Madras High Court
P.Thirupathi vs The State on 21 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.12.2018
CORAM :
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.86 of 2012
P.Thirupathi ...Appellant/Accused
Vs.
The State,
Rep. by its Inspector of Police,
Vigilance and Anti Corruption,
Dindigul.
[Crime No.5 of 2007] ...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to set aside the judgment and conviction and sentence
passed by the Learned Special Judge, Special Court for Vigilance and
Anti Corruption Laws, Madurai in S.C.No.117 of 2011 dated 17.04.2012.
For Appellant : Mr.AL.Kannan,
For Respondent : Mr.M.Chandrasekaran
Additional Public Prosecutor
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JUDGMENT
The Criminal Appeal has been filed seeking to set aside the judgment passed in S.C.No.117 of 2011 by the Learned Special Judge, Special Court for Vigilance and Anti Corruption Laws, Madurai dated 17.04.2012.
http://www.judis.nic.in 2
2.Heard the learned Counsel appearing for the revision petitioner and the learned Additional Public Prosecutor appearing for the respondent.
3.The case of the prosecution is in order to measure the property belongs to the mother of the defacto complainant, the defacto complainant presented an application on 09.10.2007, in the name of his mother to survey the land along with challan for Rs.80/-. The Thasildar assigned the work to the Firka Surveyor namely, the accused. Since the mother of the defacto complainant is not feeling well, he looked after the matter. As per the instructions of the defacto complainant's mother, he approached the Revenue Officials and he came to know that the said work was assigned to the accused. When the defacto complainant met the accused on 07.12.2007, the accused demanded a sum of Rs.500/- as gratification other than legal remuneration to measure the land. Several times the defacto complainant met and approached to survey the land, repeatedly the accused reiterated his earlier demand. At one point of time, the Revenue Officials went for taking measurement, but due to objections raised by the neighbours, the same was postponed. Again on 13.12.2007, when the defacto complainant met the accused, he reiterated his earlier demand and directed to pay the amount on 14.12.2007 and then only he would measure the land and fix the http://www.judis.nic.in 3 boundary line. Since the de facto complainant was unwilling to pay any bribe to the appellant for survey the land, he went to the Office of the Vigilance and Anti Corruption, Dindigul on 14.12.2007 and gave a written complaint against the appellant seeking action against him.
4.Based on the complaint, a case was registered by the Inspector of Police, Vigilance and Anti Corruption, Dindigul in Crime No. 5 of 2007. After registration of the First Information Report, a trap was planned. After satisfying with the allegations levelled in the complaint, the Trap Laying Officer summoned the independent witnesses and also planned to conduct a trap and demonstrated pre-trap and prepared the entrustment mahazar. On 14.12.2007, the appellant / accused was not in the office, therefore, on that day he could not succeed the trap. Since the appellant was not in the office on that day, the defacto complainant contacted the accused over phone, the appellant told that he has attended the meeting and therefore, he was not in a position to come to the office on that day and therefore, he asked the defacto complainant to come and meet him along with the money on 17.12.2007 evening. Therefore, the same was informed to P.W.3 as well as trap team. Therefore, they left the place and dropped the trap proceedings. Thereafter, they re-assembled on 17.12.2007 once again conducted the pre trap demonstration and prepared the entrustment mahazar and note http://www.judis.nic.in 4 down all the currency notes to be given to the appellant. Thereafter, after completing the demonstration proceedings and destruction of the solution they proceeded to the Office of the appellant. On 17.12.2007 at about 7.05 p.m., when the defacto complainant / P.W.2 along with P.W.3 met the appellant, the appellant demanded money and P.W.2 handed over the money to the appellant and the appellant also received the same and kept the same in his left side shirt pocket and then the defacto complainant came out and shown the pre arranged signal to the Trap Laying Officer- P.W.7, who in turn after receiving the signal from the defacto complainant, along with team members had rushed to the defacto complainant. He had narrated the happenings took place inside the room and the independent witness had also corroborated the evidence of the de facto complainant. Thereafter, the Trap Laying Officer went inside the office, the de facto complainant identified the appellant and phenolphthalein test conducted on both the hands of the appellant proved positive. The Trap Laying Officer recovered the tainted money intact from the left side shirt pocket of the accused / appellant. The serial number of currency notes were compared and found to be tallied with the entrustment mahazar. The tainted money was recovered through recovery mahazar in the presence of the independent witness and signatures were obtained from the witness and from the appellant and subsequently, the same was entrusted with the Investigation Officer. http://www.judis.nic.in 5 After completion of the investigation, a charge sheet was laid against the appellant under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 before the learned Special Judge, Madurai. The said charge sheet was taken on file in Special Case No.117 of 2011 and after completing the legal formalities, charges were framed against the appellant / Accused.
