Madras High Court
M.Seenivasan vs State Represented By on 6 January, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Criminal Appeal(MD) No.129 of 2015
M.Seenivasan .. Appellant/A1
Vs.
State represented by
The Inspector of Police,
Vigilance and Anti Corruption,
Madurai Detachment,
in crime No.2/2003 .. Respondent
Prayer : Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure and Section 27 of Prevention of Corruption Act, to call for the
records pertaining to the judgment in Special Case No.11 of 2011 on the file
of the Special Court for Trial of Prevention of Corruption Act Cases, Madurai
dated 17.04.2015 and set aside the same insofar as the petitioner is
concerned.
For Appellant :: Mr.N.Ananthapadmanabhan
For Respondent :: Mr.M.Chandrasekaran, APP
JUDGMENT
This appeal is directed against the judgment in Special Case No.11 of 2011 on the file of the Special Court for Trial of Prevention of Corruption Act Cases, Madurai dated 17.04.2015, whereby, appellant was convicted for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo one year RI and to pay a fine of Rs.5,000/- in default to undergo 3 months SI for the offence under Section 7 http://www.judis.nic.in of Prevention of Corruption Act, 1988 and also sentenced to undergo two 2 years RI and to pay a fine of Rs.10,000/- in default to undergo six months SI for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
2.The gist of the charge framed on the accused is as follows:
Charge Gist of Charge
Section 7 of Public Servant taking gratification other than
Prevention of legal remuneration in respect of an official act.
Corruption Act,
1988.
Section and 13(1) (a) Accused receiving a sum of Rs.2,000/- as bribe & (d) read with for giving the cheque.
13(2) of Prevention of Corruption Act, 1988.
3.For the sake of convenience, the parties are referred to as per the rank mentioned in the trial Court. The brief facts of the prosecution case are as follows:
(i) Both the accused were working as Sub Inspector of Police in Thirumangalam Taluk Police Station, Madurai District. Originally, the defacto complainant, her husband and two others were arrayed as accused in crime No.3 of 2003, which was registered on 09.01.2003. On 29.01.2003 at about 10.00 p.m. at Thirumangalam Taluk Police Station, defacto complainant/P.W.2 went to the police station and informed the accused that her husband is in no way related to the occurrence and asked why case has been registered against him. For which, both the accused demanded a sum of Rs.2,000/- as http://www.judis.nic.in gratification other than legal remuneration from the defacto complainant 3 Tmt.V.Rajarani, who they knew of having transacted in connection with their official functions as a motive or reward to do an official act in the exercise of their official function to delete the name of the complainant's husband from the final report in connection with crime No.3 of 2003 of Thirumangalam Taluk Police Station. On 31.01.2003, at about 08.30 a.m., the defacto complainant along with one Jeyapandiammal met both the accused and the accused said to have reiterated the earlier demand of Rs.2,000/-. Since the defacto complainant/P.W.2 has decided not to give the amount as demanded by the accused, she approached one Andavar, who wrote the complaint Ex.P2 and P.W.2 put his signature Ex.P3 in the complaint. Thereafter, P.W.2 went to the Vigilance and Anti-Corruption Office, Madurai at about 1.00 p.m. and gave the complaint to P.W.10, Inspector of Police.
(ii). P.W.10 - the Inspector of Police received the complaint given by P.W.2 on 31.01.2003 at 13.00 hours and after verified the genuineness of the complainant and the reputation of the defacto complainant and the accused were also discretely enquired and after getting permission from the Superintendent of Police, at about 16.00 hours, he registered a case in crime No.2 of 2003 for the offence under Section 7 of Prevention of Corruption Act, 1988.
(iii) P.W.10, the Trap Laying Officer, thereafter contacted over phone the Madurai Assistant Divisional Engineer, Highways and the Regional Joint Director, Animal Husbandry and Deputy Chief Engineer, Public Works http://www.judis.nic.in Department to send witnesses for the purpose of conducting a trap. 4 Accordingly, P.W.3 Bangaru Mythili and one Mohanram and Ushabhai were appeared in the Vigilance and Anti-Corruption Office at Madurai. P.W.10 introduced P.W.2 to P.W.3 and another witnesses and explained about the complaint given by P.W.2 and thereafter demonstrated the phenolphthalein test. P.W.10 further instructed P.W.2 to give the bribe amount after the demand made by the accused and instructed P.W.3, if the accused received the money, to come out and give the signal by masking her head with the front portion of the saree. The said proceedings of the Vigilance and Anti- Corruption Office were recorded under the mahazar Ex.P4.
