Madras High Court
S.Kumar vs State on 13 July, 2011
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Criminal Appeal No.128 of 2005 S.Kumar .... Appellant Vs. State, rep.by Inspector of Police SPE/CBI/ACB/ Chennai-6 .... Respondent Prayer : Appeal filed under Section 374 of the Code of Criminal Procedure, against the Judgment dated 30.12.2004 and made in C.C.No.73 of 2001, on the file of the learned Additional Special Judge, for CBI Cases, Chennai. For Appellant : Mr.V.Udayakumar For Respondent : Mr.N.Chandrasekaran Spl.P.P. for CBI J U D G M E N T
Challenge is made in this appeal to the Judgment dated 30.12.2004, and made in C.C.No.73 of 2001, on the file of the learned Additional Special Judge, for CBI Cases, Chennai convicting the appellant under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to suffer one year of rigorous imprisonment for each count and to pay a fine of Rs.2,500/- for each count in default to suffer two months of rigorous imprisonment for each count.
2. There are two accused in C.C.No.73 of 2001, on the file of the learned Additional Special Judge, for CBI Cases, Chennai. The appellant herein is the first accused, whereas one T.N.Venkatraman is the second accused. The appellant was employed as Lineman in Keelkattalai (External) Telephones and the second accused T.N.Venkatraman was employed as Telephone Technical Assistant in the same office.
3. That on 19.10.2001 P.W.9 Mr.P.K.Nair, Inspector of Police, attached to CBI/ACB, Chennai had laid a final report against the appellant S.Kumar and the second accused T.N.Venkatraman before the Court of Additional Special Judge for CBI Cases, Chennai, alleging that the appellant (A1) being public servant employed as Lineman in Keelkattalai (External) had demanded and accepted a sum of Rs.700/- from the complainant (P.W.5) as gratification other than the legal remuneration as a motive or award for installation of the telephone instrument and transfer at the residence of the complainant Dr.Laxman Marvarkar (P.W.5) for which it is alleged that the second accused T.N.Venkatraman had abetted the appellant (A1) for the commission of the above said offence and therefore the appellant was charged under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, whereas the second accused T.N.Venkatraman was charged under Sections 109 I.P.C. and 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
4. The learned Additional Special Judge for CBI Cases, Chennai, after taking cognizance of the above said offences and on hearing both sides had framed necessary charges.
5. When the ingredients of the charges were explained and questioned, the first and second accused had pleaded innocent and claimed to be tried. Therefore, they were put on trial.
6. The prosecuting agency in order to establish it's case had examined as nearly as 9 witnesses and during the course of their examination, Exs.P1 to P22 were also marked. Neither oral nor documentary evidence was adduced on behalf of the defence side.
7. On appraising the evidences, both oral and documentary, the Trial Court had found the appellant (A1) guilty under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and convicted and sentenced as stated above. The second accused was found not guilty and hence he was acquitted of all the charges levelled against him.
8. Being aggrieved by the conviction and sentence, the appellant being the first accused has knocked at the door of this Court with the present criminal appeal.
9.The gravamen of the prosecution case is this;
9.1. P.W.5 Dr.Laxman Marvarkar is employed as the consultant Dermatologist in Appollo Hospital, Colombo. During the year 1996-2000 he was working in Madurai and in the year 2001, he had shifted from Madurai to Chennai. Before his shifting, he had applied for shifting of his telephone connection bearing No.563571 from Madurai to Chennai. Hence, he had presented an application under Ex.P6 on 05.02.2001 before the Customer Service Center, BSNL, Madurai. He had also received a surrender certificate (Ex.P7) to that effect at the end of March, 2001.
9.2. Subsequently, he had also applied for providing telephone connection at Saidapet Telephone Office on 03.04.2001. Thereafter, he did not get any communication and therefore he had been to Commercial Office, Panagal Building at Saidapet on 03.05.2001, wherein he was informed that an advice note was sent to Keelkattalai Telephone Exchange for providing telephone connection. Therefore, he waited for one week and in the meanwhile he had received a copy of the advice note from Saidapet Office directing him to contact Keelkattalai Telephone Exchange.
