Madras High Court
Seshaiah Sole Accused vs State Represented By on 25 October, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25.10.2018
RESERVED ON : 11.10.2018
DELIVERED ON : 25.10.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.248 of 2008
: Appellant/
Seshaiah Sole Accused
Vs.
State represented by
The Inspector of Police,
Vigilance and Anti-corruption,
Thoothukudi.
(Crime No.15 of 2003) : Respondent/
Complainant
PRAYER: Appeal is filed under Section 378 of the Code of Criminal Procedure,
against the Judgment and sentence dated 29.04.2008 passed in Special Case
No.1 of 2006 by the learned Assistant Sessions Judge cum Chief Judicial
Magistrate, Thoothukudi.
!For Appellant : Mr.AR.L.Sundaresan,
Senior counsel for M/s.AL.Gandhimathi
^For Respondent : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor.
:JUDGMENT
The Judgment of conviction and sentence dated 29.04.2008 passed in Special Case No.1 of 2006 by the learned Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi is being challenged in the present Criminal Appeal.
2.The appellant is the sole accused in Special Case No.1 of 2006 on the file of the learned Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi. He was found guilty for the offence under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 [hereinafter referred to as 'P.C. Act'].
3.The brief facts of the case are as below:
(i)The appellant P.Seshaiah, Foreman?Grade-I, Tamil Nadu Electricity Board, Pudukkottai, on 13.11.2003, has demanded a sum of Rs.200/- as gratification other than legal remuneration as a motive, from Thiru.Alagumurugan, Electrical Wiring Contractor, for giving new electricity service connection to the house of one Thiru.Irudhayaran. Not willing to pay bribe, Alagumurugan has preferred a complaint to the Inspector of Police, Vigilance and Anti Corruption, Thoothukudi on 14.11.2003. The complaint has been taken on file by registering a case in Crime No.15 of 2003 by the Inspector of Police, Thiru.Rajendiran.
(ii)Trap was arranged by Rajendiran and pursuant to the trap, two official witnesses, namely, Somasundaram and Periyanayagam were called to the Vigilance and Anti Corruption office at Thoothukudi. In their presence, the significance of phenolphthalein-sodium carbonate test was demonstrated. The bribe money of two 100 rupee currency notes were smeared with phenolphthalein and kept in the shirt pocket of the complainant, Alagumurugan. He was instructed to go along with Somasundaram and met the accused at his office, if the accused demands money, Alagumurugan should take out the tainted currency and give it to the accused and also instructed to convey the prearranged signal to the trap team after the accused received money.
(iii)Accordingly, after preparing the entrustment mahazar by 01.45 p.m. on 14.11.2003, the de facto complainant along with the shadow witness, went to the office of the accused at TNEB Office, Yadava Street, Pudukkottai.
When the de facto complainant met the accused, he reiterated his earlier demand to the complainant and accepted the bribe of Rs.200/-. After receiving the prearranged signal from the de facto complainant, the trap team entered the office of the accused, conducted phenolphthalein test in his right and left hand. The sodium carbonate colour turned into pink when his right hand was dipped and no significant change in the left hand wash. Rs.200/- was recovered from the accused, which he has kept in his right side pant pocket. The pant pocket portion was also subjected to phenolphthalein test and proved positive. Apart from the tainted money which was found tallied with the numbers noted in the entrustment mahazar, the accused also had in his possession a sum of Rs.6,008/-, which he could not properly account for. Therefore, along with the tainted money, Rs.6,008/- was also seized under mahazar.
(iv)After recording the statements of the staff in the TNEB office and other witnesses, the prosecution has laid final report on obtaining sanction to prosecute the accused from the competent authority.
(v)The Trial Court has framed charge under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act.
(vi)To prove the charges, the prosecution has examined 13 witnesses. Through these witnesses, 32 exhibits and 16 material objects were marked. On the side of the defence, no witness nor document marked.
(vii)The Trial Court after considering the evidence let in by the prosecution and the defence theory to probabilise his innocence, held the accused guilty.
4.Aggrieved by that the present criminal appeal is preferred on the ground that the building for which electricity service connection sought, belongs to Irudhayaraj (P.W.7). P.W.2 is an electrical contractor. He is not competent to lodge complaint alleging the appellant demanding illegal gratification for providing electricity service connection to P.W.7. Further, the appellant would contend that the enmity between P.W.2 and the accused regarding his professional conduct, has not been considered by the Trial Court. Despite evidence to show the previous enmity between P.W.2 and the appellant, which has prompted P.W.2 to give false complaint against the appellant, though he is unconnected to the application made by P.W.7 seeking electricity service connection. The Court below has ignored it.
