Prevention of Corruption Act, Tiruchirapalli, is the appellant herein. He stood http://www.judis.nic.in 2 charged for the offences under Sections 7 & 13(2) r/w 13(1)(d) of The Prevention of Corruption Act. When the appellant was questioned as to the charges, he pleaded not guilty and therefore, he was put on trial. The learned Special Judge, after full-fledged trial, found the appellant guilty for the offences under Sections 7 and 13(2) r/w 13(1)(d) of The Prevention of Corruption, 1988. The appellant was accordingly convicted and sentenced to undergo rigorous imprisonment for One year and to pay a fine of Rs.2500/- in default Simple imprisonment for One month for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.5000/-in default Simple Imprisonment for 3 months under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and ordered the above said sentences shall run concurrently. Challenging the above said judgment of conviction and sentence, the appellant is before this court with this criminal appeal.
2. The case of the prosecution is as follows :
The appellant was serving as Firka Surveyor,
Peruvalappur Firka, Taluk Office, Lalgudi, Trichy District from
01.07.2006 to 08.10.2009. The defacto complainant/P.W.2/Rasu http://www.judis.nic.in 3 was residing at Padalur, Periyar Nagar, Kunnam Taluk, Perambalur District. He is an agriculturist and he owned lands about 6 acres in Survey No.550/1 and 560/2 at Neikkulam Village and he also wanted to give the lands to his two sons viz, Anbazhagan and Rajesh during his life time itself and hence he submitted an application to the Taluk Office under Ex.P.3/Requisition petition during July 2009 and the entire file relating to that application/ExP.2. The challan for payment of Rs.80/-for Ex.P.3 is Ex.D.1. Thereafter, P.W.2 was instructed to execute a partition deed so as to do the same. And hence, on 19.08.2009, P.W.2 had executed a settlement deeds in respect of the above said lands and the same were registered at the office of the Sub-Registrar, Chettikkulam and he has settled the said lands to his two sons and has given 20 cents to his elder son more than the land given to the younger son. P.W.2 again submitted an application under Ex.P.7/Requisition on 09.09.2009 and the entire file relating to that applications is Ex.P.8 and paid a sum of Rs.80/- through chalan and enclosed the copy of the said settlement deeds and he was also instructed to hand over the said application with the appellant/Firka Surveyor/Srinivasan and the same was given to the appellant on the same day. The appellant instructed the P.W.2 to come and meet him after one week and accordingly, P.W.2 met http://www.judis.nic.in 4 the appellant after one week and further instructed to get signatures from his two sons in two blank papers. Accordingly, the same was obtained which was handed over with the appellant. Then, the P.W.2 was instructed to come and meet the appellant after 15 to 20 days. As per the instruction of the appellant, P.W.2 met the appellant on 07.10.2009 at the Taluk Office, Lalgudi and requested him to do the needful and for which the appellant demanded bribe of Rs.2000/-from P.W.2 and P.W.2 expressed his inability to pay any bribe. But, P.W.2 was informed by the appellant that the work will not be completed unless he paid a sum of Rs.2000/-to the appellant and hence P.W.2 left from there after informing with the appellant that he will come and give a sum of Rs.2000/- on the next day evening.
3. The complainant was not willing to give illegal gratification, approached the vigilance and anti-corruption cell at Trichy on 08.10.2009 at 01.00 p.m., and gave a complaint/Ex.P.4. P.W.11/Inspector of Police, Vigilance and Anti-Corruption Wing received the said complaint and registered the same as Ex.P.27/First Information Report. A copy of the Ex.P.27 was furnished to the P.W.2 and in which P.W.2's signature/Ex.P.5 was obtained. Thereafter, P.W.11/Inspector of Police summons http://www.judis.nic.in 5 P.W.3/Singaram and T. Dhanapal and other official witnesses and the P.W.2 were introduced to each other by P.W.11 and thereafter the witnesses were required to peruse the contents of the Ex.P. 27/FIR and also required to enquire the veracity of the contents with P.W.2/ After ascertaining the same, P.W.11 asked the P.W.2 as to whether he broguht the amount of Rs.2000/-as demanded by the appellant and for which P.W.2 produced Rs.2000/- consisting of four 500 rupee currency notes the M.O.1 series and the numbers thereon noted through the official witness. P.W. 11/Inspector of Police had demonstrated the significance of the phenolphthalein test to all the witnesses. The phenolphthalein tainted currency notes/M.O.1 series was handed over to P.W.2 thorugh the official witness Dhanapal and the same was received by the P.W.2 and was kept the same in his shirt pocket. Thereafter, P.W.11/Inspector of Police instructed P.W.2 to go to Taluk Office, Lalguid and to meet the appellant along with P.W. 3/Singaram and if the appellant demanded and received the bribe money, then he was instructed to give the pre-arranged signal and then P.W.8 prepared Entrustment mahazar.
