Madras High Court
Unknown vs State Rep. Through on 19 December, 2014
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.12.2014 CORAM THE HONOURABLE Ms.JUSTICE R.MALA Criminal Appeal (MD) No.79 of 2008 and M.P.(MD) No.3 of 2014 1.Kanagasabapathy 2.Sivaraman (died) 3.Pushpam (R3 is impleaded as per the order of this] court dated 07.02.2014 made in M.P.(MD) No.2 of 2014 ... Appellants Vs State rep. through Deputy Superintendent of Police, Vigilance and Anti-Corruption Crime No.4 of 2000 Tuticorin. ... Respondent Prayer: Criminal appeal filed under Section 374 Cr.P.C., to set aside the judgment of conviction and sentenced dated 25.01.2008 made in Spl.Case.No.2 of 2002 on the file of the Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi. !For appellant : Mr.K.Baalasundaram for A1 Mr.P.Andiraj for A2 ^For Respondent : Mrs.S.Prabha, G.A.( Crl. Side) :JUDGMENT
Date of Reserve : 15.12.2014 Date of pronouncement : 19.12.2014 The Criminal Appeal is directed against the judgment of conviction and sentence dated 25.01.2008 made in Spl.Case.No.2 of 2002 on the file of the Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi, wherein A1 and A2 are convicted and sentenced as follows:
Name of Accused Charges Finding Sentence A1.
Kanakasabapathy Secs.7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act, 1988 and Section 201 of I.P.C.
Found guilty under Secs.7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act, 1988 and Section 201 of I.P.C.
Secs.7 and 13 (2) read with 13(1) (d) of P.C.Act: 3 years R.I. And fine Rs.1,000/- in default 3 months S.I. 201 I.P.C.:fine Rs.1,000/- in default 3 months S.I. A2 Sivaraman Secs.7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act, 1988 and Section 201 of I.P.C.
Found guilty under Secs.7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act, 1988 and Section 201 of I.P.C.
Secs.7 and 13 (2) read with 13(1) (d) of P.C.Act: 3 years R.I. And fine Rs.1,000/- in default 3 months S.I. 201 I.P.C.:fine Rs.1,000/- in default 3 months S.I.
2.The case of prosecution briefly is as follows:
i) A1 V.Kanagasabapathy was the Inspector of Police, Puliyampatti Circle from 19.04.1999 to 08.09.2000. A2 Sivaraman was the Head Constable in the same station during 11.12.199 to 08.09.2000. P.W.2 Ganesan was residing at Kodiyankulam. He has been working at Kuwait and returning to India during the time of occurrence. On 13.08.2000, P.W.2 Ganesan made a complaint Ex.P2 against one Kuralimani @ Mani and Sivarasan @ Mani for taking action against them stating that they abusing and threatening him. A1 has received the complaint and handed over it to P.W.5, who made entry in General Diary and given C.S.R No.42 of 2000 and issued receipt Ex.P3. Since no action was taken on the complaint, P.W.2 gone to the police station and asked about the complaint, for which, the A1 demanded Rs.1,500/- and A2 demanded Rs.300/- as bribe for taking action against the said Kuralimani @ Mani and Sivarasan @ Mani.
(ii)On 06.09.2000, when he approached them, they reiterated their earlier demand and reduced the bribe amount as Rs.1,000/- to A1 and Rs.200/-
to A2 and the same would be given on or before the evening of 08.09.2000. Therefore, on 08.09.2000, at about 11.00 a.m., P.W.2 and his brother G.Rajkumar, P.W.7 gone to the Office of Vigilance and Anti Corruption, Millerpuram Tuticorin and has given a complaint, Ex.P4.
