Madras High Court
K.M.Raju vs State By Deputy Superintendent Of on 30 January, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date of Reserving Judgment 04.12.2017 Date of Pronouncing Judgment 20.12.2017 CORAM : THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal Nos.: 80 & 84 of 2014 and 447 of 2016 and Criminal M.P.No.3030 of 2016 K.M.Raju ...Appellant in Crl.A.No.80 of 2014 K.Arun Prasath ...Appellant in Crl.A.No.84 of 2014 State represented by The Public Prosecutor, High Court, Madras 600 104. (V & A.C., Erode Crime No.20/AC/2003/ER) ...Appellant in Crl.A.No.447 of 2016 versus State by Deputy Superintendent of Police, Vigilance and Anti Corruption, Erode, (Crime No.20/AC/2003/ER) ...Respondent in Crl.A.Nos.80 & 84 of 2014 1.R.K.Arunprasath 2.K.M.Raju ...Respondents in Crl.A.No.447 of 2016 PRAYER in Crl.A.No.80 of 2014: Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, against the Judgment and the Learned Special Judge/Special Court for cases under Prevention of Corruption Act, Coimbatore in Special C.C.No.81 of 2011 dated 30.01.2014. PRAYER in Crl.A.No.84 of 2014: Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, to set aside the Judgment and sentence and conviction imposed upon the appellant herein by the Learned Special Judge for Prevention of Corruption Cases, Coimbatore, in Spl.C.C.No.81 of 2011 dated 30.01.2014 and acquit the appellant herein. PRAYER in Crl.A.No.447 of 2016: Criminal Appeal is filed under Section 378 of Criminal Procedure Code, to allow this appeal and set aside the Judgment of acquittal of the respondents/accused A1 and A2 passed by the Court of the Special Judge, Special Court for Cases under Prevention of Corruption Act, Coimbatore in Spl.C.C.No.81 of 2011, dated 30.01.2014, convict the Respondents/Accused A1 and A2. For Appellant : Mr.A.K.Kumaraswamy Sr.C., for Mr.S.Kaithamalaikumaran in Crl.A.80/2014 and respondent in Crl.A.447/2016, Mr.R.Karthikeyan in Crl.A.84/2014 For Respondent : Mr.P.Govindarajan in all appeals Additional Public Prosecutor (Criminal Side) in Crl.A.80, 84/2014 and Appellant in Crl.A.447/2016 C O M M O N J U D G M E N T
These three criminal appeals arises from the judgment of the trial court in Spl C.C 81 /2011 dated 30.01.2014. Second accused K.M.Raju a private person had filed appeal against the conviction under section 109 IPC r/w Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, the first accused a public servant had filed appeal against the conviction under section 13(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988. Whereas the State has preferred appeal against the acquittal of A-1 from the charges under section 7 of the Prevention of Corruption Act and acquittal of A-2 from the charge under section 12 r/w 7 of the Prevention of corruption Act.
2. The case of the prosecution in nutshell:
2.1) Thiru. Duraisamy an agriculturist of Panaimarathootham Village in Erode District applied for agricultural electricity service connection on 05.03.2007 to draw water from his bore well. Later he dig a open well and made a fresh application on 13.09.2001 under self finance scheme. He received a notice dated 17.11.2013 from the Tamil Nadu Electicity Board, North Kundam, Erode District to produce certain documents relating to his application. He met Mr. Arun Prasad, the Junior Engineer at TNEB office North Kundadam on 27.11.2013 along with the documents mentioned in the notice. Arun Prasad after verifying the documents informed Duraisamy that his earlier application is for bore well and now he wants service connection to open well, so for the said change the paper has to go to Executive Engineer office for which he has to pay Rs.2,600/- as bribe in addition to the Rs.6000/- for preparing the estimation. Since Duraisamy was not inclined to pay bribe to Arun Prasad, he borrowed money from his relative Chenniappan and gave complaint to the Vigilence and Anti-corruption police at Erode on 28.11.2013. Thereupon, the complaint was taken on for investigation. Next day, after demonstrating the trap proceedings to the witnesses, at about 11.05 A.M, the defacto complainant Duraisamy along with the accompanying witness Mariappan and the trap team reached the office of TNEB, Kundadam. Arun Prasad was not in his seat. So they waited till his arrival. At about 12.45 P.M, Arun Prasad came to the office. Duraisamy and Mariappan went to the room of Arun Prasad and wished him. Arun Prasad enquired Duraisamy whether he has brought the money he asked, Duraisamy took out the money smeared with phenolphphalein and gave it to Arun Prasad. On receipt of the money, Arun Prasad gave it the person next to him ( K. M. Raju A- 2) and told him to keep the money, he will get it back afterwards. On receipt of the pre arranged signal from Duraisamy, the trap team entered the room of Arun Prasad, introgated him and recovered the tainted money from Raju, after conducting the sodium corbonate phenolphphalien test on the hands of Arun Prasad A-1 and Raju A-2 and confirming they both have handled the tainted money.
