Madras High Court
Soundarajan vs The State Of Represented By on 8 January, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 08.01.2019
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.140 of 2012
and
MP(MD)No.1 of 2012
Soundarajan ...Appellant/Accused
Vs.
The State of represented by
The Inspector of Police,
Vigilance and Anti Corruption,
Dindigul.
[Crime No.02 of 2004] ...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to call for the records relating to judgment dated
28.06.2012 in Special Case No.118 of 2011 on the file of the Special
Court for Trial of Cases under the Prevention of Corruption Act,
Madurai by acquitting the appellant.
For Appellant : Mr .Mr.Veerakathiravan,
Senior Counsel
for Mr.S.Thiruathy
For Respondent : Mr.S.Chandrasekar,
Additional Public Prosecutor
JUDGMENT
This appeal has been filed seeking to set aside the judgment dated 10.10.2012 in CC No.4 of 2008 rendered by the http://www.judis.nic.in Assistant Sessions Judge / Chief Judicial Magistrate, Tuticorin. 2
2.The case of the prosecution is that the appellant was working as Sub Registrar at Kannivadi in Dindigul District. The de facto complainant [PW.2] purchased land, which was registered in the Office of the appellant. When the de facto complainant, approached the appellant for return of the original registered document, the appellant demanded Rs.500/- as illegal gratification from the de facto complainant. Hence the de facto complainant preferred a complaint against the appellant on 11.08.2004.
3.Based on the FIR, trap was planned by the Trap Laying Officer (herein after shall be referred to as 'TLO'). Two independent witnesses, were summoned by the TLO and subsequently, PW.2, and the independent witness were present at the Office of the Vigilance and Anti Corruption, Dindigul and the complainant was also present as directed by the TLO. The TLO explained about the complaint given by PW.2, to the shadow witnesses and conducted a pre demonstration proceedings. PW.2 brought Rs.500/- and the serial number of the currencies were noted in the entrustment mahazar prepared by TLO and later coated the currencies with phenolphthalein powder and gave them to PW.2. The TLO instructed PW.2 to approach the appellant and if the appellant demanded the money, then only he should give the money to the appellant. PW.3 was also directed to accompany PW.2 and instructed them to show http://www.judis.nic.in signal, after accepting the money by the appellant. Accordingly, on 3 12.08.2004, the TLO, PW.2, shadow witness and Police Officials, went to the place of occurrence. PW.2 and PW.3 went inside the office of the appellant and when PW.2 enquired the appellant about his document, he asked as to whether he had brought Rs.500/- as demanded by him earlier, PW.2, replied yes and when the appellant asked the money PW.2 gave Rs.500/- to the appellant, the appellant received the money and kept it in his shirt pocket.
4.Then PW.2 came out of the office and gave the pre arranged signal to the TLO. On receiving the pre arranged signal from PW.2, the TLO along with the team entered into the office of the appellant and introduced himself to the appellant and conducted phenolphthalein test, which proved positive. Then the TLO recovered the tainted money through recovery mahazar and obtained signatures from the appellant and shadow witness. Then the TLO placed the matter before the Investigating Officer - PW.11. The Investigating Officer after conducting investigation laid a charge sheet against the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 [herein after referred to as 'PC Act'] before the Special Judge, Madurai.
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5.On the side of the prosecution 12 witnesses as PW.1 to PW.12 were examined, 28 documents as Ex.P.1 to Ex.P.28 were marked and 5 material objects as MO.1 to MO.5 were exhibited.
6.After completion of the prosecution side evidence, the incriminating circumstances culled out from the prosecution witnesses were put before the appellant and the same was denied as false. On the side of the defence neither oral nor documentary evidence produced.
7.After completion of the trial and after hearing the arguments on either side, the Special Judge, found the appellant / accused guilty and convicted and sentenced him to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.1,000/-, in de fault to undergo simple imprisonment for a period of one months, for having committed each offence punishable under Sections 7 and 13(2) r/w 13(d)(1) of PC Act.
8.Aggrieved against the conviction and sentence, the convict has preferred the present appeal.