4. Thereafter, P.W.2 and P.W.3 went to the Taluk Office around 18.40 hrs., and after 10 minutes they came out without any http://www.judis.nic.in 6 signal and thereafter they went nearby a shop by name Abinaya General Stores and after 5 minutes they came out from the stores. P.W.11/Inspector of Police went to them and enquired about the happening. P.W.2 informed that when they went inside the office of the appellant, the appellant was not found in his seat and on enquiry with a person, they got the telephone number of the appellant i.e., 98653 92500 and contacted to the said mobile number from the telephone booth installed at the Abinaya General Stores and informed to the appellant that as per the demand of the appellant P.W.2 brought the sum of Rs.2000/- and for which the appellant herein instructed the P.W.2 that he was at Trichy and within half-an-hour he would come to the Naganathar Tea Stall, Madurai Road near by Star Theatre and asked him to come there with bribe money and the above said version was confirmed by P.W.3/Singaram.
5. Thereafter, P.W.2 & P.W.3 went to the Naganathar Tea Stall at 08.20 to 08.30 p.m. P.W.2 went to the Tea Stall along with P.W.3 and the appellant enquired about the P.W.3 for that P.W.2 explained that the P.W.3 is his neighbour. The appellant demanded money from P.W.2 and accordingly, P.W.2 handed over the said tainted money, M.O.1/Currency notes after folding the http://www.judis.nic.in 7 same in a paper and the same was received by the appelalnt and kept the same in his shirt pocket. Thereafter, P.W.2 gave the pre- arranged signal as instructed by P.W.11/Inspector of Police. P.W. 11 and his raiding party rushed to the said place and after ascertaining the happening from the P.W.2 and P.W.3 , the appellant was caught hold and the P.W.2 was asked to be away from that place. The phenolphthalein test was conducted by P.W. 11/Inspector of Police and M.O.2/Shirt, M.O.3 and M.O.4 were collected. P.W.11/Inspector of Police recovered Rs.13,500/-from the appellant and since there was no satisfactory explanation by the appellant for the said amount and the same was also recovered by P.W.11 and then, Ex.P.22/observation mahazar and Ex.P. 23/rough sketch were prepared. Thereafter, P.W.11 conducted the search at the residence of the appellant and recovered Ex.P. 10/personal register which was maintained by the appellant for his work and prepared search list/Ex.P.11. Ex.P.2/file and Ex.P. 3/requisition of the complainant were also recovered from the residence of the appellant.
6. Thereafter, P.W.12/Ramachandran/Inspector of Police, took up the case for further investigation and examined P.W.4/Thangavel and the Thana settlement deeds/Ex.P.12 & http://www.judis.nic.in 8 Ex.P.13 were executed by P.W.2 were collected from P.W.5/Irudhayamary/Sub-Registrar. Then, P.W.12/Inspector of Police collected Ex.P.17/Phone call details and Ex.P.18/File relating to call details of Aircel and M.O.3 & 4 were sent for chemical analysis vide letter Ex.P.16/letter and the same was analysed by P.W.8/Malika/Scientific Assistant who issued Ex.P.14/report and the copy of requisition letter/Ex.P.15. Thereafter, P.W.12 also recovered Ex.P.24/D.K petition register, E.xP.25/distribution register, Ex.P.26/Atthukattum petition register from the concerned authorities. After the trap. The land of the P.W.2 was measured by the officials of the Taluk Office and they were unable to confirm the same and a statement was recorded from the P.W.2 under Ex.D.3/petition and the signature of P.W.2 was marked as Ex.D.2. Then, P.W.12 accorded Ex.P. 1/sanction order from P.W.1/Ramamurthy/Assistant Director of Survey and Land Reforms and after completion of investigation, laid the final report against the appellant under Section 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
7. The learned Special Judge, Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirapalli after completing the prosecution evidences, the incriminating evidence http://www.judis.nic.in 9 was put to the appellant under Section 313(1)(b) of Cr.P.C. The appellant denied the same as false evidence. On the side of the appellant, D.W.1 to D.W.4 were examined and Ex.D.1 to Ex.D.7 were marked. After considering the oral and documentary evidence, the trial Court found that on 08.10.2009, in front Naganathar Tea Stall, opposite to Star Theatre, Madurai Road, Trichy between 20.10. hrs., and 20.20 hrs, the appellant as a public servant, misused his official capacity, in furtherance of the said earlier demand the appellant herein reiterated the said demand and accepted a sum of Rs.2000/-from the defacto complainant/P.W.2/Rasu, in the presence of an independent witness P.W.3/Singaram. Therefore, the appellant had committed an offences under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act. The appellant was guilty and convicted him for the offence under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced him as stated above. Aggrieved against the Judgment of conviction and sentence passed by the trial Court, the convict has preferred the present appeal.
8. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the available records. http://www.judis.nic.in 10
9. The learned counsel for the appellant submitted that the Court below has presumed that the money was received towards illegal gratification without any materials. He further submitted that the complainant P.W.2 has lodged the complaint by reducing in a paper to the respondent police thereafter it was typed in a computer centre by the respondent police and the same was handed over to the Trap Laying Officer, hence the Ex.P.27/FIR came to be registered, but the original hand written complaint was suppressed by the respondent police and hence it can be treated as a secondary evidence and the same cannot be taken for consideration, more over P.W.11/Inspector of Police, after receiving the complaint and the same is against the Code of Criminal Procedure under Section 162 of the Cr.P.C., and the same document cannot be treated as First Information report. He further submitted that the prosecution agency has not properly obtained the sanction from P.W.1 under Section 19(1)(c) of the Prevention of Corruption Act, the relevant records were not produced before him and without applying his mind he accorded the order of sanction to prosecute the appellant, while at the time of cross examination he was unable to disclose the meaning for the word 'reiterated' 'demonstrated' and 'tainted' it shows that he is not the author of the sanction order (Ex.P.1). He further submitted http://www.judis.nic.in 11 that the occurrence is alleged to have taken place before Naganathar Tea Stall and the investigation officer (P.W.11) in his evidence stated that he used the electricity from the tea stall for his laptop, but either the master of the tea stall or any individual witness not at all been examined as a witness.
10. On the contrary, the learned Government Advocate (Crl. side) would contend that the Inspector of police, Vigilance and Anti corruption cell are authorised to investigate on the directions of the Deputy Superintendent of Police under Section 17 of the Act. The learned counsel also submit the validity of the sanction cannot be questioned, as PW1 was the appointing authority and there are strong evidences against the appellant to prove the case of the prosecution.
11. In this case the sanction has been accorded by the P.W.1 who is working as Assistant Director of Survey and Land Records, Tiruchirapalli. In the original sanction order there is a reference stated that report of the Director of Vigilance and Anti Corruption, Chennai in RC No.404/2009/SUR/TR dated 06.05.2010 and other connected records were received.
http://www.judis.nic.in In the sanction order it has 12 been stated that the P.W.1 being the Assistant Director of Survey and Land Records, Tiruchirapalli being the authority competent to remove the appellant fully and carefully examining the materials records FIR, statement of witnesses and statement of appellant, entrustment mahazar, trap seizure mahazar, observation mahazar, rough sketch and other connected records received from the Director of Vigilance and Anti Corruption including the copy of the report produced by the Inspector and applied his mind and satisfied himself and accorded the sanction. The above fact was spoken by the P.W.1 during his evidence before the trial Court. So the prosecution has produced the original sanction order before the Court and also adduced the evidence in respect of sanctioning order through the authority who accorded the sanction. In this case, P.W.1 categorically deposed that he sent a person to the Villupuram office to take a copy of the sanction order and after getting the same and after perusal of that case records received by him in this case and after applying his mind, he prepared the sanction order. This is quite natural. From the entire evidence produced before the sanctioning authority definitely there is a prima facie case available to accord sanction. It is not the case of the defence that the materials placed before the sanctioning authority are insufficient to grant sanction. But the only attack is http://www.judis.nic.in 13 that he does not disclose the tamil meaning of certain words maintained in the sanction order and hence he may not be the author. The essential requirements is whether the relevant records are produced before the authority, whether he perused the same, applied his mind, satisfied himself and accorded sanction. These two aspects are present in the case in hand. The other thing that there is no external pressure or compulsion to accord the sanction to prosecute the P.W.1 was also established by the prosecution. Language is an instrument for communication and simply because he may not be in a position to disclose the meaning of certain words in a given situation before the Court of law during his evidence at witness box that alone cannot lead the presumption or conclusion that he has not occasioned to apply his mind. So from the above discussion, this Court finds that the sanction of prosecution accorded by the sanction authority is not suffered with any infirmity and it is valid one.