9.3. That on 10.05.2001, he went to Keelkattalai Telephone Exchange to meet the Junior Engineer. He had informed him to meet the Sub-Divisional Engineer at Puzhudhivakkam Office on 11.05.2001 around 09.30 a.m. Accordingly, he went to Puzhuthivakkam Office. When he was enquiring about the Sub-Divisional Engineer, the first accused came there and represented that he was incharge of that area for providing telephone connection and therefore he had demanded a sum of Rs.700/- to provide telephone connection. Since P.W.5 was not willing to pay the bribe, he told the appellant/first accused that he would come on Monday with Rs.700/-
9.4. In the evening of the same day i.e.11.05.2001, he went to CBI Office, met the Superintendent of Police and informed about the incident. On hearing this, the Superintendent of Police had introduced P.W.7 Mr.Anandakrishnan, Sub-Inspector of Police, attached to CBI/ACB, Chennai and instructed him to take necessary action. Then, P.W.7 called P.W.5 to his chamber and enquired about the complaint. He had also asked P.W.5 to prefer a complaint in writing addressed to the Superintendent of Police, CBI, Chennai, for which P.W.5 had replied that all the required particulars were kept in his house and therefore he could prefer the written complaint only on the next day. Then, P.W.7 had instructed him to come on 14.05.2001 with a written complaint.
9.5. P.W.7 had verified the genuineness of the complaint and made arrangements for laying a trap on 14.05.2001. P.W.7 had also instructed P.W.5 to come at 06.00 a.m. On 14.05.2001. In the meanwhile, P.W.7 had made arrangements to draw two independent witnesses to be present in the morning of 14.05.2001.
9.6. That on 14.05.2001 at about 06.30 a.m. P.W.5 had been to the Office of P.W.7 with a written complaint. On receipt of the complaint under Ex.P13, P.W.7 had forwarded the same to the Superintendent of Police and inturn the Superintendent of Police had made an endorsement on the complaint to take necessary action.
9.7. Based on the complaint dated 14.05.2001, P.W.7 had registered a case in Crime No.RC MA1 2001 A 0016 under Section 7 of the Prevention of Corruption Act, 1988 against the appellant and despatched the same to the learned Additional Special Judge, for CBI Cases, Chennai. (The printed First Information Report was marked as Ex.P21.) 9.8. In the meantime, the trap team and the independent witnesses viz.P.W.6 Balakrishnan, working in ICF and one Thiyagarajan, working in Indian Bank, had reported P.W.7. For the purpose of preparing entrustment proceedings, the complainant P.W.5 and P.W.6 and other witnesses were introduced to the other trap team members and then P.W.7 had read out the copy of the complaint to all the trap team members. The independent witnesses had clarified the doubts by putting questions to the complainant and also satisfied with the genuineness of the complaint.
9.9. Then P.W.7 had told the trap team members about the plan of laying a trap on the appellant/first accused, when he demand and accept the bribe from the complainant. The Sodium Carbonate and Phenolphthalein test was demonstrated on the currency notes (seven numbers of 100 rupee currency notes and also on the white window envelope) brought by P.W.5 as instructed by P.W.7.
9.10. Then P.W.6 and the other independent witnesses had signed over the envelope for their identification in the later stage. The details of the Sodium Carbonate Phenolphthalein test was recorded in the entrustment mahazar and the tainted currency notes were put in the window envelope and placed the same on the left side pocket of P.W.5 by P.W.7. Thereafter, P.W.7 had instructed P.W.5 not to touch the cover or the bribe amount unless it is demanded by the appellant/first accused.