5.In order to prove the case of the prosecution, on the side of the prosecution as many as 9 witnesses were examined as PW.1 to PW. 9, 20 documents were marked as Ex.P.1 to Ex.P.20 and 5 material objects were exhibited as M.O.1 to M.O.5.
6.After completion of the prosecution evidence, when the incriminating materials culled out from the prosecution witnesses were put before the appellant / accused, the appellant denied them as false. On the side of the accused, no oral evidence was adduced and one document was marked as Ex.D.1 to establish his defence.
7.After hearing the arguments and also considering the materials placed on record, the Special Judge found the appellant guilty and convicted him and sentenced to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.1,000/-, in default to http://www.judis.nic.in 6 undergo simple imprisonment under each section for a period of one month, for having committed the offence under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act. Both the sentences are ordered to run concurrently.
8.Against the judgment of the conviction and sentence imposed by the learned Special Judge, the convict has preferred the present appeal before this Court.
9.The learned Counsel for the appellant would submit that very basis of the framing of the charges itself is very difficult and the charge itself has not specifically stated about the demand and acceptance and therefore, the charge itself was defect. Further, he would submit that the defacto complainant himself disowned his complaint and also not supported the case of the prosecution. Therefore, the very inception of original demand was not proved by the prosecution. It is a settled proposition of law that mere recovery of money itself is not sufficient. The main ingredients that the demand and acceptance altogether to be proved. When the complainant disowned his complaint and turned hostile and not supported the case of the prosecution and the prosecution has also not proved the case, it is fatal to the case of the prosecution. The learned Special Judge failed to http://www.judis.nic.in 7 consider that the demand has not been proved, despite he has accepted the case of the prosecution and given finding that demand was proved.
10.Further the contention raised by the learned Counsel for the appellant that even on 14.12.2007, P.W.2 went to the office of the accused along with trap team and on that day the appellant was not available in the office, the trap was failed. But there is no evidence to show that P.W.2 informed either P.W.3 or P.W.7 that he contacted the appellant over phone and the appellant told that he has attended the meeting and he asked him to come on 17.12.2007. The cell phone of P.W.2 and the contact number of phone list has not been marked through prosecution witness. Therefore, the demand made by the appellant is not proved on 14.12.2007 also. The demand and acceptance have not been proved. As far as recovery is concerned the prosecution has not proved the case beyond reasonable doubt. More than one reason, the draft plan is not properly planned and the draft plan was not contemplated under rule 49 which is defective. Even the evidence of P.W.8 the Scientific Officer itself shows that the quantity of solution contains only 150 ml. But P.W.7 the Trap Laying Officer has stated that he collected 250 ml. P.W.8 has stated that once the solution was poured into a bottle and sealed it, there is no change in quantity. Therefore, the change in solution creates doubt. P.W.4 and P.W.5 http://www.judis.nic.in 8 stated that due to dispute, when the defacto complainant want to measure the boundary lines of the lands in S.No.347/1A of Vembur Village stands in the name of Tmt.Chellammal, the mother of the complainant, since the neighborhood raised objections, the appellant could not measure the land. Therefore the same fact was also informed to the Office of the Tahsildar, there is no fault on the part of the appellant in not measuring the property. Further the mother of the defacto complainant was not examined, which is also fatal to the case of the prosecution. Further he would submit that the appellant has not demanded any money and P.W.2 denied the recital made in the complaint and also he has not entrusted the tainted money to the Trap Laying Officer and also not given to it. P.W.3 and P.W.7 were not with him either on 14.12.2007 or 17.12.2007. Therefore, there is a material contradiction in the evidence of the prosecution. Therefore, the prosecution has failed to prove its case beyond reasonable doubt. In this case the demand, acceptance and recovery has not been proved beyond reasonable doubt. When two views are possible, the view which is favourable to the accused to be considered and benefits of doubt has to be extended in favour of the accused. In this case, there is a suspicious circumstances and also material contradiction, which is fatal to the case of prosecution. The learned Special Judge had failed to appreciate the defence taken by the appellant and rejected the defence http://www.judis.nic.in 9 taken by the appellant without any valid reason. The learned Special Judge only believed the words of the independent witness P.W.3 and convicted the accused.
