Madras High Court
Kalyani vs State Represented By on 14 September, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.09.2018
RESERVED ON : 04.09.2018
DELIVERED ON : 14.09.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.630 of 2007
P.Krishnasamy (died)
S/o.Periyannan.
Kalyani,
W/o.Late P.Krishnasamy
[Appellant Kalyani is substituted
as per order of this Court dated
24.08.2018 made in
Crl.M.P(MD)No.6701 of 2018] : Appellant
Vs.
State represented by
The Inspector of Police,
Vigilance and Anti-corruption,
Tiruchy.
(Crime No.15/2002). : Respondent/
Complainant
PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure, against the Judgment and sentence dated 22.11.2007 passed in Spl.
Case No.6 of 2003 by the learned Chief Judicial Magistrate, Tiruchirappalli.
!For Appellant : Mr.S.Thirupathi
^For Respondent : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor.
:JUDGMENT
The conviction and sentence dated 22.11.2007 passed in Special Case No.6 of 2003 by the learned Chief Judicial Magistrate, Tiruchirappalli are being challenged in the present Criminal Appeal.
2.The Appellant herein, is one among the four accused tried for offence under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. Pending trial one of the accused Andi (A.3) died and hence charges against him got abated. The trial court acquitted two accused namely Samikannu (A.2) and Ayyavoo (A.4) and held the revision petitioner Krishnasamy (A.1) guilty. Aggrieved by the judgment of conviction and sentence, appeal filed. The appellant died pending appeal. On petition, his wife Kalyani has got impleaded herself and substituted as appellant.
3.Facts leading to the appeal:
(i)On 12.08.2002, a complaint was received from one Jawahar of Ayyappan Nagar, Tiruchy alleging that (1)Samikannu, S.I of Police, (2) Andy, Special Sub- Inspector of Police, (3) Ayyavoo, Head Constable and (4)Krishnasamy, Head Constable, all attached to Thottiam Police Station, Triuchy District demanded Rs.2,000/- as bribe to deliver letter of requisition to the Motor Vehicle Inspector and release the Tempo Traveller van (TN-49-B-0693) driver Jagadeesan on bail, in connection with the road accident happened on 11.08.2002 near Venkateswara Theatre, Thottiam.
(ii)Based on the above complaint, Thiru.Ambigapathi, Inspector of Police, Vigilance and Anti Corruption Department, Tiruchy registered First Information Report in Crime No.15 of 2002 at about 09.15 a.m. and organized trap to apprehend the accused persons while receiving bribe. Hence, arranged for two persons Rajkumar and Ramanathan to witness the trap proceedings. In their presence, pre-trap proceeding, such as, sodium carbonate- phenolphthalien demonstration, smearing of phenolphthalein on the currency (20 x 100) and its entrustment to the decoy witness after noting down the currency numbers were done and the same was reduced into writing.
(iii)The de facto complainant Jawahar along with shadow witness Ramanathan went to Thottiam Police Station at about 03.00 p.m. The trap team lead by Ambigapathi followed them and took position waiting for pre- arranged signal.
(iv)Krishnasamy, Head Constable, standing in the front of the police station, called Jawahar and Ramanathan inside the station. Enquired Jawahar had he brought the money? How much?. Jawahar replied he has brought Rs.2000/- and tendered the tainted money. Krishnasamy received it in his right hand, counted with both hands and kept inside his right side pocket of his uniform shirt. Assured Jawahar that after Samkannu, Sub Inspector of Police, return to the station he will get the letter of requisition and give.
(v)Jawahar and Ramanathan came out of the police station. Jawahar gave the pre-arranged signal to the trap team. Ambigapathy, Inspector of Police and his team entered Thottiam Police Station. Krishnasamy was identified by Jawahar and Ramanathan, as the person who received the tainted money. After formal introduction, the hands of Krishnasamy was subjected to sodium carbonate test. The solution turned pink indicating presence of phenolphthalein. Samples from the right hand and left hand test solution were collected separately in two bottles and sealed. On enquiry, Krishnasamy admitted acceptance of illegal gratification and handed over Rs.2000/- kept in his shirt pocket. The pocket portion of the shirt was subjected to sodium carbonate test. The solution answered positive by turning pink. The sample solution of pocket portion of the shirt and the currency Rs.2000/- seized. The serial numbers found in the seized currency tallied with the numbers noted in the entrustment mahazaar. Krishnasamy was arrested for receiving illegal gratification of Rs.2000/-from Jawahar. The residence of Krishnasamy was searched, nothing incriminating was recovered.