9.11. P.W.6 was also instructed by P.W.7 to accompany P.W.5 to observe and over hear the transactions and conversations, which may take place between P.Ws and the appellant during the trap time. Apart from this, P.W.7 had also instructed P.W.5 and P.W.6 to give a signal by wiping their face with handkerchief once the bribe amount is received by the appellant/accused. Then a trap kit consists of Sodium Carbonate powder, clean glass tumblers, clean glass bottles, clean water and other stationary items were taken by Ravikrishnan and the trap team members had signed in the entrustment mahazar prepared under Ex.P14. At about 08.30 a.m. the trap team had left for the trap spot in their CBI vehicle and reached near the residence of P.W.5 and as instructed by P.W.7. P.W.5 had alighted at his residence along with P.W.6 and from there P.W.5 had proceeded to the trap spot in his two wheeler along with P.W.6 and there at 09.30 a.m. 9.12. P.W.5 went inside the office along with P.W.6. and was making enquiry about the appellant/first accused with the watchman. Whileso, the appellant/first accused himself came there. On noticing him, P.W.5 had shown his advice note and asked him to provide telephone connection and he had also informed him that he had brought the amount of Rs.700/- as demanded by him. Then the appellant/first accused had asked him to pay the money. P.W.5 had also taken the cover with the currency notes and handed over the same to the appellant/first accused and asked him to finish the work on the same day itself. Before putting the bribe amount in his pocket, the appellant had told that he could not complete the work on the same day and by saying so he had returned the cover. Then the appellant/first accused went inside and brought some print out and compared the same with P.W.5's advice note. The transactions and the conversations were being watched by P.W.6 at the distance of two steps. The print out brought out by the appellant was marked as Ex.P15. The advice note issued to P.W.5 was marked as Ex.P16. Thereafter, the appellant had agreed and demanded another hundred rupees in addition to the amount already demanded. For that the P.W.5 had told him that he could pay the amount only after completion of the work. The appellant/first accused had then agreed for the same and asked him to part with the cover containing Rs.700/-. Accordingly, P.W.5 had handed over the cover with Rs.700/- to the appellant/first accused and he had also received it in his right hand and kept in his shirt pocket.
9.13. On noticing the pre-arranged signal shown by P.W.5, P.W.7 had alerted the other trap team members and rushed to the spot, wherein P.W.5 had identified the appellant/first accused. Then P.W.7 went nearer to the appellant/first accused and revealed his identity and also disclosed the identity of the other trap team members. He had also asked the appellant/first accused as to whether he had demanded and accepted the bribe amount of Rs.700/- from P.W.5. On hearing this, the appellant/first accused was found perplexed and perturbed and also seemed to be nervous. His answer was recorded in the recovery mahazar proceedings. Then P.W.7 had asked him to raise his both hands and also informed him that he was under arrest. Thereafter, his right hand and shirt pocket were subjected to Sodium Carbonate Phenolphthalein test and the test itself was proved to be positive.
9.14. Then P.W.7 had prepared the recovery mahazar and recorded the statements of P.W.5, P.W.6 and the appellant/first accused as well. The proceedings were completed at 03.30 p.m. on the same day ie.on 14.05.2001 and later on the records were entrusted with P.W.9 P.K.Nair, Inspector of Police, attached to CBI/ACB, Chennai. Thereafter, he took up the case for investigation on 23.05.2001 and collected the relevant documents. He had also examined the witnesses and recorded their statements. He had obtained the orders of sanction from P.W.2 and P.W.1 respectively under Ex.P2 and Ex.P1 to launch prosecution against the appellant/first accused and the second accused.
9.15. After obtaining chemical analysis report (Ex.P22) from P.W.8 A.Visalakshi, Scientific Assistant Grade-II, Forensic Sciences Department, Chennai-4, P.W.9 had filed the charge sheet before the learned Additional Special Judge for CBI Cases, Chennai on 19.10.2001.
9.16. With the evidence of P.W.9 P.K.Nair, the prosecution has closed its side.
10. When the appellant/first accused and the second accused were examined under Section 313(1)(b) of the Code of Criminal Procedure, after explaining the incriminating circumstances arising out of the testimonies of the prosecution witnesses they had replied that they had nothing to do with the alleged offences and that they had been falsely implicated in this case. Neither oral nor documentary evidence was adduced on behalf of the defence side.
11. On assessing the evidences both oral and documentary, the learned Trial Judge, while acquitting the second accused of all the charges under Section 109 I.P.C., 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, had convicted and sentenced the appellant/first accused as aforestated.
12. Heard Mr.V.Udayakumar, learned counsel for the appellant/first accused and Mr.N.Chandrasekaran, learned Special Public Prosecutor for the respondent.
13. This Court has carefully gone through the Judgment of the Trial Court and it is unfortunate to state that the Trial Court has, totally accepted the case of the prosecution and without analysing the evidences of the prosecution witnesses, in their cross-examination, and without applying its mind on the legal principles in connection with the concept of the cross-examination, as enunciated under Sections 137 and 138 of the Indian Evidence Act, it has concluded that the appellant/first accused is guilty for the alleged offences under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The conclusion of the Trial Court is perverse and against the doctrine of natural justice.