12. Though the defense is able to establish that nearby the scene of occurrence one more Naganathar Tea Stall is also available that will not affect the prosecution case on its entirety. There is no dispute that Naganathar Tea Stall is situate at http://www.judis.nic.in 14 Marakkadai, Trichy. The said Naganathar Tea Stall is identified by the prosecution, a tea stall nearby marakadai, Trichy which is opposite to the Star Theatre. It is also the case of the prosecution that Passport Office and a MGR statue also situated nearby marakkadai and that the marakkadai is there about 50 years and hence P.W.2 an aged man spell out his identification at Naganathar Tea Stall through marakkadai and some witnesses are able to identify the marakkadai through the same is situate opposite to Star Theatre as argued by the defense counsel. It is evident that P.W.3 is not in a position to disclose the direction as to how they reached the Naganathar Tea Stall. But the Trap Laying Officer P.W.11 has given his evidence with regard to the directions as contemplated in the observation mahazar. The trap proceedings taken place on 08.10.2009. The P.W.3 was examined on 09.06.2011 i.e., nearly three years from the date of trap. One cannot recollect except street name, direction in a busy street after three years of his visit. Simply because another Naganathar Tea Stall is situate nearby that cannot be taken as advantage. It is also argued by the defense counsel that from Lalgudi one witness deposed that they came to marakadai through bye-pass road, another witness deposed that they came through Thiruvanaikoil and argued that the way through bye-pass road is different from http://www.judis.nic.in 15 way through Thiruvanaikoil. It is true to some extent that bye-pass road start from Samayapuram itself and from there marakadai can be reached through Thiruvanaikoil or through TVS Toll gate bye- pass road. As argued the learned Special Public Prosecutor, since the bye-pass road commenced before Thiruvanaioil itself, there is no confusion or contradiction with regard to the way in which they proceed to reach the Thiruvanaikoil.
13. The first application and the subsequent application for making the measurement and the sub-division was established by the prosecution. The prosecution was also able to establish through Ex.P.20 and Ex.P.21 that requisition were sent by the P.W11 to bring the P.W.3 and the list of witness Dhanapal. The endorsement made by the Superintendent Engineer, P.W.D., WRO, Plant Formation Circle, Trichy-20 in Ex.P.20 and the endorsement made in Ex.P.21 on behalf of the Executive Engineer, TWAD Board, Maintenance Division, Tiruchirapalli on 08.10.2009 the deputation of those witness were also established. The evidence of P.W.2 that he went to the Lalgudi Taluk Office of the Survey i.e., the accused at Lalgudi and got the phone number of the accused and contacted him over phone and came along with P.W.3 & http://www.judis.nic.in 16 P.W.11 and also along with the raiding party to the Tiruchirapalli was also established through the oral evidence of P.W.2 & P.W.3 and the documentary evidence i.e., the details in Ex.p.17 to Ex.P.19. The initial demand was also spoken by P.W. 2 and corroborated the averments available in this regard in Ex.P.4. The acceptance of tainted money by the appellant at Naganathar Tea Stall by the appellant from the P.W.2 was spoken by the P.W.2 and was corroborated by P.W.3 and the same was also established through contemporaneous records under Ex.P.9 the recovery mahazar. The fact that the cell phone No.98653 92500 is belonged to the accused and he was in Trichy at 7.07 p.m., when the call was reached through a land phone No.0431 3244370 at Lalgudi was also established. The availability of the accused at Naganathar tea Stall was also established through the P.W.2, P.W. 3 and P.W.11 and also Ex.P.9 and the solution proved positive through the chemical analysis contained in M.O.2 was also established the case of the prosecution.
14. In view of the above discussion, though some contradiction are manifest in the prosecution case while reading the entire evidence the ring of truth i.e., the demand and acceptance http://www.judis.nic.in of the bribe money by the appellant from P.W.2 is 17 clearly and clinchingly established by the prosecution and minor contradiction and discrepancies in the prosecution case pointed out by the learned counsel for the defense cannot affects the prosecution case as argued by the learned defense counsel and hence this Court finds that the entire evidence would only indicate the guilt of the appellant and accordingly this Court finds the charges against the accused are clearly proved by the prosecution.
15. The evidence of the defence will not helpful to the case of the appellant. Merely because the defacto complainant involved in some criminal case his evidence can not be discarded in the present case unless circumstances warrant.
16. On a perusal of the records and the Judgment of the trial Court, this Court finds no ground and sound reason to interfere with the Judgment of conviction and sentence dated 31.07.2012 made in Spl. C.C.No.9 of 2011 on the file of the learned Special Judge, Special Court for trial of cases under Prevention of Corruption Act, Tiruchirapalli and the same does not warrant any interference.
http://www.judis.nic.in 18
17. In the result, the Criminal Appeal stands dismissed, confirming the judgment of conviction and sentence, dated 31.07.2012 made in Spl. C.C.No.9 of 2011, on the file of the learned Special Judge, Special Court for trial of cases under Prevention of Corruption Act, Tiruchirapalli. The trial Court is directed to take effective steps to secure the custody of the appellant/accused to undergo the remaining period of sentence.
17.12.2018 Index : Yes/No Internet : Yes/No. ksa http://www.judis.nic.in 19 To
1. The Special Judge, Special Court for trial of cases under Prevention of Corruption Act, Tiruchirapalli
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 20 P.VELMURUGAN, J.
ksa Crl.A.No.183 of 2012 17.12.2018 http://www.judis.nic.in