Madras High Court
K.Nagarajan vs State Rep. By on 27 October, 2021
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.10.2021
PRONOUNCED ON : 27.10.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.A.No.381 of 2011
K.Nagarajan .. Appellant/1st Accused
Vs.
State rep. by
The Inspector of Police,
Department of V & AC,
Crime No.2 of 2001,
Vellore Disrict. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., questioning
the conviction and sentence in Special Case No.1 of 2003, passed by the
learned Chief Judicial Magistrate-cum-Special Judge, Tiruvannamalai, by
judgment, dated 14.06.2011.
For Appellant .. Mr.R.John Sathyan
For Respondent .. Mr.E.Raj Thilak
Additional Public Prosecutor
http://www.judis.nic.in
2
ORDER
This Criminal Appeal has been filed by A1 in Special Case No.1 of 2003, questioning the conviction and sentence passed by judgment dated 14.06.2011 by the learned Chief Judicial Magistrate-cum-Special Judge, Tiruvannamalai.
2. The First Information Report in Crime No.2 of 2001 had been registered by the Inspector of Police, Department of Vigilance and Anti- Corruption, Vellore District on 06.09.2001, consequent to a complaint given by I.Annamalai that the appellant had demanded bribe amount of Rs.3,000/- for conducting survey of the lands of the defacto complainant.
3. It is the case of the prosecution that the defacto complainant wanted survey of his lands in S.F.No.43/3 at Vadavilapakkam village to be done, and in this connection, he had approached the surveyor attached to Polur Taluk office, who directed the defacto complainant to the present appellant, who was working as Village Administrative Officer.
4. It is the further case of the prosecution that the appellant had http://www.judis.nic.in 3 demanded a bribe amount of Rs.3,000/- for conducting survey of the lands of the defacto complainant. This demand was allegedly made on 25.08.2001 and again reiterated on 05.09.2001. The defacto complainant had lodged a complaint with the respondent on 06.09.2001, pursuant to which, F.I.R in Crime No.2 of 2001 had been registered against the present appellant under Section 7 of Prevention of Corruption Act, 1988.
5. It is the further case of the prosecution that on 10.09.2001, the appellant had again demanded the bribe amount and had also received the amount and was caught red handed. It had been stated that the appellant tried to eat the currency notes and had also given them to A2, who tried to escape with the money, but was caught. It was under these circumstances that, after investigation, with respect to allegations in the First Information Report, a final report had been filed against the appellant/A1 and A2 under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and under Section 201 of I.P.C.
6. After trial, both the accused were found guilty of the charges. This appellant was imposed with a sentence of six months rigorous http://www.judis.nic.in 4 imprisonment, fine of Rs.1,000/- and in default of payment of fine, three months simple imprisonment for the offences under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. With respect to the offence under Section 201 of I.P.C, the appellant was imposed with six months rigorous imprisonment and a fine of Rs.1,000/- and in default, three months simple imprisonment. It was also stated that both the sentences would run concurrently. As against A2, a fine amount of Rs.5,000/- and in default, three months of simple imprisonment was imposed, apart from directing him to be restrained in Court premises till the rising of the Court. Criminal Appeal has been filed only by A1. A2 has not filed any appeal.
7. Heard arguments advanced by Mr.R.John Sathyan, learned Counsel for the appellant/A1 and Mr.E.Raj Thilak, learned Additional Public Prosecutor for the respondent.
8. During the course of trial, to prove the charges under Section 7 and Section 13(1)(d) of P.C.Act and also under Section 201 of I.P.C, prosecution had examined PWs.1 to 8 and had also marked Exs.P1 to P17. They also produced MOs.1 to 12, material objects. On the side of the http://www.judis.nic.in 5 accused, DWs.1 and 2 had been examined. The defence did not mark any document.
9. It is the contention of Mr.R.John Sathyan, learned Counsel for the appellant/A1 that the prosecution had failed to establish demand of bribe and the learned Counsel, therefore, stated that on that very ground itself, this Court should interfere with both the conviction and sentence imposed by the Trial Court. It is also pointed out by the learned Counsel that the sentence had been wrongly imposed as six months had been given for both the offences under Section 7 and Section 13(1)(d) of P.C.Act, while, for offence under Section 13(1)(d) of P.C.Act, the minimum sentence prescribed was one year. At any rate, learned Counsel pointed out that this Court should examine the case of the appellant on merits and particularly examine whether demand for bribe has been established beyond reasonable doubt by the prosecution.