14. Article 21 of the Constitution of India confers fundamental right to each and every subject of the land even to defend him in any illegal proceedings. Any legal provision which snarls at an indicted person without affording any remedy to him to disprove an item of evidence which could nail him down cannot be approved as consistent with the philosophy enshrined in Article 21 of the Constitution of India. The first effort which the courts should embark upon in such a situation is to use the power of interpretation to dilute it to make the provision amenable to Article 21 of the Constitution of India. This principle is laid down by the Apex Court in Amery Pharmaceuticals v. State of Rajasthan, (2001) 4 SCC 382.
15. It is obvious to note here that the appellant/first accused was working as a Lineman in Keelkattalai (External) Telephones, Chennai. The prime allegation levelled against him by the prosecution is that he being a public servant officiating as lineman in Keelkattalai (External), Chennai BSNL, had demanded and accepted the amount of Rs.700/- on 14.05.2001 from P.W.5 for providing telephone connection.
16. When the prosecuting agency has come forward with a specific accusation of corruption against the appellant/first accused, it is incumbent on the part of them to prove the indictment with clinching and impeccable evidence against him beyond all reasonable doubts. This specific allegation against the appellant/first accused would definitely affect his private right and his self respect as well and therefore the prosecution must have thorough scrutinisation of the complaint to find out whether any prima facie case is made out.
17. In this connection, this Court finds it more relevant to place reliance upon the decision in State of Bihar vs. Lal Krishna Advani, (2003) 8 SCC 361 : AIR 2003 SC 3357. In this case, the Apex Court has held that right to reputation is a facet of the right to life of a citizen under Article 21 of the Constitution. In case any authority, in the discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say in the matter. In such circumstances right of an individual to have a safeguard of the principles of natural justice before being adversely commented upon by a Commission of Inquiry, is statutorily recognised and violation of the same will have to bear the scrutiny of judicial review.
18. In Divine Retreat Centra v. State of Kerala, (2008) 3 SCC 542 also the Apex Court has held that no judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation.
19. On coming to the instant case on hand, though the appellant/first accused was given an opportunity to have the veracity of the witnesses tested, the Trial Court has unfortunately lost sight upon the cross-examination of all the witnesses and proceeded to believe the story of the prosecution and ultimately found the appellant/first accused guilty and sentenced as detailed above.
20. As observed in the earlier paragraphs and in the light of the above cited decisions, this Court finds that the finding of the Trial Court is in total negation of the doctrine of natural justice. With this backdrop let us step into the merits of the case.
21. P.W.5 is not a layman, but, he is a Doctor by profession. On account of his shifting to Madras from Madurai, he wanted to transfer his telephone connection bearing No.563571. For that purpose, he had presented an application on 05.02.2001, before the Customer Service Center, BSNL, Madurai and subsequently he had also deposited a sum of Rs.3,000/- along with the application before the Saidapet Telephone Office, Chennai. According to his evidence, on 11.05.2001 at about 09.30 a.m. he had been to the Sub-Divisional Engineer's Office at Puzhudhivakkam and enquired about the Sub-Divisional Engineer. Whileso, the appellant/first accused came there and introduced himself that he was incharge of that area, in which P.W.5 is residing and he was the appropriate person to provide telephone connection, for which he had demanded a sum of Rs.700/-.
22. It is also revealed from the evidence of P.W.5 that on the evening of 11.05.2001, he had been to the Office of the Superintendent of Police, attached to CBI and informed him about the demand made by the appellant/first accused. The very conduct of P.W.5 discloses that he, at the earliest point of time, had given an oral complaint with the Superintendent of Police attached to CBI in Chennai.
23. According to P.W.7 T.P.Anandha Krishnan, Inspector of of Police attached to CBI/ACB, Chennai, the Superintendent of Police had called him to his chamber and introduced P.W.5 and instructed him to take necessary action on the oral complaint given by P.W.5. This is what P.W.7 had deposed in his chief-examination.
24. As per the evidence of P.W.5 and P.W.7, it is established that on 11.05.2001, at about 05.00 p.m. P.W.5 had lodged an oral complaint before the Superintendent of Police as well as before P.W.7, Inspector of Police. Soon after the receipt of the oral complaint, what P.W.7 should have done? What is the procedure to be followed on receipt of an oral complaint from an aggrieved person? This simple analogy was not even known to P.W.7, Inspector of Police, attached to CBI.