(vi)On completion of investigation, sanction to prosecute the accused was obtained and final report was filed.
(vii)The Trial Court framed charge under Section 7 of P.C. Act against A.1 to A.4 for demand of Rs.2,000/- as illegal gratification other than legal remuneration on 11.08.2202 from Jawahar as motive to forward requisition letter to Motor Vehicle Inspector and on 12.08.2002, 03.30 p.m. at Thottiam Police Station, A.1 obtained the illegal gratification of Rs.2,000/- for himself and other accused and under section 13(2) read with 13(1)(d) of P.C. Act, for misconduct of abusing their official position to attain illegally and dishonestly a pecuniary advantage of Rs.2.000/- from C.Jawahar.
(viii)The prosecution to prove the above charges, examined 13 witnesses and marked 16 exhibits and 5 material objects. No witness or document is marked in defence.
(ix)Though, the de facto complainant Jawahar (P.W.3) turned hostile, the trial Court relying upon the other prosecution witnesses who have deposed about the demand, acceptance and recovery and based on the documentary evidence such as, entrustment mahazar (Ex.P.7), recovery mahazar (Ex.P.10) and the chemical analyst report (Ex.P.11) has held that Krishinasamy (A.1) who received the tainted money (M.O.3 series) from Jawahar and the same being recovered from his possession, held him guilty by drawing the statutory presumption under Section 20 of P.C. Act. Recording that the evidence for the prosecution did not prove the fact that the bribe received by A.1 was not for him alone, but also for the other accused, by extending the benefit of doubt, other accused were acquitted.
4.The contentions raised in the appeal:
(i)Ex.P.2, the order according sanction to prosecute the appellant is void. P.W.2 did not apply his mind before according sanction. The other sanction order issued by P.W.1 in respect of other accused also similar in words, pattern, language, tenor, etc. which probabilise the case of the defence that the sanction order has been signed on the dotted lines based on the draft sanction order forwarded by the Office of the Department of Vigilance and Anti Corruption.
(ii)The Trial Court ought to have acquitted the appellant along with other accused since the de facto complainant (P.W.3) did not support the prosecution case regarding demand of illegal gratification by this appellant.
Further, P.W.3 has admitted that he voluntarily thrusted the money in the pocket of the appellant, on a presumption he expect money from him. Without appreciating this aspect in proper perspective, the Trial Court has erroneously convicted the appellant.
(iii)The Trial Court failed to consider the Judgments of the Hon'ble Supreme Court, which has clearly held that mere positive of phenolphthalein is not sufficient to presume the guilt of the accused.
(iv)Uncorroborated testimony of official witnesses who have deposed in an artificial manner just to support the prosecution has formed basis of conviction which requires interference.
(v)For single offence, the accused has been charged under Section 7 as well as 13(1)(d) punishable under Section 13(2) of P.C. Act.
(vi)The Trial Court has rightly disbelieved the joint demand of bribe on 11.08.2002 by all the accused. While so, the demand on the next day by the appellant is highly improbable, more so, in the light of the deposition of P.W.3 the de facto complainant, who had positively deposed that the appellant never demanded money, he never obtained any money from him. He voluntarily put the money in his pocket. The accused took it out and threw away on the floor.
5.In support of his submissions, the learned counsel for the appellant would rely upon the following judgments:
(i)Suraj Mal v. State (Delhi Administration) reported in (1979)4 SCC
725.
(ii)M.R.Purushotham v. State of Karnataka reported in (2015)2 Supreme Court Cases (Cri) 249.
(iii)Ramachandran and Another v. Rajendran and Others reported in (2018)2 MLJ (Crl) 71.
6.Per contra, the learned Additional Public Prosecutor appearing for the State has raised the following points:
(i)P.W.11 is the owner of Tempo van bearing Registration No.TN-49-B-
0692. The van was entrusted to P.W.3 for the purpose of running and generating income. P.W.3 rented the vehicle for trip to Yercaud from Trichy on 11.08.2002. The vehicle was driven by one Jegadeesan. The said vehicle met with an accident near Venkateshwara Theatre, Thottiam at about 05.15 a.m. Case was registered under Crime No.198 of 2002 against Jegadeesan at Thottiam Police Station, in which the accused persons serving as Sub Inspector of Police, Special Sub Inspector of Police and Head Constable.