10. The learned Counsel pointed out that it is the case of the prosecution that the defacto complainant, who had been examined as PW.2, wanted survey to be conducted of his lands at Vadavilapakkam village in http://www.judis.nic.in 6 S.F.No.43/3. This was necessitated since he had a dispute with respect to a portion of the said land with the adjacent owner. PW.2 had therefore given an application in the taluk office at Polur on 22.06.2001. That application was marked as Ex.P2 during trial. PW.2, then, approached the surveyor at Polur taluk office, who directed him to approach the appellant herein. The said surveyor, Vijayan, had not been examined as a witness by the prosecution.
11. Pointing out this particular fact, Mr.R.John Sathyan, learned Counsel for the appellant asserted that non-examination of the surveyor had weakened the foundation of the case of the prosecution. The learned Counsel pointed out that as a Village Administrative Officer, the appellant can only identify the lands, but, cannot undertake the task of surveying the lands. He was not authorized to conduct survey. The reasons for non- examining the surveyor, Vijayan, during trial, had not been explained by the prosecution.
12. At any rate, PW.2 appears to have met the appellant herein on 25.08.2001, nearly more than two months after his initial conversation with http://www.judis.nic.in 7 Vijayan, the surveyor.
13. The learned Counsel again pointed out this particular fact and stated that no explanation has been given as to what had happened in the interregnum period of two months and as to why PW.2 did not meet the appellant earlier or as to why PW.2 did not insist that Vijayan alone was the competent official to survey the land.
14. It is further pointed out by Mr.R.John Sathyan, learned Counsel for the appellant that on 25.08.2001, it is the case of PW.2 that the appellant herein had demanded a sum of Rs.3,000/- as bribe to make arrangements to conduct survey of the land. The learned Counsel, very specifically, pointed out that there was no independent corroboration established by the prosecution for this particular demand.
15. Thereafter, PW.2 had again approached the present appellant on 05.09.2021, when again there was, according to PW.2, a demand for Rs.3,000/- to be paid as bribe amount. It is again pointed out that there was no independent corroboration for this demand also. http://www.judis.nic.in 8
16. PW.2 had then given a complaint to the respondent Police on 06.09.2001. That complaint had been marked as Ex.P3.
17. A First Information Report/Ex.P4 had been registered under Section 7 of Prevention of Corruption Act, 1988 in Crime No.2 of 2001. Thereafter, the respondent who had decided to lay a trap, called upon the defacto complainant to bring the bribe amount to the office of the respondent and also arranged the presence of two independent witnesses. One of them had been examined as PW.3/Mohan/Agriculture Officer.
18. The Trap Laying Officer/PW.7 then demonstrated the interaction of Phenolphthalein powder with Sodium Carbonate and explained its significance. This demonstration and its procedure had been reduced in a Magazar, Ex.P5. The currency notes were then smeared with Phenolphthalein powder and were put in the pocket of PW.2 and he was instructed to pay the bribe amount, when demanded by the appellant.
19. On 07.09.2001, PW.2 and PW.3 went to the office of the http://www.judis.nic.in 9 appellant at South Vilapakkam. The appellant informed that the surveyor was at Polur and that they should all go and meet the surveyor. It is stated by PW.2, in his evidence, that the appellant informed that he would go to Polur in advance and PW.2 should then come there. This proceeding was again reduced in a Magazar, Ex.P6. Thereafter, PW.2 and PW.3 and all the other Police party went over to the Taluk office at Polur. They waited till 6.00 P.M. But, the appellant did not come. The surveyor also did not come. At that time, the son of PW.2, Devan, came and informed that he had seen the appellant at the bus stop, who informed him that PW.2 should come to the office the next day, since the surveyor had not come to his office that day. This proceeding was again reduced in a Magazar, Ex.P7. The next day, once again, the currency notes were smeared with Phenolphthalein power and the proceeding was again reduced in a Magazar, Ex.P8. The entire team along with PW.2 went to the office of the appellant, at South Vilapakkam. When they went there, the appellant was not present. The other office staff stated that the appellant will not be coming to the office. Mr.John Sathyan, learned Counsel pointing out the above, wondered whether it could still be believed that the appellant had indeed demanded bribe, since the conduct was not in consonance with the approach of a man http://www.judis.nic.in 10 who had actually demanded bribe. Till this point, there was no independent corroboration for demand of bribe. The son, Devan, had also not been examined as a witness.
20. It is the stand of PW.2 that he then sent his son Devan to go to the village of the appellant and enquire about him. The son came back and informed that the appellant stated that he had work in the field and could not come. He also stated that the appellant had informed him/the son, that PW.2 should come to the office on Monday along with the amount. These proceedings were again recorded in a Magazar, Ex.P9. Significantly, as pointed out by Mr.John Sathyan, the son was not examined by the prosecution to speak about this demand or information about demand.