25. Chapter XII of the Code of Criminal Procedure, 1973 contemplates about the information to the Police and their powers to investigate. Section 154 of the Code of Criminal Procedure, 1973 enacts as follows:
154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing any by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
26. In the present case, it is apparent that P.W.5 had first informed to the Superintendent of Police, attached to CBI and the Superintendent of Police after having satisfied with the said information that it disclosed the commission of a cognizable office, he immediately called P.W.7, who is the Inspector of Police and directed him to investigate the matter. But, P.W.7 being a responsible Police Officer has not followed all those legal principles and procedures enunciated under the proviso to Section 154 of the Code of Criminal Procedure. Instead, he had instructed P.W.5 to prefer his complaint in writing addressed to the Superintendent of Police, CBI, Chennai. But, P.W.5 had not turned up to present the written complaint at once. But, he had represented P.W.7 that he was not readily having the particulars and that he would come on the next day. But, P.W.7 instructed him to come on 14.05.2001, at about 06.00 a.m. In the meantime, P.W.7 had organised a team for trap proceedings including two official witnesses and they had also come readily to the chamber of P.W.7 at about 06.30 a.m. on 14.05.2001 P.W.5 had also arrived at 06.30 a.m. Only thereafter, P.W.7 had received the writing complaint from P.W.5 and forwarded the same to the Superintendent of Police and the Superintendent of Police had made an endorsement to take necessary action and only on the basis of that endorsement P.W.7 happened to register a case in Crime No.RC MA1 2001 A 0016 under Section 7 of the Prevention of Corruption Act, 1988. The complaint lodged by P.W.5 is marked as Ex.P13 and the printed First Information Report was marked as Ex.P21.
27. P.W.7 in his cross-examination had admitted that on 11.05.2001 for the first time P.W.5 had made an oral complaint. He has also admitted that he had recorded the oral complaint given by the P.W.5 in the general diary. But, he did not register the case on that day. According to P.W.7 already he had received the oral complaint and entered into the general diary. When such being the case, the oral complaint lodged by P.W.5 and recorded by P.W.7 in the general diary must be the original complaint and there cannot be any second complaint for the same cause of action on subsequent date. All these events as narrated by the prosecuting agency seemed to be unnatural and dramatic.
28. P.W.5 says that his first visit to the Puzhuthivakkam Office was only on 11.05.2001. He did not aware that a visitors book was maintained in the Puzhuthivakkam Office. He did not enter his name in the visitors book on that date. He had also met the Sub-Divisional Engineer on the said date. But, still he would maintain that he had visited the Puzhuthivakkam Office on 11.05.2001. But, the version of P.W.5 in this connection is left isolated without any corroboration or legal proof. According to P.W.5 even on 11.05.2001, when he went to Superintendent of Police Office, he was having a copy of the advice note. But, he did not show to the Superintendent of Police, which has been admitted by the P.W.5 in his cross-examination.
29. With regard to the allegation that on 11.05.2001 the appellant/first accused had made a demand of Rs.700/- from P.W.5 for effecting telephone connection, the learned counsel for the appellant/first accused would submit that it was quite improbable to say that a demand was made even prior to the receipt of the advice note by the appellant/first accused. He has also added that when the prosecution was not able to establish the visit of P.W.5 to Puzhuthivakkan Office on 11.05.2001, the question of demand alleged to have been made by the appellant/first accused did not arise.
30. P.W.7, in his cross-examination, would depose that he had verified through his source regarding the visit of the complainant (P.W.5) at Keelkattalai Telephone Exchange on 11.05.2001. But, he did not disclose the source from where he had verified the visit of P.W.5 on 11.05.2001. P.W.5 in his cross-examination has deposed that apart from the Watchman and the appellant/first accused, he did not meet any other person in the telephone exchange. But, in order to establish his visit to Puzhuthivakkam Telephone Exchange on 11.05.2001 on which date the appellant/first accused was said to have made his demand of Rs.700/- from P.W.5, the prosecution has not chosen to examine the watchman. P.W.7, Inspector of Police has also admitted in his cross-examination that he was aware that a visitors book was maintained in Keelkattalai Exchange (External).
31. From this piece of evidence, it is ratified that a visitors book was maintained in Keelkattalai Telephone Exchange (External), but the prosecution never chosen to recover the visitors book so as to establish the fact that P.W.5 had visited the Office on 11.05.2001.