(iii)P.W.12 Mr.Shanmuganathan, Inspector of Police received the complaint Ex.P4 and registered a case in crime No.4 of 2000 for the offence under Section 7 of Prevention of Corruption Act and prepared Ex.P26 and he intimated the same to the Deputy Superintendent of Police and obtained permission to prosecute against the accused. Thereafter, trap witnesses were called upon and he demonstrated the trap proceedings and phenolphthalein test to trap crew and prepared entrust mahazer Ex.P6 and thereafter, they proceeded to Puliyampatti police station at 05.30 p.m. At that time, P.W.3 Soundararaj accompanied with them. P.Ws.2, 3 and 7 entered into the police station. At that time, A1 Inspector of Police was available in his room in civil dress and he demanded the bribe money and P.W.2 gave the bribe amount of Rs.1,000/-, which was accepted by A1 and kept in his left side shirt pocket and A2 has come from the nearby room and demanded money and P.W.2 gave a sum of Rs.200/-, and the same was accepted by A2. Thereafter, P.W.2 came out of the police station and made a signal as mentioned by P.W.12. Then, P.W.12 along with his crew entered into the police station and on seeing them, A1 swallowed the amount, which was recovered by P.W.12 and the phenolphthalein test was conducted, which turned into positive and he prepared mahazers Ex.P10 and 11 and drew rough sketch Ex.P27. On seeing the trap parties, A2 ran away from the police station. Therefore, he recovered the number batch CNR 1631, 3 lines of sovereign, Pant with uniform, Hat and belt and the chappals, which were left by A2 under mahazer Ex.P12. Thereafter, P.W.13, Mr.Maluk Mudhali, Deputy Superintendent of Police, arrested the accused and sent them to judicial custody and recorded the statement of witnesses and thereafter, receiving the sanction order Ex.P1 accorded by P.W.1, and filed final report against the accused for the offence under Sections 7 and 13(2) read with 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
3.The learned trial Judge, after following the procedures, framed necessary charges against the accused. Since the accused pleaded not guilty, to prove the charges, P.Ws.1 to 13 were examined and Exs.P1 to P32 and M.Os.1 to 14 were marked. Accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied the same in toto and stated that a false case has been foisted against them. D.Ws.1 and 2 were examined and Exs.D1 to D4 were examined on the side of the accused.
4.On considering the oral and documentary evidence, the learned Sessions Judge found the appellants are guilty for the offence under Sections 7, 13(2) read with 13(1)(d) of prevention of corruption Act and Section 201 of I.P.C. and convicted them to undergo rigorous imprisonment for a period of three years each and to pay a fine of Rs.1000/- each in default to undergo three months rigorous imprisonment each for the offence under Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and also sentenced them to pay a fine of Rs.1,000/- each in default to undergo three months simple imprisonment each for the offence under Section 201 of I.P.C. Challenging the said judgment of conviction and sentence, A1 and A2 have preferred this appeal. During the pendency of the appeal, A2 Sivaraman died and hence, his wife was permitted to conduct the appeal on behalf of him and she was impleaded as A3 as per the order of this court dated 07.02.2014 made in M.P.(MD) No.2 of 2014
5. Challenging the said conviction and sentence passed by the trial Court, the learned counsel for the first appellant would submit that P.W.7 Rajkumar, who is the brother of P.W.2 Ganesan, the defacto complainant was having so many criminal cases and he has enmity against the first appellant and hence, a false complaint has been given with the help of his brother, P.W.2. He further submitted that the complaint Ex.P2, which was foundation to the prosecution itself was not given to A1 and he also has not signed the same and A1 would not present at Puliyampatti police station on the date of presentation of Ex.P2 i.e. on 13.08.2000 and that factum was not considered by the trial Court.
5.1.He further submitted that the first demand alleged by the prosecution was not proved and the second demand was also not proved. The presence of the accused at the time of alleged demand was also not proved and hence, the benefit of doubt shall be given to the accused. To substantiate the same, he relied upon the decision reported in 2010(2) MLJ (Crl.) 225 ? D. Dass V. State.
5.2.He further submitted that even the recovery has been proved, the non proving of demand is fatal to the case of prosecution as per decisions of the Apex Court reported in
(i) 2006 (1) Supreme Court Cases (Cri.) 401 ? T.Subramanian Vs. State of Tamil Nadu
(ii) 2014 SAR (Criminal) 554 Supreme Court ? B.Jayaraj Vs. State of A.P. 5.3.He further submitted that the recovery was not proved and there are contradictions between the entrustment of currency notes and the recovery of currency notes and that factum was not considered by the trial Court and he further submitted that if there are number of contradictions and discrepancies in the case of prosecution, benefit of doubt shall be given to the accused as per the decision reported in 2010(1) MLJ 541 ? A.V.Vijayarangan and others V. State.
5.4.He further submitted that P.W.3 Tr.Soundararajan, who was the trap witness cannot be witnessed the recovery and any occurrence. He relied upon the decision in Som Prakash V. State of Punjab reported in AIR 1992 SC 665. The investigating officer is not competent to investigate the matter and the sanction is not valid. To substantiate the argument, he relied upon the decision of the Apex Court reported in AIR 2014 SC 827 ? C.B.I. Vs. Ashok Kumar Aggarwal and submitted that the sanction authority has not scrutinized Ex.P2 petition complaint, which was the foundation for the prosecution case, which does not contain signature of A1/1st appellant. He also relied on the followng decisions to that effect:
(i)2006(7) SCC 172 ? State Inspector of Police V. Surya Sankaram Karri,
(ii)State of Karnataka V. Ameer Jan reported in 2008(1) Supreme Court Cases (Cri) 130,
(iii)R.Gunalan and another V. The State by Deputy Superintendent of Police Vigilance and Anti Corruption Department, Erode, reported in 2012(1) LW (Crl.) 303, 5.5.He further submitted that P.Ws.2 and 7 are the brothers and P.W.7 was facing so many criminal cases and that factum was not considered. Even though the independent witnesses are available, no one was examined and only the interested witnesses alone were examined and the same is fatal to the case of prosecution. To substantiate the same, he relied upon the decision reported in 2012(1) LW (Crl.) 303 ? R.Gunalan and another Vs. The State.