21. Thereafter, on Monday, the entire team went to the office of the appellant. At that time, the Village Headman informed that the appellant was in the school premises and was awaiting PW.2. Thereafter, PWs.2 and 3 went over to that particular place. That place was actually a cow shed!
22. It is the case of the prosecution that the appellant demanded the http://www.judis.nic.in 11 bribe amount of Rs.3,000/- and it was handed over by PW.2. The appellant also apparently counted the currency notes and stated that it was short by Rs.500/-. He then recounted it. PW.2 and PW.3 then came out of the cow shed and gave the pre-planned signal. The Police officials who were present, particular, PW.7 and others tried to catch appellant. He ran from that place. However, he was caught by PW.7.
23. It is further stated by the prosecution that the appellant tried to eat the currency notes. He obviously could not. He gave then to the brother of the Village Headman, who tried to run away. That brother was A2. He was, however, also caught. The money was recovered. Sodium Carbonate/Phenolphthalein tests were conducted. A Magazar was also prepared.
24. Mr.R.John Sathyan, learned Counsel pointed out the above, quite elaborate and a little confusing sequence of events and asserted that demand of bribe amount had, not at all been established.
25. The learned Counsel stated that the first demand, on 25.08.2001, http://www.judis.nic.in 12 stood uncorroborated. The second demand, on 05.09.2001 was also uncorroborated. The conversation by the son of PW.2, Devan with the appellant again stood uncorroborated, since the son had not been examined as a witness. The surveyor, Vijayan, had not been examined as a witness. The Village Headman had not been examined as witness. In this connection, the learned Counsel stated that the defence had given a probable case through their evidence, wherein, it had been pointed out that owing to the land dispute, PW.2 had agreed to purchase the disputed piece of land and in this connection, had brought Rs.3,000/-, as advance and to receive the advance amount, the defence witness DW.1, had also come down from Banglore and the advance was paid in the presence of a neutral person, namely Village Administrative Officer, the appellant herein.
26. It was, therefore, pointed out by Mr.John Sathyan, learned Counsel that a probable explanation had been tendered by the defence, giving the reason why the amount of Rs.3,000/- was handed over. The learned Counsel pointed out that this fact should be examined in conjunction with the fact that the prosecution had failed to establish the demand of bribe beyond all reasonable doubt.
http://www.judis.nic.in 13
27. The learned Counsel stated that on this one ground itself, the conviction should set aside.
28. Mr.E.Raj Thilak, learned Additional Public Prosecutor, however, disputed this contention and stated that the demands on 25.08.2001 and on 05.09.2001 were made directly to PW.2, who gave evidence in Court regarding the same. The learned Additional Public Prosecutor also stated that even though the surveyor, Vijayan and Devan, the son of PW.2 had not been examined as witnesses, it palls into insignificance since, on 10.09.2001, the appellant had received the bribe amount. The learned Additional Public Prosecutor stated that the conduct of the appellant should also be taken into consideration. He tried to screen away the currency notes by trying to eat them and thereafter, had given them to A2 and had directed A2 to run away. The learned Additional Public Prosecutor, therefore, stated that the demand had been established. Once demand had been established, then the explanation given by the appellant will have to be examined only to see whether it is probable.
http://www.judis.nic.in 14
29. The learned Additional Public Prosecutor stated that the evidence by DWs.1 and 2 will have to be rejected as an after thought. It was pointed out that one of the defence witnesses was, actually, a brother of A2 and it was therefore, stated that they are interested witnesses. The learned Additional Public Prosecutor, therefore, stated that since the demand had been established and acceptance of the bribe amount had also been established and recovery of the bribe amount had also been established, the conviction cannot be interfered with.
30. I have given anxious consideration to the arguments advanced by Mr.R.John Sathyan, learned Counsel for the appellant and by Mr.E.Raj Thilak, learned Additional Public Prosecutor. I have also perused the material records.
31. The case of the prosecution is that, the appellant/A1, who was working as Village Administrative Officer had demanded a sum of Rs.3,000/- to be paid as bribe by PW.2, I.Annamalai, who wanted his lands to be surveyed. This was required because there was a dispute over possession of a portion of the land. In this connection, an application had http://www.judis.nic.in 15 been given in the Taluk office at Polur for survey of the land. The surveyor, Vijayan, at Polur taluk office had directed the defacto complainant/PW.2/Annamalai to meet the present appellant. However, for reasons best known to the prosecution, said Vijayan/surveyor had not been examined as witness.