9.The learned Senior Counsel appearing for the appellant submitted that the charge has not been framed as contemplated http://www.judis.nic.in under Section 211 of CrPC, since the place of demand has not been 5 mentioned in the charge. Even in the subsequent charge also there is no date of demand, which is also not framed as contemplated under Section 211 of CrPC. Therefore, the charges itselves would vitiate the case of the prosecution. Further after completion of the trap they have not obtained any statement from the appellant, which is violative of Rule 47 of the Vigilance Manual, which also vitiates the case of the prosecution.
10.The learned Senior Counsel further submitted that the de facto complainant has not supported the prosecution. The initial demand is said to be on 06.08.2004, but which is not spoken about by the de facto complainant. Therefore, the initial demand is not proved. Once, the initial demand is not proved, mere recovery of money does not attract the presumption under Section 20 of the PC Act. The trial Court has failed to see that the PW.2 has been treated as hostile and hence, he has not supported the case of the prosecution. There is no reliable evidence either for the alleged demand of illegal gratification or acceptance of illegal gratification by the appellant. The trial Court has failed to see that the recovery of money is highly doubtful, unacceptable and unbelievable.
11.He further submitted that the trial Court has failed to consider the two attempts made by the TLO and in both attempts http://www.judis.nic.in different denomination of currency notes were mentioned in the 6 mahazar. Further, the presence of PW.3 at the alleged place of occurrence is highly doubtful and unbelievable. In the cross examination of P.W. 2 stated that he paid Rs.500 to the accused only for the purpose of obtaining non judicial stamp papers. Further, it is stated that one Constable Kathiravan was present at the time of Pre-Trap Proceedings and he prepared the solution, but his signature was not obtained in the entrustment mahazar. Further it is submitted that independent witnesses accompanied in the trap proceedings was not examined by the prosecution. No statement has been obtained from the appellant after the trap proceedings, which is violative of mandatory provisions of Vigilance Manual. The recovery of money from the appellant is highly doubtful and unacceptable. The trail Court has failed to consider that the prosecution has failed to consider that the prosecution has failed to prove its case beyond reasonable doubt and it ought to have extended the benefit of doubt to the appellant and acquitted the appellant. Therefore, interference of this Court is warranted. He also placed reliance on the following judgments:
1.B.Jayaraj Vs. State of Andhra Pradesh, reported in (2014) 2 MLJ (Crl) 358 (SC); 2.C.M.Girish Babu Vs. CBI, Cochin, High Court of Kerala, reported in (2009) 3 SCC 779; 3.T.Dainel Manicakaraj Vs. State, represented by the Inspector of Police, reported in ( 2008) 1 MLJ (Crl) 774; and 4. .Thulasiram Vs State , reported (2012) (1) TNLR 193 (Mad).
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12.The learned Additional Public Prosecutor submitted that the PW.2 has deposed that the appellant demanded and accepted the bribe. He was not treated hostile at the time of chief examination, but he turned hostile only after cross examination. Though, he turned hostile, in the complaint it is clearly stated that PW.2 demanded bribe for returning the document and his evidence cannot be rejected in toto. PW.3 has deposed about the demand and acceptance of the bribe money by the appellant from PW.2 on the date of occurrence. Therefore, the demand and acceptance of bribe money is proved. Further, the tainted money was recovered from the appellant and the same tallied with the entrustment mahazar. Therefore, the the presumption under Section 20 of the PC Act will come into force.
13.The learned Additional Public Prosecutor would further submit that the evidence of PW.2, the de facto complainant, PW.3- shadow witness, PW.9, P.W.10 -TLO, and, Ex.P.1 sanction order, Ex.P.11- the complaint, Ex.P.12, Ex.P.13 and Ex.P.14 entrustment Mahazars, Ex.P.20 Recovery Mahazar, Ex.P.27 the Chemical Analysis Report, the prosecution has proved its case that the appellant had demanded Rs.500/- from the de facto complainant for returning registered document and accepted the same and the recovery is also proved. The phenolphthalein test is also proved http://www.judis.nic.in positive. Therefore, the trial Court has rightly concluded that the 8 appellant had committed the offence and convicted and imposed sentences as mentioned above. Therefore, there is no reason to interfere with the judgment of the trial Court. The Special Judge has rightly appreciated the evidence and considered the materials placed on record and elaborately discussed the matter and rightly convicted the appellant and sentenced. Therefore, there is no reason to interfere with the judgment of the Special Judge.