32. Mr.V.Udayakumar, learned counsel for the appellant has also submitted that as seen from the evidence of P.W.5, he had been to the Office of the Junior Engineer, Keelkattalai Telephone Exchange and shown the advice note on 10.05.2001. In Ex.P13 complaint, he has stated that it was learnt that advice note for giving telephone connection was sent to Keelkattalai Telephone Exchange on 03.05.2001.
33. The learned counsel for the appellant has also adverted to that P.W.4 Sub-Divisional Engineer, in his evidence would state that on 04.05.2001 the Commercial Officer South West, Panagal Building, had forwarded an advice note (Ex.P9), which was received in her office on 08.05.2001. Further, the learned counsel has also stated that on 14.05.2001 morning the advice note was handed over to the External, Keelkattalai Telephone Exchange. The certified copy of the advice note was marked as Ex.P10. In this regard, the learned counsel would submit that P.W.5 could not have shown the advice note on 10.05.2001 to the Junior Engineer, Keelkattalai Telephone Exchange as the advice note was handed over only on 14.05.2001 to the External Keelkattalai Telephone Exchange and that the appellant/first accused could not have demanded any amount on 11.05.2001 as alleged by the complainant, on which date no advice note was issued.
34. The learned counsel for the appellant has also submitted that the story of prosecution is highly doubtful and improbable and it could not be based for maintaining conviction on the appellant/first accused. In this regard, he would submit that though the alleged demand was made on 11.05.2001, P.W.5 was able to lodge a written complaint only on 14.05.2001. Hence, there was a delay in lodging the complaint.
35. The learned counsel has also submitted that on 14.05.2001, at about 06.30 a.m. P.W.5 had lodged a written complaint with P.W.7. But, even prior to that P.W.7 had instructed the members of the trap team to report in his chamber at 06.00 a.m. This circumstance, according to the learned counsel for the appellant has shaken the very root of the prosecution case.
36. The learned counsel for the appellant has also submitted that after the entrustment mahazar procedures were completed, all the members had proceeded to trap spot. But, P.W.5 got down from the CBI vehicle at his residence along with P.W.6 and thereafter proceeded in his motorcycle to the trap spot. In this connection he would submit that the circumstances narrated by the prosecution seems to be contradictory in nature.
37. It is pertinent to note here that in chief-examination P.W.5 has stated that at about 09.30 a.m. On 14.05.2001, he had parked his motorcycle in front of the office and went inside the office along with P.W.6. When he was making enquiry about the first accused with the watchman, the appellant himself came there and P.W.5 showed him the advice note and requested him to provide telephone connection. It is also revealed from his chief-examination, that he himself had told the appellant/first accused him that he had brought Rs.700/- as demanded by him. But, his evidence does not have any reference to show that the appellant/first accused had voluntarily made demand on that day as to whether P.W.5 had brought the bribe amount of Rs.700/-.
38. The other circumstance, which is revealed from the chief-examination of P.W.5, is that he took the cover with the tainted currency notes and handed over to the appellant/first accused and told him to finish the work on the same day. Before putting the amount in his pocket, the appellant/first accused told him that he could not complete the work on the same day and therefore he had returned the cover. Then, the appellant had gone inside and brought some print out and then compared the same with the advice note, which was in possession of P.W.5 and only thereafter he had agreed to complete the work on the same day itself and demanded another hundred rupees in addition to the amount demanded earlier. But, this has not been supported by P.W.6, who had accompanied P.W.5 at the time of trap proceedings.
39. On coming to the evidence of P.W.6, he would state in his chief-examination that the appellant/first accused had asked P.W.5 as to whether he had brought the demanded amount. This piece of evidence has also not been corroborated by P.W.5.
40. On careful scrutinization of testimonies of P.W.5 and P.W.6, it is significant to note here that the appellant/first accused has not even handled the currency notes. This fact has also been admitted by P.W.7 stating that the accused had not handled the money on that day. But, he had received the cover containing money on that day. It is also significant to note here that during the time of the demonstration of sodium carbonate and phenolphthalein test, prior to coming to the trap spot, phenolphthalein powder was smeared on the currency notes and the envelop as well. As has been spoken to by P.W.7, the appellant/first accused has not handled and counted the tainted currency notes. P.W.5 had simply put the cover in his pocket.
41. With regard to this circumstance, the learned counsel for the appellant would submit that the demand and the acceptance of money was not proved. The appellant/first accused had received the cover only and that P.W.7 had admitted that the appellant/first accused had not handled the money on that day. Therefore, the learned counsel has submitted that it is highly unbelievable that the appellant/first accused had received the cover containing money in the presence of P.W.6.