3. The trial court on receipt of the final report, framed the following charges against the accused persons.
3.1) Charge 1: Against A-1 under section 7 of PC Act. for demand and acceptance of illlegal gratification of Rs.4,000/- from Duraisamy on 29.11.2013 3.2) Charge 2: Against A-2 under section 11 r/w 7 of PC Act for abetting A-1 to commit offence under section 7 of PC Act.
3.3) Charge 3: Against A-1 under section 13 (2) r/w 13 (10(d) of the PC Act for abusing his position as Public servant, misconducted himself by obtaining pecuniary advantage of Rs.4,000/-
3.4) Charge 4: Against A-2 under section 109 IPC r/w section 13(2) r/w 13(1)(d) of PC Act.
4. The prosecution to prove the above charges had examined 15 witnesses, 31 exhibits and 8 material objects. On the side of the defence one witness and 3 exhibits were marked.
5. The trial court found the accused guilty of charges 3 and 4. Convicted the the first accused being a public servant for offence under section 13(1)(d) of the PC Act and sentenced him under section 13(2) of the Act to under go one year RI and fine of Rs.3,000/- in default to undergo 3 months SI. The second Accused was convicted for offence under section 109 IPC r/w section 13(2) r/w 13(1)(d) of PC Act and sentenced him to undergo one year RI and fine of Rs 3,000/- in default to undergo 3 months SI. The period of sentence already undergone to be set off and the period of imprisonment shall run concurrently. However, acquitted them for charges 1 and 2.
6. Aggrieved by the said judgment, the State has preferred appeal against the order of acquittal and the accused have preferred appeals against the judgment of sentence and conviction.
7. Point for consideration:
7.1) Whether the trial court correct in holding the accused guilty of offence of misconduct and abettement to commit misconduct and acquitting them from the charges for demand and acceptance of bribe and abetment to commit that offence ?
8. It is an admitted fact that the defacto complainant PW-2 gave an application dated 4.3.1997, for service connection for 5 HP motor to draw water from borewell situated in his land bearing new survey no. 185/2 old survey no. 381/ B. The said application Ex P-17 had been received at TNEB Office on 05/03/1997 and registered as application No. 933 dated 05/03/1997. Thereafter when self finance scheme for out of turn service connection was introduced, PW-2 had paid Rs.500/- on 13.09.2001 and sought for considering his application under self finance scheme. Ex P-2 is the reciept dated 13.09.2001 issued by TNEB for Rs.500/- paid by Duraisamy. This amount is recieved by the Board in connection with the application registration No. 933 dated 05.03.1997. When, the Board decided to consider the applications under Self-finance scheme, PW-2 was informed through Ex P-3 notice dated 17/11/2003 to submitted documents such as VAO certificate to show ownership, Field Map and sketch, kist receipts, chitta, Adangal and patta or title deed. Ex P-4 acknowledgment indicates that PW-2 had received the said notice on 21.11.2003.
9. While fact being so, the defacto complainant had deposed that in response to the notice Ex P-3 he went to the EB office on 27.11.2003 and met Arun Prasad J.E and gave the documents. He initialled on it and told him to give the papers to C.I ( Commericial Inspector ) who compared the earlier application of PW-2 and the present application and gave both the applications to J.E. On seeing the earlier application, JE told him that the earlier application is for service connection to borewell whereas the present application is for open well, therefore permission from EE office is required. For which he has to spend Rs.2,600/- and for estimation he has to give Rs.6,000/- totally he has to spend Rs.8,600/-. thus the contest and circumstances under which the first demand of illegal gratification on 27.01.2003 is spoken by PW-2.