11.The learned Counsel for the appellant also placed reliance on the following judgments reported in
1) (2014) 13 SCC 55 – in the case of B.Jayaraj vs. State of Andhra Pradesh
2) (2015) 10 SCC 152 – in the case of P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another
3) (2016) 1 SCC 713 – in the case of N.Sukanna vs. State of Andhra Pradesh Mere recovery of money itself is not sufficient unless demand and acceptance have been proved. Further, once the complainant has disowned his complaint and the prosecution has not established its case with any other witness, the conviction cannot be made on the sole ground of the prosecution. Further he would submit that in order to prove the demand of money, no witness has been examined. When the demand itself was not proved, it is unsafe to record the conviction of the accused. The prosecution has not proved the case beyond reasonable doubt and therefore, the judgment passed by the Trial Court is liable to http://www.judis.nic.in 10 be set aside and this appeal may be allowed.
12. A reading of the judgments cited by the learned counsel for the appellant show that they are not applicable to the present case on hand, since, the facts and material evidence of the present case is entirely different from the above said referred to cases. Therefore, the authorities cited by the learned counsel for the appellant are not applicable to the present case on hands.
13.The learned Additional Public Prosecutor, appearing for the state would submit that though P.W.2 disowned the recital of the complaint, he admitted the signature in the complaint and also the signature found in EX.P.5 Entrustment Mahazar. Further he has also admitted that his mother had owned the lands. Though the mother of P.W.2 was examined by the Investigation Officer, subsequently, due to ill-ness of P.W.2's mother, the prosecution could not examine the mother of the complainant before the Trial Court. Therefore, this will not fatal to the case of the prosecution. P.W.3 has clearly stated that after summoning, he appeared before P.W.7 Trap Laying Officer, he introduced the independent witness and defacto complaintant each other and also told that P.W.2 gave complaint and also asked him to verify the above complaint. Therefore, P.W.3 also gone through the http://www.judis.nic.in 11 complaint and also confirmed. Subsequently, P.W.7 also spoken that when independent witness came to the office, they introduced the complainant and the independent witness each others and also asked them to verify the complaint and also explained the pre-trap demonstration proceedings. Subsequently, prepared the entrustment mahazar, the serial numbers of the currency notes to be given to the appellant is also mentioned in that mahazar and in that mahazar all the independent witness and the complainant has signed it. The evidence of P.W.3, P.W.5 clearly proved that the complainant / P.W.2 gave complaint before P.W.7 and the same is proved beyond reasonable doubt. Further the evidence of P.W.3 has clearly stated about the visit of the office of the appellant on 14.12.2007 and since the appellant was not in the office, then P.W.2 in the presence of P.W.3 telephoned to somebody and after completing telephonic conversation with the appellant, P.W.2 informed that the appellant would come to the office and therefore, intimating the same to P.W.7 and left the office of the appellant. On that date as stated by P.W.2, they planned to reassemble on 17.12.2007. Therefore, once again they reassembled on 17.12.2007 and again prepared mahazar and demonstrated the pre-trap proceedings and succeeded the trap and also recovered the trap money. Though the draft plan is not indicating about where the appellant is sitting and which direction he has faced, P.W.3 was http://www.judis.nic.in 12 standing on the infrastructure laid down on the appellant office, which is clearly indicted. Therefore non mentioning in the draft plan is not fatal to the case of the prosecution. From the evidence of P.W.1 to P.W.3 and regarding the entrustment of Mahazar from P.W.4 and P.W.5 and regarding the trap proceeding from P.W.7 Trap Laying Officer and regarding the Chemical test from P.W.8 and from the oral and documentary evidence, the prosecution has proved its case beyond reasonable doubt. Therefore, the appellant has not shown any prejudice regarding the defect in framing of charge and trap proceeding and questioned any relevant facts before facing the case. He has not raised anything at the time of questioning under Section 313 Cr.P.C. or question of sentence and this thing is raised only before the appellante Court and therefore, it is very clear that no prejudice is caused to the appellant. After investigation the charge sheet was laid against the appellant and the case was taken on file in Spl. Case No.117 of 2011 by the Special Judge, Madurai. After considering the materials placed on record and hearing on either side, the learned trial Judge found the appellant guilty for the offences under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and rightly convicted and imposed sentence and punished in accordance with law. Therefore, there is no need to interfere with the judgment of the trial Judge.