42. It may be relevant to point out here that during the course of the examination under Section 313 of the Code of Criminal Procedure, with regard to the incriminating circumstances, the appellant/first accused had replied that on 14.05.2001 P.W.5 had handed over the cover to him stating that the advice note was placed inside and that he did not know as to whether the money was placed inside the cover. No sooner than the cover was handed over, he was apprehended by the Police and that the explanation offered by the appellant/first accused is more probable and reasonable under the facts and circumstances of this case.
43. It is also important to note here that P.W.2 had accorded sanction to launch prosecution against the appellant/first accused. It may also be quite appropriate to note here that P.W.2 himself had participated in the trap proceedings. In his cross-examination, he would state that the requisition for according sanction was received by him through post and that no material was sent along with the requisition. According to the cross-examination of P.W.2, after receipt of the requisition, he had consulted his vigilance department and the vigilance department gave him a copy of the sanction order. After receipt of the same, he had signed in it. This portion of evidence would go to establish that P.W.2 prior to issue of sanction order had not verified any records.
44. According to P.W.2, the sanction order was only prepared by the vigilance department and he had simply signed in the copy of the sanction order after he had received the same from the vigilance department. His signature find a place was marked as Ex.P2. He has again ratified in his cross-examination that excepting the requisition of the sanction order, no other materials were sent to him by the vigilance department. He has also admitted that he had signed the recovery mahazar and that the first currency note number was found differed in Ex.A2 when comparing with the recovery mahazar. He has also fairly admitted that he had participated in the recovery proceedings and signed in the same and only thereafter he had placed the appellant/first accused under suspension.
45. As per the evidence given by P.W.2, he was a party to the trap proceedings conducted by P.W.7. He did not know the ingredients of the sanction order, but he had only signed the order, which was prepared by the vigilance department. When such being the case, how much credence could be attached with the sanction order issued by P.W.2 to launch prosecution against the appellant/first accused?
46. Mr.N.Chandrasekaran, learned Special Public Prosecutor for the respondent would submit that the preponderance of the probabilities has been established by the prosecuting agency and that the averments of the first information report itself would go to show that there was a demand made by the appellant/first accused from P.W.5 to give a sum of Rs.700/- as reward other than the legal remuneration to provide telephone connection.
47. The learned Special Public Prosecutor has also submitted that as revealed from the evidence of P.W.5, he had brought a sum of Rs.700/- as demanded by the appellant/first accused and that he had requested the appellant/accused to complete the work on the same day itself. Again, he had requested and placed the cover in his pocket, but, it was returned to P.W.5. He would further submit that he had also demanded another hundred rupee in addition to the bribe amount, which was demanded by him earlier and the very conduct of the appellant/first accused would go to show that there was a demand and acceptance and subsequently he was also caught red handed.
48. The learned Special Public Prosecutor has also made reference to the evidence of P.W.6 and P.W.7 and also drawn the attention of this Court to Ex.P17 recovery mahazar, wherein it is stated that Sri Kumar was asked to explain as to what happened when the complainant Shri Laxman had met him in the morning. He had replied that this day at about 09.30 hours Laxman came to office with another person and asked him by showing an Advice Note for giving connection. Shri Kumar told the complainant that it was not possible to give connection this day. Shri Laxman also told him that he had brought the money demanded by him. Then he went inside and met Shri Venkataraman, TTA incharge. He told TTA incharge that the party had come with money. Shri Venkatraman asked Shri Kumar to demand Rs.500/- from the subscriber for him. For that Shri Kumar denied as he had already demanded Rs.700/- including his share of Rs.200/-. Then Shri Venkatraman took out the printout from the computer pertaining to Advice Note No.367 and handed over to him. Shri Venkatraman also made an endorsement in the computer printout "Please Issue". Simultaneously, he entered the details in the ACU-4 book mentioning the Advise Note Number, Telephone instrument and other components required for cable fault. Then Shri Kumar came out and shown the printout to the customer stating that he would attend the work in the morning itself. Then he asked Shri Laxman to pay the money he brought as told on Friday. Then Shri Laxman handed over the envelope containing currency notes which could be seen by him through the window of the cover. He has also stated that out of this Rs.700/-, Rs.200/- has to be given to the TTA towards his share. Though it is stated in the recovery mahazar, the prosecution has miserably failed to establish this fact.