5.6.He would further submit that P.W.7 was having so many criminal cases and non bailable warrant has been issued against him and hence, he has motive against A1 and hence, the evidence of P.W.7 cannot be looked into. To substantiate the same, he relied upon the decision reported in 2011(2) SCC 1010 ? State of Kerala and another Vs. C.P.Rao.
5.7.He further submitted that the other trap witness, who was said to have accompanied the trap parties, was not examined before the trial Court and that factum has not been considered by the trial Court and the trial Court, without considering those facts, has erroneously convicted the first appellant and hence, he prayed for setting aside the conviction and sentence.
6.The learned counsel appearing for the second appellant would submit that since there was enmity between Mr.Jangid, the then Superintendent of Police, Tuticorin and A2, at the instigation Mr.Jangid, a false case has been foisted against him. To prove the same, documents have been marked and no recovery of money from A2 and no phenolphthalein test has been conducted and the non production of pocket note book of A2 is fatal to the case of prosecution and hence, he prayed for setting aside the conviction.
6.1.The learned counsel for the second appellant would submit that the prosecution has to prove the guilt of the accused beyond all reasonable doubt, but, the accused has proved his defence by preponderance of probabilities. The explanations given by the accused has to be accepted. To substantiate his arguments, he relied upon the following decisions:
(i)C.M.Girish Babu V. C.B.I. Reported in 2009(3) SCC.
(ii)A.V.Vijayarangan and others V. State reported in 2010(1) MLJ (Crl.) 541,
(iii)J.Sunder @ Sundaram V. State reported in 2012(1) MLJ (Crl.) 9,
7.Resisting the same, the learned Government Advocate (Criminal side) would submit that the sanction is valid in law. P.W 1 after considering all the papers, has accorded sanction. To substantiate the same, she relied upon the following decisions:
(i)2007(2) Supreme Court Cases (Cri) 563 ? R.Sundararajan Vs. State,
(ii) AIR 2011 SC 356 ? Kootha Perumala V. State Tr. Inspector of Police, Vigilance and Anti Corruption
(iii)2013 CrI. L J 3092 ? State of Maharashtra Vs. Magesh G. Jain.
7.1.She further submitted that P.W.13 was the competent person to investigate the matter and non production of other part of the receipt does not create doubt. The complaint given by P.W.2 is marked as Ex.P2. P.W.7, the brother of P.W.2 was facing so many cases, which was ended in acquittal and there is no possibility for P.W.2 to have any personal motive against A1. The demand made by A1 has been proved by examining P.W.2 and it was corroborated by P.W.7 and P.W.3. The presumption under Section 20 of the Prevention of Corruption Act is there and once the ingredients of Section 7 of the Prevention of Corruption Act, is proved, it is the duty of the accused to give plausible explanation, but, they have not given the same. P.W.12 is the Trap Laying Officer, who conducted the trap in a fair manner and he is the competent to conduct the trap and there is no violation of any vigilance manual and P.W.13, Deputy Superintendent of Police is a competent person to investigate the matter. The trial Court, after considering all these aspects in a proper and perspective, has come to the correct conclusion and hence, prayed for the dismissal of the appeal.
SANCTION
8.Considering the rival submissions made by both sides and on perusal of the typed set of papers, this Court has to be decided as to whether the sanction accorded by P.W.1 is valid? A1 was the Inspector of of Police and A2 was the Head Constable, worked at Puliyampatti police station and they were the public servants and there was no quarrel on the same. The competency of P.W.1 was not questioned. He is the competent person to accord sanction for prosecution against A1 and A2 and after going through the entire papers, satisfied himself, accorded sanction under Ex.P1.
8.1.According to the prosecution, the defacto complainant P.W.2 returned from Kuwait on 28.07.2000 and on 11.08.2000, when he has gone to his land for taking bath, one Kuralimani @ Mani and Othaikan Sivarasan @ C.N.Mani have made criminal intimidation and abused them with filthy language and hence, he intimated the same to his brother P.W.7 and on 13.08.2000, they gone to the Puliyampatti police station and gave a complaint Ex.P2 before A1 and that has been received by A1 and handed over to P.W.5, who has given C.S.R.No.42 of 2000 and issued receipt Ex.P3. Since, they have not taken any steps, they approached A1 and A2 in the police station, where the demand of bribe was made by A1 for Rs.1,500/- and by A2 Rs.300/- for taking action on Ex.P2 and after bargaining they reduced the same to Rs.1000/- and Rs.200/- respectively. Since P.W.2 was not willing to pay that amount, he gave a complaint before the Vigilance and Anti Corruption department i.e. Ex.P4. So, Ex.P2 is the basis for giving complaint against A1 and A2. Admittedly, Ex.P2 does not contain any signature of A1. Whereas, when P.W.1 was in witness box, a suggestion was posed him that he has not perused the documents, which was denied by him.