14.A reading of the complaint Ex.P.11 it has been has clearly indicated about the demand made by the appellant on 06.08.2004 and PW.2 has also corroborated his complaint in his evidence during the chief examination and had explained in detail right from the lodging of complaint and till the trap proceedings completed. From the evidence of PW.2 and the complaint Ex.P.11 it is clear that the appellant demanded Rs.500/- from the de facto complainant and accepted the same, which was also subsequently recovered by the TLO.
15.A reading of the evidence of PW.10 TLO shows that he had clearly spoken about the receipt of the complaint and summoning of the independent witnesses, conduct of pre trap demonstration, preparation of entrustment mahazar, the execution of the trap, phenolphthalein test, recovery of tainted money and http://www.judis.nic.in preparation of recovery mahazar. So, from the evidence of TLO, it is 9 evident that the recovery of the tainted money, received as illegal gratification other than the legal remuneration.
16.A reading of the evidence of PW.3 shadow witness, reveals that he had deposed about his summoning, explanation of the complaint to him, demonstration of pre trap proceedings and their meeting with the appellant, the demand made by the appellant, handing over the tainted money to the appellant by the de facto complainant, the acceptance of the money by the appellant. Further his evidence reveals the sodium carbonate solution test, the recovery of tainted money from the appellant by the TLO, preparation of recovery mahazar and their affixing signature in the same. PW.3 has corroborated the evidence of PW.2 and the TLO, in respect of the demand, acceptance and recovery of the money.
17.Ex.P.27 the report of Chemical Analyst shows the presence of sodium carbonate and phenolphthalein, in the solution.
19. On a conjoint and careful reading of the evidence of PW.1, PW.2, PW.4, PW.8 and PW.10 and and Ex.P.1,Ex.P.11 Ex.P. 12, Ex.P.13, Ex.P.20, it is clear that the prosecution has proved the and demand, acceptance and recovery beyond reasonable doubt. http://www.judis.nic.in 10
20.The contention of the learned Counsel for the appellant that the charge was not framed as contemplated under Section 212 of CrPC. It will be useful to extract Section 464 CrPC and the same is extracted as hereunder:
“464. Effect of omission to frame, or absence of, or error in, charge.
(1) No finding sentence or order by a Court of competent jurisdictions hall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that afailure of justice has in fact been occasioned, it may—
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” From the above, it is clear that Section 464 of CrPC deals with the framing of charge and the wrong framing of charge would not vitiate the case of the prosecution. Hence, the defence taken by the appellant is totally unsustainable.
21. As observed earlier, a careful scrutiny of the entire http://www.judis.nic.in materials placed on record shows that the prosecution has proved 11 the commission of offence by the appellant. There are no reasons to discard or disbelieve the prosecution witness and documents.
22.Even though, the appellant need not prove his defence by direct evidence, he can very well establish his defence from preponderance of probabilities or probable evidence. Whereas in this case, the appellant had made an attempt to do so, but failed to prove his defence in the manner known to law.
23.In view of the foregoing discussion, this Court does not find any merit in the appeal and the same is liable to be dismissed.
24.In the result, the present criminal appeal is dismissed and the judgment dated 28.06.2012 made in Spl.CNo.118 of 2001 by the Special Judge, Madurai, is here by confirmed. Consequently connected miscellaneous petition is dismissed.
08.01.2019 dsk Index : Yes/No Internet : Yes /No To
1.The Special Judge, Madurai.
2.The Inspector of Police, http://www.judis.nic.in Vigilance and Anti Corruption, Dindigul.
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3.The Additional Pubic Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper (2 Copies), Criminal Section, Madurai Bench of Madras, Madurai.
http://www.judis.nic.in 13 P.VELMURUGAN, J., dsk Crl.A.(MD)No.140 of 2012 08.01.2019 http://www.judis.nic.in