10. The perusal of Ex P-9 application dated 17.11.2003 indicates it is a new application given by PW-2 for electrical service connection to install 5 HP motor in his land bearing S.No 185/2A5 ( old survey No. 381/B ) without any reference about his earlier application. The VAO has certified in Ex P-9 on 11.11.2003. In this application the first accused has endorsement to Revenue section to collect Rs 50/- and affixed his initial with date as 27/11/2003, but scored off. This endorsement of A-1 is admitted by PW-2 during the course of his cross examination and same is marked as Ex D-1. On the right side top of Ex P-9 application there is a noting 25,000/- well change. This noting is marked as Ex D-2.
11. The allegation against the first appellant regarding the demand of bribe has to be looked from the application of the defacto complainant, which is marked as Ex P-9, because the bone of contention centers around the change of request to get Electrical Service Connection for the open well instead of borewell. Since, 1997 when the defacto complainant has paid Rs.50/- and registered for service connection vide Ex P-11 and Ex P-17 the requet is for borewell. The subsequent payment of Rs.500/- to consider the application under self finance scheme is also with reference to his application marked as Ex P-11. The notice issued by the first accused dated 17.11.2003 for production of document also in respect of the application dated 05.03.1997. While so, Ex P-9 with VAO Certificate dated 11.11.2003 and signed by the defacto complainant on 17.11.2003 had been presented before the first accused on 27.11.2003. As pointed out earlier and admitted by the defacto complainant, he had not stated anything about his earlier application dated 04.03.2007 in Ex P-9. The defacto complainant also admits that he has not mentioned about his application marked as Ex P-9 dated 17.11.2003 in his complaint dated 28.11.2003.
12. While, the witness has depose that he gave his application Ex P-9 for fresh service connection to open well on 27.11.2003 at about 02.00 P.M, but in his complaint dated 28.11.2003, he has conveniently suppressed the said fact and had alleged that as if for change in the nature of well from borewell to open well, the Junior Engineer (A1) had demanded bribe. So far as the recovery of Ex P-9 is concerned the Trap Laying Officer, C.Raja PW-14, in his cross examination admits that he recovered Ex P-9 along with the other connected documents on 29.11.2003, but he has not made sufficient investigation in respect of why the defacto complainant has given a new application Ex P-9 on 27.11.2003 without mentioning his earlier application and the notice Ex P-3 dated 17.11.2003 sent to him for production of document pursuant to his earlier application. In this respect, the suggestion put to PW-14, that in connivance with Shahjagan PW-9, A2 had tried to replace the earlier application dated 05.03.1997 with the application dated 17.11.2003, but the endorsement of A1 had prevented them to do so, hence aggrieved by that, the false complainant has given by PW-2, gains significance.
13. Further, PW-1 who accorded sanction to prosecute A1 admits that in the application dated 17.11.2003 marked as Ex P-9, there is no reference about the earlier application dated 05.03.1997. The case of the prosecution is that the defacto complainant first gave an application under ordinary quota on 05.03.1997, which is marked as Ex P-17. It is the case of the prosecution that the defacto complainant wanted to get service connection under self finance scheme and made an application on 13.09.2001 and paid Rs.500/-, though the prosecution has marked the receipt for Rs.500/-, application dated 13.09.2001 is not before the Court.
14. On a cumulative assessment of these documents, it could be seen that the defacto complainant having applied for service connection to his borewell in the year 1997 had attempted to get service connection for the open well by substituting his earlier application with a new application dated 17.11.2003 to retain the seniority. Since, this could not be fractified due to the objection raised by the Junior Engineer (A1) complaint had been made with acquisition of demanding bribe.