8.2.It is well settled dictum of the Apex Court that while discharging the duty, each and every day, the responsible officer has to peruse voluminous of documents and they would not remember minute details of the document, without seeing the same. In such circumstances, merely because it has been stated that A1 has forwarded the petition complaint Ex.P2 to P.W.5, for taking action, it will not be a reason for discarding the evidence of P.W.1. Perusal of Ex.P2, there is no forwarding endorsement made by A1. Since P.W.1 in his evidence has stated that the forwarding of petition by A1, it will not be a reason for coming to the conclusion that P.W.1 has not applied his mind to accord sanction.
8.3.It is appropriate to consider the decision relied on by the learned Government Advocate (criminal side) in P.Sundararajan V. State reported in 2007(2) Supreme Court Cases (Cri.) 563, wherein, the Apex Court held that the order granting sanction shows that all the available materials were place before the sanctioning authority, who considered the same in great detail and only because some of the said material could not be proved, the same by itself, would not vitiate the order of the sanction. It is appropriate to incorporate para 14 of the said decision:
?Para 14.In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in out opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence, we do not agree that the sanction order was in any way vitiated.
8.4.Now, it is appropriate to consider the decision relied on by the learned counsel for the first appellant in State of Karnataka V. Ameer Jan reported in 2008(1) Supreme Court Cases (Cri) 130, Wherein, the Apex Court has held that the sanction order issued without considering the entire material records collected against the accused would vitiate the order of sanction on the ground of non application of mind. The relevant portions in paras 7, 19 and 20 are extracted hereunder:
?Para 7. In particular, the following findings of the High Court were criticized submitting that the same do not lay down the correct legal position:
" .... The additional reason for this view is because there is an entirely different aspect of the law which applies to cases of this category insofar as the courts have now held that if the amount involved is relatively small, if it is a single isolated instance and there is no evidence of habitual bribe taking or assets disproportionate to the known sources of income that the sanctioning authority will have to carefully evaluate as to whether the interest of justice will not be adequately served by taking disciplinary action rather than by burdening the courts with full-fledged prosecution in a case of relatively trivial facts. These are all areas of deep-seated evaluation which can only be truly justified through a proper perusal of the records. I am unable to accept the submission put forward by the learned Public Prosecutor that the reference to the receipt of the records is sufficient to get over the basis infirmity in the sanction order wherein the authority is quick to state that he acted only on the basis of the letter from the Inspector General of Police ..."
8.........
9.........
19.In this case, the High Court called for the original records. It had gone thereinto. It was found that except the report no other record was made available before the sanctioning authority. The order of sanction also stated so. PW 8 also did not have the occasion to consider the records except the purported report.
20. We are, therefore, of the opinion that the impugned judgment does not suffer from any legal infirmity although some observations made by the High Court, as noticed hereinbefore, do not lay down the correct legal position.?
8.5.For the same proposition, a portion of para 14 of the decision reported in AIR 2011 Supreme Court 356 ? Kootha Perumal V. State Tr.Inspector of Police, Vigilance and Anti Corruption is also extracted hereunder:
?Para 14 . .... Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also stated that the other materials such as copy of the FIR as well as other official documents such as the different mahazers were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority had duly recorded its satisfaction that the appellant should be prosecuted for the offences as noticed above.
8.6.In 2013 Crl. L.J. 3092 ? State of Maharashtra V. Mahesh G.Jain, wherein para No.13, it was mentioned as to what are the principles to be followed while according sanction, which is also extracted hereunder:
?Para 13. From the aforesaid authorities the following principles can be culled out:-
(a)It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b)The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c)The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d)Grant of sanction is only an administrative function and the sanctioning, authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e)The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f)If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g)The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
8.7.In R.Gunalan and another V. The State by Deputy Superintendent of Police Vigilance and Anti Corruption Department, Erode, reported in 2012(1) LW (Crl.) 303, in para 26, this Court has held as follows:
?Para 26. As held by the Honourable Supreme Court in various cases that the need for sanction has arisen because it is in public interest that a public servant should be saved from the harassment of frivolous or unsubstantiated allegations. Grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants and must therefore be strictly complied with before any prosecution can be launched against a public servant concerned. It is also held that the impugned order of conviction cannot be reversed on the ground of irregularity in the sanction unless failure of justice has occasioned thereby.?