32. It is stated that PW.2 had met the appellant on 25.08.2001. PW.2 had not given any explanation as to why he did not meet the appellant even though he was so directed to meet the appellant on 22.06.2001 itself. It is sacrosanct that there must be proof for demand of bribe.
33. In B. Jayaraj Vs. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543 : 2014 SCC OnLine SC 268 at page 58, it had been held as follows:-
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable http://www.judis.nic.in 16 doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu Vs. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] ".
34. This judgment has been relied by the Hon'ble Supreme Court in N. Vijayakumar Vs. State of T.N., (2021) 3 SCC 687 : 2021 SCC OnLine SC 53 at page 701. The Hon'ble Supreme Court held that __ "In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt".
35. In A. Subair Vs. State of Kerala, reported in (2010) 1 MLJ (Crl) 995, the Hon'ble Supreme Court has held as follows:
“The legal position is no more res integra that primary requisite of an offence under Section http://www.judis.nic.in 17 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.”
36. In V. Venkata Subbarao Vs. State, (2007) 3 SCC 175, the Hon'ble Supreme Court has held that__ "In the absence of a proof of demand, the question of raising the presumption would not arise. The Hon'ble Supreme Court has further held that Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved".
37. In the instant case, there is no corroboration for the alleged demand of bribe on 25.08.2001 by the appellant herein. No explanation has been given by PW.2 as to why he did not immediately lodged a Police complaint. He had, however, gone back to the appellant on 05.09.2001, when, according to PW.2, the demand was again reiterated by the appellant. http://www.judis.nic.in 18 Once again, there is no independent corroboration for such demand. However, a complaint had been given by the appellant and a F.I.R was registered. Thereafter, a strange series of events are alleged to have taken place.
38. It is the case of the prosecution that the appellant herein had directed to PW.2 to give the bribe amount of 07.09.2001. However, on 07.09.2001, even though PW.2 met the appellant, there was no demand. The appellant only stated that they must all go to the Polur taluk office to meet the surveyor. They all went to the Polur taluk office. However, the appellant did not come till 6.00 P.M., Devan, the son of PW.2 then surfaced from no where and stated that he had met the appellant in the bus stop and the appellant had told them to come over to his office, the next day. This son of PW.2 had not been examined as a witness. This is significant because again demand had not been raised and even if it had been raised to the son, the evidence of PW.2, in that regard, would, naturally, be hearsay evidence and inadmissible. However, on the next day, the entire team went over to the office of the appellant herein. The appellant was not present in the office. The son of PW.2 was then sent to the native village of the http://www.judis.nic.in 19 appellant to find out his whereabouts. He came back and stated that the appellant was busy in field work and further stated that he had been told by the appellant that the amount should be brought on Monday. This evidence is inadmissible since it is hearsay evidence. Demand is again thus not established. On Monday, the entire Police party went to the office of the appellant. He was not there. The Village Headman informed PW.2 that the appellant was in the school. The entire team went over to that particular place, where they found the appellant in a cow shed, surrounded by the Village Headmen and his brother. That is not a private place. It is very strange that a demand is made to PW.2 in that particular place and not in private. It is, in this connection, that the explanation given by the defence witnesses must be examined.
39. It is stated by the defence that DW.1 came over from Banglore for the very specific purpose of receiving Rs.3,000/- as advance payment for conveying the disputed portion of land to PW.2. It is the further case of the defence that the appellant, being a Village Administrative Officer, had been nominated as a mediator/third person to receive the amount and hand it over to DW.1. I hold that this explanation appears to be more probable because http://www.judis.nic.in 20 the amount was handed over in the presence of not only PW.3 but also A2 and also the Village Headmen. In the midst of such a group of persons, it is highly improbable that the appellant would have demanded bribe money and thereafter, received the money as bribe. He would have received it as a normal transaction advance amount paid towards sale consideration.
40. In this connection, it would be instructive to examine the judgment of Hon'ble Supreme Court in P. Parasurami Reddy Vs. State of A.P., (2011) 12 SCC 294 : (2012) 1 SCC (Cri) 552 : 2011 SCC OnLine SC 1024 at page 296, wherein it was held that___ "9. Considering the overall circumstances, we do feel that the prosecution has not been able to prove that the accused had fixed the time and place to receive the money. The dates 31-12-1993, 6-1-1994 and 11-1-1994 mentioned in the complaint of the complainant are rather speaking. It is further admitted in the evidence of PW 1, the complainant that on 11-1-1994, when the accused was tried to be approached, he was not found present in his office. It was, therefore, that the accused was approached on the second day i.e. on 12-1-1994. What surprises us is that when two http://www.judis.nic.in 21 panchas were present in the raiding party and if one of them had accompanied the complainant and noted the conversation between the complainant and the accused, that would have given a definite corroboration to the version of the complainant. But that did not happen".