(ii)On being informed about the accident, P.W.3, Jawahar went to the police station and requested for copy of First Information Report, letter to Motor Vehicle Inspector and also to release the van driver Jegadeesan on bail. For discharging the said duty, the accused 1 to 4 demanded Rs.3,000/- and later reduced to Rs.2,000/-.
(iii)Not willing to pay the bribe, P.W.3 had given the complaint, marked as Ex.P.3. As per complaint, Ex.P.3, Jawahar (P.W.3) went to the Station, first met Andi (A.3) and sought for Motor Vehicle Inspector letter. He directed Jawahar to meet Samikkannu (A.2), Sub Inspector of Police. A.2 demanded Rs.3,000/- as bribe to furnish the requisition letter or else he will remand the driver. When P.W.3 expresses his inability to pay Rs.3,000/- , Samikkannu (A.2) called Ayyavu (A.4), both Head Constables of that Station to negotiate with the de facto complainant (P.W.3). They both negotiated and reduced the bribe amount to Rs.2,000/-. Pursuant to this, the de facto complainant has come to the office of Vigilance and Anti Corruption, Tiruchy and given his written complaint on 12.08.2002 at about 09.15 hours.
(iv)No doubt, P.W.3 (de facto complainant) has turned hostile. He has gone further to say that the complaint was written at the dictate of one Kamal Basha, Head Constable. His evidence on the whole would clearly show that he gave the complaint and based on his complaint, the accused persons were caught and prosecuted. He had turned sympathetical towards them knowingly to contradict his own complaint. However, on a complete reading of his evidence, the factum of lodging complaint (Ex.P.3), entrustment mahazar, subsequent visit to the police station and giving money to the appellant herein, are candidly admitted by this witness.
(v)Under Section 154 of the Indian Evidence Act, the entire evidence of the witness who turned hostile, need not be eschewed in toto. The reliable portion of his evidence which is corroborated by the other witnesses can be considered by the Court. The Trial Court has precisely done the same and after considering the evidence of the shadow witness, P.W.4, Selvaraj, who has seen the de facto complainant at the police station, affirming the contents of his complaint and meeting of Krishnasamy, the appellant at the police station are all well proved and accepted by the Trial Court. Therefore, the hostility of P.W.3 only strengthens the case of the prosecution that he has deliberately turned hostile being won over by the accused persons.
(vi)Regarding the sanction for prosecuting the appellant/accused, the learned Additional Public Prosecutor would submit that P.W.2, Mr.Sathiyamoorthy, as Deputy Superintendent of Police, being an officer authorised to remove police persons rank of head constable, has accorded sanction only after perusing the records and application of mind. The same is reflected both in his sanction order marked as Ex.P.2 and also in his deposition. Similarity in the other sanction order issued by P.W.1 cannot be a reason to interfere that there was no application of mind or perusal of record.
(vii)Regarding the contention that for a single offence, the appellant/accused No.1 cannot be charged for offences under Sections 7 and 13(1)(d) of P.C. Act, the learned Additional Public Prosecutor would submit that these two offences are distinct and constituted two different crime. While Section 7 of P.C. Act provides punishment for obtaining or attempt to obtain any gratification other than legal remuneration as motive or reward for doing or forbearing to do any official Act, Section 13 deals with the misconduct of a public servant, who obtain any valuable or pecuniary advantage either by corrupt or illegal means or by abusing his position or without any public interest. In this case, the accused have obtained illegal gratification other than legal remuneration from P.W.3 as a motive to arrange requisition letter to Motor Vehicle Inspector and to release driver Jegadeesan on bail. Further, he has also as a public servant misconducted himself by abusing his position to obtain pecuniary advantage. Since both the offences being different and distinct, there is no legal infirmity in convicting the appellant/accused No.1 for two different offences.
7.In support of his submissions, the learned Additional Public Prosecutor would rely upon the following Judgments:
(i)Nayankumar Shivappa Waghmare v. State of Maharashtra reported in 2015(11)SCC 213.
(ii)S.C.Goel v. State through Central Bureau of Investigation reported in 2016(13)SCC 258.
8.As far as P.C. Act is concerned, the person, who gives bribe is also liable for prosecution if he abets the said crime. However, due to Section 24 of P.C. Act, he is immuned from prosecution. Section 24 of P.C. Act reads as follows:
?24.Statement by bribe giver not to subject him to prosecution.- Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12?.