5.The learned senior counsel appearing for the appellant/ accused would submit that the appellant being a foreman in TNEB is not the competent person to give electricity service connection. P.W.2, electrical contractor, who frequently visit TNEB office in connection with his profession, know that the appellant is not the authority to give electricity service connection. But, with mala-fide intention, had given complaint against the appellant and also deposed against him.
6.The appellant herein was entrusted the job of recruiting small farmers for electricity subsidy. For the said purpose, charge of Rs.200/- has to be collected for name transfer. Under the pretext of tendering fees for name transfer, Rs.200/- has been planted by P.W.2. The Trial Court has not considered the said explanation given by the accused. Therefore, it is contended by the learned senior counsel appearing for the appellant/accused that the Judgment of the Trial Court is liable to be set aside and the appellant/accused has to be acquitted.
7.The learned Additional Public Prosecutor appearing for the State would submit that P.W.2 is a licensed electrical contractor. Since P.W.7, Irudhayaraj is an unlettered man, on his request P.W.2 has approached TNEB for electricity service connection. On 13.11.2003, he paid Rs.1,770/- for installation charge and submitted the application along with the house tax receipt and other documents. The Junior Engineer, who received the application form, made his initial in the form and handed over the same to the Commercial Inspector. He was not able to get the signature of the house owner in the test report, since the house owner was not in his house. Thereafter, he met the accused and explained his difficulty in getting the signature of the house owner on the same day. At that time, the accused told the de facto complainant to bring Rs.200/- as bribe when he give the test report form duly signed by the house owner. Since P.W.2 was not inclined to give bribe, he has given the complaint to the Vigilance and Anti Corruption Department. Pursuant to the complaint (Ex.P.5), trap was arranged by Rajendiran (P.W.9).
8.The learned Additional Public Prosecutor appearing for the State would further submit that when the de facto complainant (P.W.2) along with the shadow witness (P.w.3) met the accused, he reiterated the demand of bribe and accepted the same and kept it in his shirt pocket. The trap team led by Rajendiran (P.W.9), recovered the tainted money from the possession of the accused after conducting phenolphthalein test. The de facto complainant (P.W.2) and the shadow witness (P.W.3) have spoken about the demand and acceptance of bribe by the accused. Tmt.Helan Geetha (P.W.4), Junior Engineer, who was present at the time of trap has corroborated the case of the prosecution regarding recovery of tainted money from the possession of the accused. Further she has also deposed in detail about the responsibility of the foreman in TNEB, which clearly proves that as a foreman, the accused has a role in reporting about the compliance of wiring in the premises to which new service connection is sought.
9.Thus, the learned Additional Public Prosecutor appearing for the State would submit that through oral and documentary evidence, the prosecution has proved beyond doubt that Rs.200/- recovered from the accused is not a remuneration permitted to receive, but a illegal gratification as a reward to process the test report. The defence theory regarding receipt of Rs.200/- has no supportive evidence and the Trial Court has rightly held the accused guilty and no necessity to interfere in the well considered Judgment of the Trial Court.
10.Point for consideration:
?Whether the Trial Court is erred in relying upon the prosecution witnesses to hold the appellant/accused guilty??
11.P.W.2 is the informant. He has set the criminal law into motion by lodging complaint against the appellant. His complaint is marked as Ex.P.5. The complaint of P.W.2 is self-explanatory regarding his locus and reason for lodging the complaint. He being a licensed electrical contractor, he has taken the contract of electrifying the residential premises of one Irudhayaraj (P.W.7), a collie. P.W.7 had expressed his difficulty in contacting EB office to get the electricity service connection. Therefore, P.W.2 has taken the responsibility of approaching the EB officials to get the electricity service connection.
12.In this case, on 13.11.2003, P.W.2 has given the application for electricity service connection to the Junior Engineer. He has put his initial in the application and had given it to the Commercial Inspector. The Commercial Inspector has noted the amount to be deposited. Accordingly, P.W.2 has deposited Rs.1,770/- and got the receipt. Ex.P.2 is the electricity service connection requisition application and Ex.P.4 is the receipt issued by TNEB for Rs.1,770/-. The test report form has to be signed by the house owner. Therefore, P.W.2 has gone to the house of Irudhayaraj to get his signature. He was told by Tmt.Karpagam (P.W.8), wife of Irudhayaraj that Irudhayaraj will come only after 09.00 p.m. These facts were spoken by Alagumurugan (P.W.2), Irudhayaran (P.W.7) and Karpagam (P.W.8). After 09.00 p.m., on 13.11.2003, P.W.2 again has gone to the house of Irudhayaraj and got the signature in the test report form. Since the accused has demanded Rs.200/- as bribe, P.W.2 has given the complaint (Ex.P.5) and shown all the documents related to the application for electricity service connection to the trap laying officer and official witnesses. This fact is spoken by the shadow witness (P.W.3) and Rajendiran (P.W.9). The above facts would prove the necessity for P.W.2 to lodge complaint against the appellant/accused and from these evidence, the Court could not find any mala-fide in the complaint.