"10. Further, even as per the complainant, when he approached the accused on 12-1-1994, he was driven away by the accused. In his cross-
examination, the complainant states as under:
“When I went there the accused on seeing me became irritated and asked me to go away and that I need not approach him.” Though thereafter the complainant asserted that the accused demanded bribe from him. It is rather strange that the complainant was driven out of the room when he first approached the accused. The complainant then remained silent as to what happened when he was turned away by the accused on his first meeting with the accused in his office. This circumstance, according to us, creates doubt. If the accused had to accept the bribe, he would never have driven away the complainant when he was approached by the complainant in his office. When both of them were http://www.judis.nic.in 22 alone in the office of the accused, that would have been the best opportunity for the accused to accept the bribe if there was any such demand on his behalf and if there was any such transaction. In short, there is no evidence to suggest as to what transpired between the accused and the complainant when the accused was first approached by the complainant".
41. Even in the present case, the acceptance is said to have been only in a public place, in a cow shed in the presence of several other persons.
Therefore, taking that fact into consideration in conjunction with the fact that the earlier demands had not at all been established by the prosecution, I hold that the benefit should be given to the appellant. No amount of suspicion can be proof of commission of an offence.
42. In the instant case, the surveyor, Vijayan, had not been examined. The son of PW.2, Devan, had not been examined. I hold that the explanation given by the accused for receiving of Rs.3,000/- had not been examined in its proper perspective by the learned Trial Judge. A perusal of the judgment shows that the learned Judge had proceeded with intent to http://www.judis.nic.in 23 convict the appellant. The sentence imposed was less than the minimum sentence prescribed by statute for offence under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. That is also a major irregularity committed by the learned Trial Judge.
43. Once demand of bribe had not been established to the satisfaction of the Court, then, all other aspects fall foul for consideration. The prosecution cannot be permitted to move forward to substantiate the charge against the appellant in the absence of reliable proof for demand of money as bribe amount for conducting survey of the land of PW.2.
44. It is also to be noted that the appellant, as Village Administrative Officer can never conduct survey of the lands. He can only identify the lands in a Village. He can assist the surveyor during the survey operation. It is, in this connection, that non-examination of the surveyor, Vijayan assumes significance. Further, non-examination of the son of PW.2 also assumes more significance because he had met appellant on two separate occasions. He had conversed with him. In fact, on the second occasion, he had stated that the appellant had directed him to inform that PW.2 should http://www.judis.nic.in 24 come to the office on Monday with the bribe amount. This statement should have been deposed before the Court by the said son, Devan. He had however not been examined. This is extremely fatal to the case of the prosecution.
45. At the time, when actual demand was made and when the amount was paid, a probable explanation has been given that it was only meant as advance sale consideration towards purchase of the disputed land by PW.2 from DW.1 and the appellant, being Village Administrative Officer, had been nominated as mediator during the sale transaction. Moreover, it is seen that the demand and acceptance is alleged to have occurred in a cow shed in full view and in the presence of total strangers. This, as observed by the learned Counsel for the appellant, is extremely improbable.
46. In this connection, I would rely on a decision of Hon'ble Supreme Court reported in Bhagwan Singh and others Vs. State of Madhya Pradesh, (2002) 4 SCC 85, the Hon'ble Supreme Court held as follows:-
"the golden thread which runs through the web of administration of justice in criminal case is that if http://www.judis.nic.in 25 two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted".
47. I hold that the prosecution has failed to cross the initial threshold of proof of demand. The benefit has to be extended to the appellant. The 'golden thread' is sacrosanct. Naturally, the charges against the appellant fail.
48. In the result, the present Criminal Appeal is allowed and the conviction and the sentence of the appellant is set aside. The appellant is acquitted of all charges levelled against him. The fine amount, if any paid, is directed to be refunded. The bail bonds are directed to be cancelled. The material objects are directed to be destroyed by normal procedure.
27.10.2021 Index:Yes/No Internet:Yes/No grs http://www.judis.nic.in 26 To
1.The Chief Judicial Magistrate-cum-Special Judge, Tiruvannamalai.
2.The Inspector of Police, Department of V & AC, Vellore Disrict.
http://www.judis.nic.in 27 C.V.KARTHIKEYAN,J grs Crl.A.No.381 of 2011 27.10.2021 http://www.judis.nic.in