8.8.It is appropriate to consider the decision relied on by the learned counsel for the appellant reported in AIR 2014 SC 827 ? C.B.I. V. Ashok Kumar Aggarwal, wherein, it was held that the sanctioning authority has to do complete and conscious scrutiny of all the documents placed before him and perusal of the sanction order should show that the authority has considered all the relevant facts and applied his mind. It is appropriate to incorporate para 8 of the above decision.
?Para 8. In view of the above, the legal propositions can be summarised as under:
(a)The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b)The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c)The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d)The order of sanction should made it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e)In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the and that the sanction had been granted in accordance with law.
8.9.Considering the above said citations along with the facts of the present case and the evidence of P.W.1, P.W.1 in his evidence has stated that he gone through the entire relevant material papers including Ex.P2 and after satisfied himself, he accorded sanction. Merely because Ex.P2 has not contained any forwarding endorsement alleged to be made by A1, it will not vitiate the sanction as per the dictum of Apex Court reported in 2007(2) Supreme Court Cases (Cri) 563 ? R.Sundararajan Vs. State, relied on by the learned Government Advocate (criminal side). Hence, I am of the view that the argument advanced by the learned counsel for the appellants that the sanction authority has not applied his mind, while granting sanction for prosecution does not merit acceptance.
THE RELIANCE OF EVIDENCE OF P.W.2 and P.W.7:
9.Now, this Court has to decide whether the evidence of P.Ws.2 and 7 is reliable or not? Evidence of P.Ws.2 and 7 would clearly prove that P.W.7 has involved in so many cases and non bailable warrant has been issued against him and the same is pending. P.W.7 himself has conceded that so many case were pending against him. But, he has denied that non bailable warrant was pending against him. In his cross examination, he has deposed that seven cases were pending against him. Moreover, P.W.4, Shahul Hameed, Head Constable, who was working at Puliyampatti police station has also deposed that P.W.7 was having so many cases. But, P.Ws.5 and 6 have deposed that they do not know the pendency of cases and non bailable warrant is pending against P.W.7 and hence, the argument advanced by the learned counsel for the appellants that since non bailable warrant issued against P.W.7 was pending and the police people have taken steps to execute the warrant, to escape from the clutches of law, P.W.7 with the help of his brother has given a false complaint does not merits acceptance.
9.1.It is true that the trial Court has held that P.W.2 has no bad antecedent and he has returned from Kuwait only on 28.07.2000 and he has given complaint against Kuralimani @ Mani and Othaikan Sivarasan @ C.N.Mani on 13.08.2000. Since no action has been taken, P.Ws.2 and 7 met A1 and A2 and at that time, the appellants have demanded money, it was stated that the accused/appellants have demanded money. Hence, I am of the view that the evidence of P.w.7 is not wholly reliable and the evidence of P.W.2 is partly reliable.
THE PRESENCE OF A1 and A2 IN THE POLICE STATION on 13.08.2000 and 06.09.2000:
10.It is an admitted fact that Puliyampatti police station is not having an independent Inspector of Police. A1 is the Circle Inspector having jurisdiction of three police stations viz., Puliyamptti, Pasuvanthanai and Naraikinaru. The Station House Officer of Puliyampatti police station is Sub Inspector of Police. It is the duty of the prosecution to prove that on the date of the complaint viz., 13.08.2000 A1, the Inspector of police was present at Puliyampatti police station. To prove the same, P.W.5 Sampath was examined. In his evidence, he has deposed that on 13.08.2000, when he was in the police station, A1 and A2 were present and P.W.2 has given a complaint and P.W.5 has given CSR NO.42 of 2000, C.S.R. Register was marked as Ex.P16 and he issued receipt Ex.P3. Thereafter, they gone to Circle office and in the presence of A1, A2 has given the receipt to P.W.2. He has further deposed that on 06.09.2000 at about 09.45 a.m., P.Ws.2 and 7 came and met A1. In his cross, he has fairly conceded that the Inspector has only dealing with grave offence and not simple offence and that would be dealt by the Sub Inspector of Police. He has also deposed that at the time of receiving Ex.P2, the Sub Inspector of Police was not there. There is no endorsement made in the receipt Ex.P2 that the petition has been received as per the instructions given by the Inspector of Police, A1. Hence. Ex.D1 has proved that the first appellant was in the Publiyampatti Police station on 13.08.2000.