14.Heard the learned Counsel on either side. Perused the http://www.judis.nic.in 13 material placed on record and the judgment of the trial Judge.
15.The case of the prosecution is that in order to measure the property belongs to the mother of the defacto complainant, the defacto complainant presented an application on 09.10.2007, in the name of his mother to survey the land along with challan for Rs.80/-. Since the mother of the defacto complainant is not feeling well, he look after the matter. As per the instructions of the defacto complainant's mother, he approached the Revenue Officials and he came to know that the said work was assigned to the accused. When the defacto complainant met the accused on 07.12.2007, the accused demanded a sum of Rs.500/- as gratification other than legal remuneration to measure the land. Having not interested in paying bribe, the defacto complainant preferred a complaint before the respondent Police and based on the complaint, trap was planned and pre-trap proceeding was demonstrated in the presence of the independent witnesses namely, PW.3 along with PW.2. Subsequently, in the trap the appellant was caught red handed on 17.12.2007 and tainted money was recovered from the appellant through the recovery mahazar in the presence of independent witness. Phenolphthalein test was conducted and the result proved positive. The solution was sent to the Forensic Lab and the report also proved the presence of phenolphthalein and sodium carbonate. The appellant had http://www.judis.nic.in 14 not rebutted the presumption under Section 20 of the Act, in respect of his possession of the tainted money. So the demand, acceptance, and recovery by chemical analysis test are proved beyond reasonable doubt and hence, the prosecution has proved its case beyond reasonable doubt.
16.P.W.2 has turned hostile, but in some extent as stated by the learned Additional Public Prosecutor that he has admitted his signature in Ex.P.4 complaint and Ex.P.5 to Ex.P.7 Mahazars. Therefore, under these circumstances, the reason best known to him, subsequently, during deposition of evidence before the Trial Court, he has not supported the prosecution case. It does not mean the Court has to significant only on the evidence of P.W.2 alone. The Court has to see the entire case of the prosecution and the entire oral and documentary evidence of the prosecution and also the probable defence taken by the accused.
17.A reading of the complaint, deposition of the independent witness P.W.3 and the official witnesses P.W.4 and P.W.5 they have spoken about the work entrusted to the appellant and the evidence of P.W.7 Trap Laying Officer and P.W.8 Chemical Analyst and the exhibits marked on the side of the prosecution, this Court find that the http://www.judis.nic.in 15 prosecution has proved the case beyond reasonable doubt. The main ingredients of demand, acceptance and recovery have been proved. No doubt presumption regarding recovery of money can be drawn, under Section 20 of the Act. It will not give any presumption that the demand is attached with recovery. The prosecution has to prove first the demand then acceptance and then recovery.
18.In this case on reading of the evidence of P.W.2 and P.W.3 coupled with P.W.7 to some extent, this Court find that the prosecution has proved the case regarding the demand. Regarding the acceptance of money, from the evidence of P.W.3, he has clearly spoken about the acceptance by the appellant and P.W.7 also confirmed the complaint given by P.W.2 and he accompanied with P.W.2 as instructed by P.W.7 the Trap Laying Officer when they went on 17.12.2007 to the office of the appellant, at the time the appellant demanded money and accepted the money. Therefore, the demand and acceptance made on 17.12.2007 was proved. The evidence of P.W.3 was not shaken by the defence. Therefore, this Court does not find any valid reason to discard or disbelieve the evidence of P.W.3. So far as recovery is concerned, from the reading of evidence of P.W.3 and P.W.7, the Mahazars Ex.P.5 to Ex.P.7 and M.O.3 and M.O.4, the prosecution has proved its case. The defacto complainant has not denied his signature in the complaint, http://www.judis.nic.in 16 entrustment mahazar and recovery mahazar. P.W.7 also admitted that the signatures in entrustment mahazar is that of P.W.2. The recovered currency notes are found to be tallied with entrustment mahazar. Therefore, the contention raised by the learned Counsel for the appellant that the defacto complainant has disowned his complaint, entrustment mahazar, recovery of tainted money from the appellant is not acceptable.