9.The probative value of the bribe giver has to be decided with the same standard of other witnesses. He has no any better sanctity or lesser sanctity than the other witnesses. In this case, the bribe giver who has set the criminal law into motion by giving the complaint (Ex.P.3) has turned topsy-turvy, while deposing before the Court. In his deposition, he admits his visit to Thottiam Police Station on 11.08.2002 along with his friend Selvaraj (P.W.4) in connection with the motor vehicle accident involving tempo lorry left to his custody. He admits that he met Samikkannu (A.3) and the presence of the other accused. In the police station, he was advised by A.2 and A.4 not to create problem in the police station. Thereafter, he has gone to the Vigilance and Anti Corruption Department office to give the complaint. He admits that the tainted currency recovered from the appellant/accused was given by him.
10.In the cross-examination, he has gone further and said that he thrusted the tainted currency into the pocket of the accused on his own under the impression that the appellant/accused expects bribe. This explanation for possession of tainted money through the mouth of P.W.3 is an enough indication that the witness had been won over by the accused persons. A civilian visiting the police station thrusting something into the pocket of a policeman in uniform voluntarily against the wish of the said person, is purely a pigment of imagination.
11.In fact, the hostility of P.W.3 pales to insignificance in view of the evidence given by his friend (P.W.4). According to this witness, he accompanied Jawahar (P.W.3). He has spoken about the demand of illegal gratification by the Sub Inspector of Police, Samikkannu, negotiation of Krishnasamy and Ayyavu regarding the amount and finalisation of the amount Rs.2,000/- as bribe by Krishnasamy, the appellant herein. This witness also speaks about the complaint given to Vigilance and Anti Corruption Department by P.W.3. Though the Trial Court has acquitted the other accused, since they were not present at the time of giving bribe, the evidence as given by P.W.4 clearly proves the demand of illegal gratification by the accused persons on 11.08.2002 and the participation of Krishnasamy in the negotiation is well spoken and established through this witness.
12.The following aspects are proved from the hostile evidence of P.W.3:
(i)The currency used for the trap was given by this witness.
(ii)The visit to the police station on 11.08.2002 and thereafter visit to Department Vigilance and Anti Corruption office, is accepted by him.
(iii)He also deposed that after lodging the complaint, he went to Thottiam Police Station carrying the tainted currency with him.
(iv)He also deposed that he placed the tainted currency into the pocket of the appellant/accused No.2, voluntarily.
13.Having given complaint alleging demand of illegal gratification, the de facto complainant had turned hostile, especially, to breach the case of the prosecution, regarding his complaint as well as acceptance of bribe by the accused. In fact, this hostility clearly indicates that he had been won over by the accused persons. Whereas the evidence of P.W.4, who accompanied the de facto complainant on 11.08.2002 and witness to the demand of illegal gratification by P.W.5 and P.W.6 stands unimpeachable.
14.In M.R.Purushotham case, the de facto complainant did not support the prosecution case in so far as demand by the accused and no further evidence was adduced by the prosecution to prove the demand. Whereas in the case under consideration, though P.W.3, the de facto complainant has not supported the case of the prosecution about demand, the evidence of P.W.4 (Selvaraj) is amply supported. Further on the next day, the date of trap, the demand and acceptance is proved through P.W.5.
15.As far as the demand and acceptance of the bribe by the appellant on 12.08.2002, the evidence of Rajkumar (P.W.5), the shadow witness, suffice to inspire the confidence of the Court that on the said date the accused has demanded money from P.W.3. On seeing P.W.3, the accused took him to his room and had demanded whether he has brought the money and how much he has brought. P.W.3 has answered in affirmative, told he has brought Rs.2,000/- and had tendered that to the accused. The appellant/accused No.1 had received it in his right hand and after counting it, had kept it in the shirt pocket. The presence of phenolphthalein found in his hand and shirt pocket, lent credence to the version of P.W.5. The recovery of the tainted money from the possession of the appellant/A.2 is proved through Rajkumar (P.W.5) and Ramanathan (P.W.6). Both are neutral witnesses and called to assist the prosecution during the trap proceedings. There is no animosity or ill-will attributed to these witnesses to say falsehood against the accused persons. Therefore, this Court holds that the finding of the Trial Court regarding demand, acceptance and recovery is in consonance with the evidence let in by the prosecution, hence needs no interference despite hostility of the de facto complainant.