10.1.Now, this Court has to decide as to whether A1 was in the Puliyampatti police station during the relevant time i.e. On 06.09.2000, when the first demand was made. . To prove the same, Ex.P31 has been marked, wherein, it was stated "g[spak;gl;o. EhiufpzW fhtyh;fs; ftdpj;J g[spak;gl;oia ghh;f;fg;gl;lJ." Perusal of General Dairy dated 06.09.2000, Ex.P22 would show that the first appellant was in Puliyampatti police station. Hence, the prosecution has proved that P.Ws.2 and 7 met A1 on 06.09.2000 at 09.45 p.m. at Puliyampatti police station. Therefore, I am of the view that on 06.09.2000, A1 was very much available in the Puliyampatti police station. 10.2.As discussed above, the evidence of P.Ws.2 and 5 has proved that the appellants were present in the police station on 13.08.2000 and 06.09.2000 and hence, the demand on 06.09.2000 has been proved by the prosecution beyond all reasonable doubt.
THE PRESENCE OF A1 and A2 IN THE POLICE STATION 0n 08.09.2000:
11.Now, this Court has to decide as to whether the appellants were available in police station on 08.09.2000. Admittedly, the trap proceedings were initiated only on 08.09.2000. P.W.3 Soundararaj, was examined as shadow witness. In his evidence, he has stated that at 5.40 p.m., A1 was available in the police station in civil dress. At that time, he demanded money and P.W.2 has given the money to him and A1, after receiving and counting the same, he kept the same into him left side shirt packet. At that time, A2 has also demanded the money and the complainant has given the money to A2, which was received by him. Hence, the presence of A1 and A2 in the police on 08.09.2000 at the time of trap proceedings has been proved by the prosecution.
11.1.The learned counsel for the appellants mainly focussing that the evidence of P.W.3 Soundararaj is unacceptable. P.W.2 himself, in his evidence has deposed that when they proceeding to Puliyampatti, along with him, his brother, Inspector Shanmuganathan and one police and two witnesses came and P.W.3 soundararaj was also joined with them. As per the evidence of Trap Laying Officer, P.W.12, Mr.Shanmuganathan, they reached the police station at 6.00 p.m and then only, he conducted recovery proceedings.
Perusal of the evidence of P.W.3, no suggestion has been posed him by the appellants as to why he has given an evidence against them. Hence, there is no reason for discarding their evidence and he has not personal enmity against the appellants and his evidence is reliable.
11.2.It is true, the trap witnesses are not independent witnesses. Their evidence needs corroboration. It is appropriate to consider the decision of Apex Court in Som Prakash V. State of Punjab reported in AIR 1992 SC 665, where, the Apex Court has held in para 2 as follows:
?2.The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the bill which was delayed for unreasonable period had suddenly been passed by the appellant. On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained.?
Therefore, I am of the view that the evidence of P.W.3 is partly reliable, which needs corroboration and the evidence of P.W.3 has been corroborated by P.W.2. Besides this, P.W.9, Kamalakannan, Sub Inspector of Police has deposed in his evidence that the appellants were present on 08.09.2000 at 5.45 p.m. and he heard a noise and he witnessed the occurrence and at that time, the Inspector of Police was caught hold of by three or four persons and when he made enquiry, he came to know that they belong to Vigilance and Anti Corruption department. He further deposed at that time, it was stated that A2 Sivaraman ran away and he did not see him. Hence, the evidence of P.Ws.2, 3 and 9 has proved the presence of the appellants in the Puliyampatti police station on 08.09.2000 i.e. at the time of trap proceedings. 11.3.The learned counsel for the appellants had submitted that there was discrepancy in the entrustment of currency notes and in the entrustment mahazer and recovery mahazers. On perusal of evidence of P.W.2, P.W.3, P.W.12 and also the entrustment mahazers Ex.P6 and P10 would show that there is no discrepancy in the entrustment of the amount and also the recovery of the amount. Hence the argument advanced by the learned counsel for the appellants that there are discrepancies in the amount entrusted and the amount recovered does not merit acceptance.
COMPETENCE OF P.W.13 TO INVESTIGATE THE MATTER:
12.The learned counsel appearing for the appellants would submit that P.W.12 is the Inspector of Police and is not competent to investigate the matter. However, here, P.W.13, Mr. Maluk Mudhali, Deputy Superintendent of Police only has investigated the matter. It is appropriate to consider the decision of the Apex Court reported in 2006(7) SCC 172 ? State Inspector of Police V. Surya Sankaram Karri, wherein, in para 13, the Apex Court has held as follows:
?Para 13. Provisions of the 1988 Act, no doubt like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorised in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officers of the ranks specified therein to be imperative in character. The second proviso appended to section 17 of the Act provides that an offence referred to in clause (e) of sub-section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorisation by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall". Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been disputed before us that the investigating officer, PW 41 did not produce any record to show that he had been so authorised. Shri K.Biswal, the Investigating Officer, while examining himself as PW 41, admitted that he had not filed any authorisation letter stating:
"I have received the specific authorisation from SP, CBI, to register a case but I have not filed the said authorisation letter."