19.From the evidence of P.W.3 and P.W.9 the recovery has been proved. Therefore this Court does not find any valid reason to discard the evidence of P.W.3 and P.W.7. P.W.7 is the official witness, he may not have personal motive or animosity over the appellant. P.W.3 is working as an Assistant Engineer in Government Office. When there is no evidence to show that they have any personal animosity either with P.W.2 or with the appellant. So in the absence of specific evidence regarding the enmity or animosity against P.W.3 and P.W.7 this Court does not find any valid reason to discard their evidence. On reading of evidence of P.W.2 to some extent and P.W.3 in toto, P.W.4, P.W.5 and P.W.7 the Official witness and P.W.8 Scientific Officer and the 20 documents marked by the prosecution, this Court find that the prosecution has proved the case beyond reasonable doubt. Therefore, once the demand, acceptance and recovery are proved, as per Section http://www.judis.nic.in 17 20 of the Prevention of Corruption Act, it is the presumption that the money recovered from the appellant is the tainted money and it is for him to explain, as to how the tainted money came into his possession.
20. From the materials placed by the prosecution, this Court finds that the appellant has committed the offence under Sections 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. This Court does not find any reason to take a different view. The trial Court has rightly appreciated the evidence and convicted the appellant. Further as stated earlier on careful reading of the entire oral and documentary evidence and also gone through the citation referred to by the learned Counsel for the appellant, this Court finds that the facts found in the judgment referred to by the learned Counsel for the appellant are absolutely not applicable to the facts of the present case on hand. For more than one reason that though the defacto complainant turned hostile and not supported the case of the prosecution, as already stated the defacto complainant admitted the signature in Ex.P.5 to Ex.P.7 Mahazars and also the independent witness P.W.3 was examined by the prosecution has stated that there is no reason to discard the evidence of P.W.3. Therefore, the basic ingredients of demand is proved and also the acceptance also proved as stated earlier through the evidence of P.W.3 and also the subsequent recovery also proved. http://www.judis.nic.in 18 Therefore, this Court find that the basic ingredients of demand, acceptance and recovery are proved. The demand and acceptance is not a question of law. It is only a question of fact. This fact is culled out from the prosecution witnesses and it is not uniform theory that every factual matrix has to be followed in other case for legal proposition. Therefore, under these circumstances, this Court find that absolutely there is no quarrel with the legal proposition of law declared by the Supreme Court under Article 141 of Constitution of India. This Court can follow the law laid down by the Supreme Court. All the Subordinate Courts are bound to follow the law laid down by the Supreme Court including High Court. Therefore, this Court is very conscious of the Law laid down by the Supreme Court and this Court is bound to follow the law laid down by the Hon'ble Apex Court. The demand and acceptance are purely not question of law, but is only a question of fact. Under these circumstances, this Court finds from the available records that the prosecution has proved its case beyond reasonable doubt. The demand and acceptance are proved by the prosecution. Then recovery is concerned, presumption can be drawn by invoking section 20 of the Prohibition of Corruption Act. The tainted money was recovered from the appellant's shirt pocket, by the trap laying officer. Therefore under Section 20 of the Prevention of Corruption Act, it is the presumption that the possession of tainted money is the bribe money, which the appellant http://www.judis.nic.in 19 failed to rebut the presumption in the manner known to law. Therefore, the appellant has not proved his defence in the manner known to law.
21. A reading of the entire materials placed on record, shows that the prosecution has proved its case beyond reasonable doubt, through oral and documentary evidence. Even though there are contradictions among the prosecution witnesses, they are not vital contradictions and the same will not vitiate the case of the prosecution and go to the root of the prosecution case. Therefore, the contradictions are not material contradictions to vitiate the case of the prosecution.
22.Though, the appellant need not prove his defence by direct evidence and he can very well establish his defence from preponderance of probabilities or probable defence, in this case, the appellant though made an attempt, has failed to prove his defence in the manner known to law.
23.In view of the discussion held above, this Court does not find any merit in the appeal and the same is liable to be dismissed. http://www.judis.nic.in 20
24.In the result, the present criminal appeal is dismissed and the judgment rendered in Special Case No.117 of 2011 by the Special Judge, Special Court for Prevention of Corruption Act, Madurai dated 17.04.2012, is here by confirmed. The respondent is directed to secure the appellant forthwith to undergo the remaining period of sentence.
21.12.2018 Index : Yes/No Internet : Yes /No rm To
1.The Special Judge / Special Court for Prevention of Corruption Act, Madurai
2.The Inspector of Police, Vigilance and Anti Corruption, Dindigul.
[Crime No.5 of 2007]
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 21 P.VELMURUGAN, J., rm Crl.A.(MD)No.86 of 2012 21.12.2018.
http://www.judis.nic.in