15. The case of the prosecution that A1 demanded a total sum of Rs.8600/- on 27.11.2003, thereafter, reduce to Rs.7000/- and as first installment, he demanded Rs.4000/- and to pay the balance after 15 days. Accordingly six 500 rupees currency and ten 100 rupees currency as made with phenolphthalein powder and entrusted to PW-2. PW-2 in his deposition has stated that he went to Junior Engineer Office at 11.00 A.M, Junior Engineer was not in his seat, hence, waited for him till 12.45 P.M. When, Junior Engineer came in his seat, he along with Mariappan PW-2 went to the room of A1 after exchanging wishes Junior Engineer asked him whether he has brought the money, immediately PW-2 said yes and gave the tainted money to A1, which A1 receive with his right hand and gave it to A2 Raju to count and keep it with him. Raju counted the money and kept it with him. PW-3 corrobarates the said version. Thus the evidence of PW-2 and PW-3, is that A2 received the tainted money in his right hand and immediately he has given it to A2. A2 counted the money with both his hands and kept it in his pocket. However, the phenolphthalein test undertaken reveal presence of phenolphthalein in both the hands of the first accused. When, there is no evidence to show that the accused handled the tainted money in his left hand, the presence of phenolphthalein in both the hands not been explained by the prosecution. Strangely the trial Court has endeavoured to say that A1 would have taken back the money from A2 and return it to A2 again in between the receipt of the money and arrival of the trap team. Such events by imagination cannot be substituted by the Court. When, there is no positive evidence before it, for such inference. The doubt in the prosecution case gets enhanced in the light of the fact that the defence has projected an alternate theory by way of suggestion to the witnesses that when PW-2 attempted to give money to A1, A1 pushed it away with his right hand. The currency fell on the floor, A2 who was in the room of A1 at that time picked it, at that juncture the trap team enter and asked him to keep the money in his pocket and thereafter recovered.
16. While discussing the presence of A2 in the room of A1, the trial Court has observed that A2 is a license electrical contractor. From EX.P15 and EX.P16 petti cash book, it is evident that A2 has received labour charge from A1 for doing electrical work, the said inference is purely on surmises. EX.P15 and P16 petti cash book of A1 cannot be a document to infer anything against A2 as held by the trial Court. It will only provide reason for his presence in the room of A1 and nothing more.
17. Neither it is the case of the prosecution that A1 had previous knowledge of demand of any illegal gratification by A1 nor A2, intentionally aided A1 to receive the bribe money to attract Section 109 IPC the abator ought to have instigated to do a thing or engaged with one or more person in any conspiracy or intentionally aid to do an act or illegal omission.
18. In this case, the evidence does not reveal any of the above ingredient to charge A2 under Section 109 of IPC. Mere presence during the trap operation and recovery of tainted money from a private person without strong evidence to prove that he was holding the money with knowledge that it is bribe money, the presumption under Section 20 cannot be drawn. Further more the explanation by way of suggestion in the cross examination putforth to the witnesses by A1 and A2 also to be taken note. The omission of the vital fact with complaint that he gave a fresh application on 27.11.2003, makes the trust worthiness of the defacto complainant doubtfully. The endorsement of EX.D1 and D2 found on the application, EX.P9 enhance the doubt that the complaint does not carry the true facts, but bristles with supression of truth and suggestion of falsehood. Therefore, when the fundamental fact of demand and acceptance has not been proved by the prosecution through reliable witnesses, holding A1 for offence under 13(1)(d) of P.C Act and holding A2 for offence under 109 IPC r/w.13(1)(d) does not arise. Equally, on failure of proving the factum of demand Section 7 of the PC Act also does not get attracted.
19. In the result, the appeal filed by the accused persons is allowed and the appeal filed by the State is dismissed. Accordingly, the Judgment of the trial Court passed in C.C.No.81 of 2011 is set aside. The accused in C.C.No.81 of 2011 are acquitted of all charges extending the benefit of doubt. The fine amount if any paid shall be refunded. No order as to costs.
20.12.2017 speaking/non speaking Index:Yes/No Internet:Yes/No rna To
1.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Erode.
2.The Learned Special Judge for Prevention of Corruption Cases, Coimbatore.
3.The Additional Public Prosecutor, High Court, Madras.
DR.G.JAYACHANDRAN.J, rna Pre-delivery Judgment made in Criminal Appeal Nos.: 80 & 84 of 2014 and Criminal M.P.No.3030 of 2016 and 447 of 2016 20.12.2017