12.1Perusal of the evidence of P.W.13 would show that he is a Deputy Superintendent of Police and he is the competent person to investigate the matter. In such circumstances, it is appropriate to extract Section 17 of the Prevention of Corruption Act, 1988, which would run thus:
?17.Persons authorised to investigate:- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank, -
(a)in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b)in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c)elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant.
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf be general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or makes arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub- section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.?
Here, P.W.13 is a Deputy Superintendent of Police and he is a competent person and hence, the argument advanced by the learned counsel that P.W.3 is not a competent person to investigate the matter does not merit acceptance.
DEMAND, RECOVERY AND PHENOLPATHALEIN TEST:
13.As already stated, in respect of A1, the Inspector of Police, sanction has been accorded and that has been spoken to by P.W.1 and he is the competent person to accord sanction. The evidence of P.W.2 Ganesan also corroborated by the evidence of P.W.3 and the presence of the appellants on 13.08.2000 has been proved by way of examining P.W.5, who deposed in his evidence that he received the complaint from P.W.2 and gave a receipt Ex.P3 on the instructions of A1. Further Ex.D2 = Ex.P31 has also been proved that on 06.09.2000 also A1 and A2 were present in the Puliyampatti police station, when the first demand was made by the appellants. P.W.3 in his evidence corroborating the evidence of P.W.2 in respect of the second demand and acceptance of the bribe money on the date of 08.09.2000 and as such, the recovery from A1 alone has been proved and the phenolphthalein test conducted was also ended in positive. But, no explanation has been given by A1/1st appellant.
13.1.In respect of A1 is concerned, he was an Inspector of Police and his presence has been proved by the prosecution by way of examining P.Ws.2 and 3 and also the official witnesses P.Ws.8 and 9. In the present case, it is a peculiar circumstance that as soon as P.W.12 and others entered in to the police station and on seeing the vigilance people, he swallowed the currency notes, which was recovered and phenolphthalein test was conducted, which turned into positive, which was confirmed by the evidence of P.W.11 and Ex.P25. The activities of A1 shows that he received the bribe money and to escape from the clutches of law, he swallowed the same, which was recovered by the vigilance people and Phenolphthalein test has been conducted and the same was ended in positive. In such circumstances, I am of the view that the recovery from the first appellant has been proved by the prosecution beyond all reasonable doubt.
Preponderance of probabilities :
14.The learned counsel for the appellants would submit that the prosecution has to prove the guilt of the accused beyond all the reasonable doubt. But, the second appellant has proved his defence by preponderance of probabilities. To substantiate his argument, he relied on the following decisions:
(i) In C.M.Girish Babu V. C.B.I. Reported in 2009(3) SCC. The relevant portion in para 24 is extracted hereunder:
?Having examined the findings of both the courts, we are satisfied that the appellant has proved his case by the test of preponderance of probability and we accordingly reach the conclusion that the amount was not taken by the appellant as gratification.?
(ii)In A.V.Vijayarangan and others V. State reported in 2010(1) MLJ (Crl.) 541, the ratio dicidendi is extracted hereunder:
?It is not necessary on the part of the accused to prove their defence case beyond reasonable doubt. It is suffice for them to prove it by preponderance of probabilities or at least to lead evidence capable of raising a reasonable suspicion in the prosecution story.?
(iii)In J.Sunder @ Sundaram V. State reported in 2012(1) MLJ (Crl.) 9, the relevant portion in Para 82 is extracted hereunder:
?On appreciation of the evidences both oral and documentary and on hearing the submissions of both sides this Court is of considered view that the appellant has succeeded in proving the preponderance of probability in his case. On the footing of the decision in V.D.Jhingan V. State of Uttar Pradesh (supra), it is not necessary for the appellant to prove his case beyond all reasonable doubt. No doubt the onus proof lying upon the appellant is to prove his case by a preponderance of probability. Since he has succeeded in doing so, the burden is shifted to prosecution to establish beyond a reasonable doubt.