13.Case of this nature, anyone can set the criminal law into motion. The complainant need not be a party aggrieved. But in this case, though P.W.2 is not the house owner, being the contractor for electrifying the house and taken the responsibility to get electricity service connection, he is the person aggrieved by the illegal demand made by the appellant/ accused. Therefore, the plea raised by the appellant/accused that the Trial Court has failed to doubt why P.W.2 met the appellant/ accused to get electricity service connection for P.W.7, does not carry any merit. The evidence of Alagumurugan (P.W.2), Irudhayaran (P.W.7) and Karpagam (P.W.8) provides the answer for this plea and the Trial Court has rightly considered this and has negatived the defence taken by the appellant/accused.
14.The learned senior counsel appearing for the appellant/ accused would submit that P.W.2 as an electrical contractor was charging exorbitantly from the consumers and hence, he was not suggested for electrical work by the appellant/accused. Therefore, having grudge over him, under the pretext of paying Rs.200/- towards name transfer of agricultural service connection, P.W.2 has fixed him in this case.
15.To buttress this submission, the learned senior counsel has pointed out the deposition of the witnesses, wherein it is elicited through the cross-examination that the appellant/accused was entrusted with the responsibility of enumerating agricultural service connections for providing power at subsidized rate. For that purpose, the names of beneficiaries to be recorded if the service connection does not stand in the name of the present beneficiary.
16.This defence could have been accepted by the Trial Court, if the appellant had produced any document to fortify his submission that when he received Rs.200/- from P.W.2, there was some application for name transfer or atleast P.W.2 had some agricultural land and service connection in it, for which he sought for name transfer and for that purpose he offered Rs.200/- and the same was received by the appellant. The appellant had not produced any such evidence to infer that the money he received from P.W.2 was meant for name transfer or alteast the appellant while obtaining Rs.200/- from P.W.2, had bona-fidely believed that the money was offered to him towards the name transfer charge. Just because Rs.200/- has been fixed as charge for name transfer, the money received by the appellant could not be presumed to be for that purpose, unless there is some supportive documents. In this case, there is no iota of evidence to show that Rs.200/- obtained by the appellant was towards name transfer charge of any of the consumer. Therefore, when the prosecution has proved receipt of tainted money from P.W.2 and the appellant is unable to explain that he received the money not as a gratification otherwise than legal remuneration, he is to be held guilty.
17.In addition, in this case, it is not Rs.200/- alone recovered from the appellant/accused during the trap, a further sum of Rs.6,008/- recovered from the appellant/accused, for which he could not give any plausible explanation. For the above said reasons, this Court finds no error in the finding of the Trial Court. Hence, the conviction imposed upon the appellant/accused is liable to be confirmed.
18.As far as the sentence is concerned, this Court finds that the Trial Court though found the appellant/accused guilty for offence under Sections 7 as well as 13(2) read with 13(1)(d) of P.C. Act, had not imposed any separate sentence for Section 7 of P.C. Act and imposed rigorous imprisonment for 2 years and fine of Rs.1,000/- in default to undergo 6 months rigorous imprisonment for the offence under Section 13(2) read with 13(1)(d) of P.C. Act. The Presiding Officer has committed error in not imposing separate sentence for Section 7 of P.C. Act, inspite of statute prescribing minimum sentence for the offence under Section 7 of P.C. Act. Hence, the error to be rectified by modifying the sentence without causing prejudice to the accused/appellant.
19.As a result, this Criminal Appeal is partly allowed. The conviction dated 29.04.2008 passed in Special Case No.1 of 2006 by the learned Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi is confirmed and the sentence imposed on the appellant/accused is modified as under:
Sl.No. Offence Sentence imposed by the Trial Court Sentence modified by this Court
1.
Section 7 of P.C. Act
----
1 year rigorous imprisonment and to pay fine of Rs.500/-, in default to undergo 6 months rigorous imprisonment.
2. Section 13(2) read with 13(1)(d) of P.C. Act.
2 years rigorous imprisonment and to pay fine of Rs.1,000/-, in default to undergo 6 months rigorous imprisonment.
1 year rigorous imprisonment and to pay fine of Rs.500/-, in default to undergo 6 months rigorous imprisonment.
The period of sentence already undergone by him is ordered to be set off under Section 428 Cr.P.C. The sentences are ordered to run concurrently. The Trial Court is directed to secure the appellant/ accused and commit him to prison to undergo the remaining period of sentence. The bail bond, if any, executed by him shall stand cancelled.
To
1.The Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi.
2.The Inspector of Police, Vigilance and Anti-corruption, Thoothukudi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.
.