49. On the other hand, in order to fortify his contention, the learned counsel for the appellant/first accused has placed reliance upon the following decisions:
1. Superintendent of Police, C.B.I v. Tapan Kr. Singh, 2003 CRI.L.J. 2322,
2. Punjabrao v. State of Maharashtra, AIR 2002 SC 486,
3. C.M.Girish Babu v. C.B.I., Cochin, High Court of Kerala, AIR 2009 SC 2022,
50. In the first decision viz.Superintendent of Police, C.B.I v. Tapan Kr. Singh, 2003 CRI.L.J. 2322, a Division Bench of the Hon'ble Supreme Court of India has held that general diary entry can be treated as F.I.R. in appropriate case, if it discloses commission of cognizable offence. It is also held that the facts recorded therein prima facie disclosing commission of offence under Section 13 of Prevention of Corruption Act and therefore it can be treated as F.I.R. It could not be discarded as vague on ground that it does not contain full details of offence. Entry giving rise to suspicion that cognizable offence might have been committed and therefore the Police Office is entitled to intercept accused and investigate the case. The Apex Court has also held that as contemplated under Section 154 of the Code of Criminal Procedure, the first information report need not disclose all facts and details relating to offence reported. True test is that police officer has reason to suspect commission of offence which he is empowered to investigate.
51. In the second decision viz.Punjabrao v. State of Maharashtra, AIR 2002 SC 486 it is held that we have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond treasonable doubt as the prosecution, but can establish the same by preponderance of probability.
52. In the last decision viz.C.M.Girish Babu v. C.B.I., Cochin, High Court of Kerala, AIR 2009 SC 2022, the Apex Court, in Paragraph No.8 it is held that:
"8. The High Court upon re-appreciation of evidence came to the conclusion that the prosecution miserably failed to prove the charge against the appellant for the offence under Section 13 (1) (d) read with Section 13 (2) of the said Act. In this regard, the High Court found that there is nothing in the evidence of PW-11 - Natarajan, official witness, to arrive at any conclusion of appellant making any demand of gratification. PW-11 stated that from the conversation between the appellant and PW-10, he could heard the appellant asking "is it ready?" and PW-10 only nodding his head. It is for that reason the High Court recorded that the alleged demand by the appellant on 2.10.1999 is highly doubtful and is not proved beyond reasonable doubt. The High Court relied upon yet another circumstance creating a doubt as regards the demand of any gratification by the appellant as there is no mention of any such demand in Exhibit P-9 - post trap mahazar. The High Court accordingly acquitted the appellant of charges under Section 13(1)(d) read with Section 13(2) of the said Act."
53. As rightly held in the above cited decisions, in the present case also the prosecution has miserably failed to establish their case that there was a demand by the appellant/first accused on 11.05.2001 and 14.05.2001. The prosecution has not explained the reasons for the belated registration of the first information report; for the participation of P.W.2, who is said to have accorded sanction to launch prosecution against the appellant/first accused in the trap proceedings. As admitted by him, he had simply signed in the sanction order and he had not prepared the sanction order as there was no materials includes the requisition. Therefore, P.W.2 has lost competency to issue the order of sanction for prosecution and therefore the sanction order issued by him to launch prosecution against the appellant/first accused has lost its sanctity and hence no evidentiary value could be attached.
54. As submitted by the learned counsel for the appellant, this Court finds that the appellant/first accused had probablised his case of defence that the cover was handed over to him under the guise of placing the advice note inside and he has also probablised his case that no money was placed inside the cover.
55. Under this circumstance, this Court is of view that the appellant/first accused has established his defence by preponderance of probabilities.
56. Keeping in view of the observations made above, this Court finds that the prosecution has miserably failed to bring home the guilt of accused beyond all reasonable doubts and hence the appellant/first accused is liable to be acquitted as he is not found guilty under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
57. In the result, this criminal appeal is allowed and the finding, conviction and sentence imposed on the appellant/first accused are set aside. The appellant/first accused is not found guilty and as such he is acquitted of the charges under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The fine amount of Rs.2,500/- paid by the appellant/first accused shall be refunded to him and the bail bonds executed by and on behalf of him shall stand discharged.
krk To
1. The learned Additional Special Judge, for CBI Cases, Chennai.
2. The Public Prosecutor, Madras High Court