15.Considering the above decisions, in the said cases, the accused have given explanation and the same had been taken into consideration. But, here, the first appellants has not given any explanation. Whereas, on seeing the Trap Laying Officer, A1 attempted to swallow the currency notes and that has been forcibly recovered from his mouth and the phenolphthalein test has also been conducted, which turned into positive. The trial Court, after considering the evidence of P.Ws.2,3 and 5, have come to the correct conclusion that the presence of A1 in the Puliyampatti police station on 13.08.2000, 06.09.2000 and 08.09.2000 has been proved and the acceptance of the bribe has been proved and the recovery has been proved and phenolphthalein test was conducted, which turned into positive has also been proved by way of examining P.Ws.2, 3, 11 and 12 and come to the conclusion that A1 has received illegal gratification of Rs.1,000/- for taking action against the persons mentioned in Ex.P2 and found him guilty for the offence under Sections 7 and 13(1) read with 13(1) (d) of the Prevention of Corruption Act and Section 201 of I.P.C. and hence the conviction and sentence passed against the first appellant does not warrant any interference.
16.In respect of A2 is concerned, even though P.Ws.2 and 7 have stated about the second demand, nothing has been recovered from A2 and phenolphthalein test has not been conducted. Whereas, in the recovery mahazer, it was stated that one pair chappal, personal diary of A2 i.e. TIN 1361 79 and number batch viz., CNR 1361 and sovereign indicating three lines have been recovered from his room.
17.It is pertinent to note that there is enmity between the Superintendent of Police Mr.Jangid and A2. To prove the same, D.Ws.1 and 2, the Sheristadar and Head Clerk of the Court were examined and Exs.D3 and 4 were marked, which shows that taking vengeance against A2, a criminal case has been registered for the offence under Section 4(1)(A) of Tamil Nadu Prohbition Act, by way laid the van, which was purchased in the name of the wife of A2 and the wife of A2 and the brother of A2 have also been roped into the case and they were discharged by the concerned Court. Hence, they filed a suit for recovery of compensation as damages for mental agony and loss of reputation and damages and that has been filed before the Subordinate Court, Tuticorin in O.S.Nos.33 and 130 of 2000 and subsequently, the same were transferred to Sub Court, Kovilptti and renumbered as O.S.No.91 and 92 of 2000 and after that only, A2 was implicated in the case. Hence, the arguments advanced by the learned counsel for the second respondent that due to the previous enmity, the case has been foisted against A2 is acceptable.
18.As per the dictum of the apex Court that the prosecution alone has to prove the guilt of the accused beyond all reasonable doubt. Whereas, A2 has proved his defence by preponderance of probabilities that too in a case relating to Prevention of Corruption Act, the plausible explanation has to be accepted and if it is accepted, the burden has been shifted to the prosecution to prove the guilt. Here, as already stated that even though the demand has been proved, the acceptance and recovery has not been proved and no phenolphthalein test has been conducted. As per the recovery memo that amount has been recovered only from A1.
19.For the reasons stated above, I am of the view that the trial Court has not considered the plausible explanation given by A2, while fascinating conviction against him for the offences under sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 201 of I.P.C. As per the dictum of Apex Court, the defence has to be proved by the accused only by preponderance of probabilities. As already stated, A2 has proved his defence by way of examining D.Ws.1 and 2 and Exs.D3 and D4. Hence, I am of the view that the prosecution has not proved the guilt of the accused for the offences under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 201 of I.P.C. beyond all reasonable doubt and the benefit of doubt shall be given to the second appellant and the judgment of conviction and sentence passed against A2 is hereby set aside and he is liable to be acquitted from the charges levelled against him and the fine amount, if any, paid already, shall be refunded.
20.As already discussed in earlier paragraphs 10,12 and 14, the trial Court has correctly considered all the aspects in proper and perspective manner and come to the correct conclusion that A1 is guilty for the offence under Sections Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 201 of I.P.C. and the same is hereby confirmed.
21.In fine, The Criminal Appeal is partly allowed.
Judgment of conviction and sentence dated 25.01.2008 made in Spl.Case.No.2 of 2002 on the file of the Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi is hereby confirmed in respect of A1 is concerned. The learned Chief Judicial Magistrate cum Special Judge, Tuticorin is directed to secure the first appellant and send him jail to under the remaining period of sentence, if any.
Judgment of conviction and sentence dated 25.01.2008 made in Spl.Case.No.2 of 2002 on the file of the Assistant Sessions Judge cum Chief Judicial Magistrate, Thoothukudi is hereby set aside in respect of A2 is concerned. The second appellant is acquitted from the charges levelled against him. The fine amount already paid by the second appellant, if any, is ordered to be refunded.
The bail bonds, if any executed by the appellants, shall stand cancelled. Consequently, connected miscellaneous petition is closed.
19.12.2014 Index : Yes/No website: Yes/No Arul To
1.The Chief Judicial Magistrate cum Special Judge, Tuticorin.
2.The Deputy Superintendent of Police, Vigilance and Anti-Corruption Tuticorin.
3.The Public prosecutor, Madurai Bench of Madras High Court, Madurai.
R.MALA, J.
Arul Pre-Delivery Judgment made in Crl.A.(MD)No.79 of 2008 19.12.2014