16.The doubt created by the learned counsel appearing for the appellant/A.1 regarding the sanction order that the similarity in the wording, tenor and language found in both the sanction orders issued by two different officers indicates that they both have emanated from a common source, namely, office of the Department of Vigilance and Anti Corruption. This Court is unable to appreciate this argument, because when two different persons narrate the same fact, there is every possibility of similarity in language and pattern. This cannot be a reason to interfere that the said person has not applied his mind, while according sanction.
17.It is contended by the learned counsel appearing for the appellant/A.2 that when the other accused are found not guilty, the same benefit ought to have been extended to this accused also. For the said purpose, the learned counsel has also relied upon the Judgment of the Hon'ble Supreme Court in Ramachandran and Another v. Rajendran and Others reported in (2018)2 MLJ (Crl) 71.
18.There is a vast difference between the facts of the case cited and the present case in hand. In this case, the accused is one of the persons named in the complaint. P.W.4 in his deposition has specifically given evidence incriminating this accused for negotiating the bribe amount on 11.08.2002. P.W.5 had deposed in a very clear unambiguous term that on 12.08.2002 the accused demanded how much money, P.W.3 has brought and thereafter received Rs.2,000/- from P.W.3 and kept it in his pocket after counting the same and assured P.W.3 that as soon as Sub Inspector arrives to the police station, he will prepare the requisition letter. This evidence is singularly enough to hold that the accused has received illegal gratification. Such evidence is not found in the facts of the case, which has been cited above. Therefore, the said Judgment is not applicable to this case.
19.Though the Trial Court has held other accused not guilty, the said benefit cannot be extended to this accused, because he is the person, who has received the money and had assured the bribe giver that his request to release the driver and to issue requisition letter to the Motor Vehicle Inspector, will be soon attended. Thus, all the ingredients to attract the offence under Sections 7 and 13(1)(d) of P.C. Act are clearly established by the prosecution.
20.The last contention raised by the learned counsel appearing for the appellant is that for a single offence, the appellant/A.1 cannot be punished for both the offences under Sections 7 and 13(1)(d) of P.C. Act. The reading of Sections 7 and 13(1)(d) will clearly indicate the difference between these two provisions. Section 7 is in respect of a public servant taking gratification other than legal remuneration in respect of an official act. It involves showing or forbearing to show any favour or disfavour, service or disservice to any person. In this connection, receiving gratification other than legal remuneration as motive or reward attracts punishment under Section
7. Whereas a public servant, who by corrupt or illegal means obtained for himself for other other persons any valuable or pecuniary advantage, it amounts to criminal misconduct. It may be by abusing his official position as a public servant for obtaining such valuable thing or pecuniary advantage.
21.As far as this case is concerned, the demand and acceptance of Rs.2,000/- by the accused is to do a service, namely, issuance of requisition letter to Motor Vehicle Inspector. For the said purpose, as a motive, the appellant/A.2 has obtained the illegal gratification. While demanding money, on 11.08.2002, he has also cautioned P.W.3 that if bribe money is not given, his vehicle will stand on the road, meaning that the vehicle will be damaged or lost, if bribe is not given. Thus, corrupt means to get a pecuniary advantage and also abuse of his position is made out, which is a distinct offence. Being a criminal misconduct, demand and receipt of illegal gratification of Rs.2,000/- by the appellant/ A.1 cannot be considered as a single offence, but has to be considered as two distinct offence falling under two different categories.
22.Similar argument when was placed in State represented by Inspector of Police, Pudukottai, T.N. v. A.Parthiban reported in 2006(11) SCC 473, the Hon'ble Supreme Court has in detail compared these two provisions in the light of Section 71 IPC and Section 220 Cr.P.C. and has held as below:
"Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different Sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year".
Therefore, this Court finds no merit in the appeal and accordingly, the same is liable to be dismissed.
23.In the result, this Criminal Appeal is dismissed and the Judgment and sentence dated 22.11.2007 passed in Spl. Case No.6 of 2003 by the learned Chief Judicial Magistrate, Tiruchirappalli are confirmed. Since the appellant/A.1 is died pending appeal and appeal is pursued by his wife, direction regarding securing the appellant/A.1 to undergo the period of sentence does not arise.
To
1.The Chief Judicial Magistrate, Tiruchirappalli.
2.The Inspector of Police, Vigilance and Anti-corruption, Tiruchy.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.