(iv) At 20.20 p.m. the raiding party arrived the Thirumangalam Taluk Police Station along with P.W.2 and other trap witnesses. P.W.10 instructed P.W.2 to go along with P.W.3 to the Police Station. The raiding party was waiting nearby there for the signal of P.W.3.
(v).P.W.2 and P.W.3 went inside the Police Station, where, both the accused were sitting in nearby seats. After some conversation, A1 accused asked P.W.2 as to whether she brought the amount as demanded by him. P.W.2 told that she brought the money Rs.2,000/- and after conversation between both the accused, A1 told that she has to make further expenditure also, for which, he replied apart from Rs.2,000/- he demanded, further Rs. 2,000/- to be made as expenditure and the same to be brought by her husband. Thereafter, P.W.2 took out the powder coated currency notes and gave the amount to the 1st accused, which was received by the accused and http://www.judis.nic.in after counting the same, he gave the amount to the 2nd accused, for which, 2nd 5 accused told 1st accused to keep the money himself. Accordingly, the 1st accused kept the money behind the 2001 year diary, M.O.5. P.W.3 came out of the Station and masked her head with front portion of her saree and made signal. Immediately, P.W.10 along with his team entered into the police station and enquired P.Ws.2 and 3. P.W.2 identified the accused and the place where the amount kept. P.W.10 contacted Deputy Superintendent of Police, Thirumangalam over phone and directed to come over to the Station. In his presence, P.W.10 prepared sodium carbonate powder solution and requested the 1st accused to dip his hand fingers and the solution turned pink in colour, which were marked as M.Os.3 and 4. Likewise, he conducted the phenolphthalein test on the 2nd accused and the solutions were marked as M.Os.5 and 6. P.W.10 enquired about the bribe amount and the accused and handed over the same to P.W.10, which was marked as M.O.1 and 2 series. P.W.10 compared the same with the mahazar prepared at the office under Ex.P.4. Thereafter, P.W.10 searched the office, where, the accused produced the documents with regard to the crime particulars of crime No.3 and 4 of 2003, which were marked as Exs.P.12 and 13 respectively. Duty Roaster is Ex.P7, Rough Duty Register is Ex.P7 and P.W.10 recovered the same under Ex.P8. P.W.10 prepared rough sketch Ex.P9. He arrested the accused and them them for remand.
(vii) P.W.10, the Inspector of Police took up further investigation in this case. He sent the case properties to the Court, from where, the case properties were sent for chemical analysis. He enquired the sitnesses and http://www.judis.nic.in recorded their statements. After examining the remaining witnesses and after 6 completion of investigation, P.W.11 filed the charge sheet in this case against the accused for the offence under Sections 7, (13)(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988.
4.To substantiate the charges against the accused in trial, on the side of the prosecution, P.Ws.1 to 13 were examined and Exs.P.1 to 13 were marked and M.Os.1 to 6 were produced. When the accused were questioned about the incriminating circumstances and evidence, they denied the charges levelled against him. In order to disprove the case of prosecution, on the side of the the accused, no one was examined and no document was marked.
5.Upon consideration of the oral and documentary evidence, though found the 2nd accused not guilty for the charges levelled against him and acquitted him, found guilty of the 1st accused that the 1st accused being a public servant has obtained illegal gratification other than legal remuneration for deleting the name of the husband of the defacto complainant from the case in crime No.3 of 2003 and further held that the 1st accused by corrupt and illegal means and by abusing his official position obtained illegal gratification from the defacto complainant other than legal remuneration for himself and thereby he was committed criminal misconduct. On the above findings, the learned Special Judge convicted the 1st accused/appellant and sentenced him as stated supra. Aggrieved over the above said conviction, the 1st accused/appellant has preferred the present appeal. http://www.judis.nic.in 7
6.The learned counsel appearing for the appellant would submit that P.W.2, the defacto complainant is a political worker belonging to communist party and she has several cases pending against her. She is also a person, who used to regularly visit police station for one reason and other. In this case, on 09.01.2003, a case in crime No.3 of 2003 came to be registered against P.W.2 and others on the complaint one Vasumalai party, which is marked as Ex.P12. Another case in crime No.4 of 2003 came to be registered against Vasumalai party on the complaint of one Irulayee, which is marked as Ex.P13. Hence, there was a case and counter case against them. Thereafter, P.W.2, who was injured in that occurrence was taken to hospital and both the parties were remanded and later, P.W.2 came out of bail on 14.01.2003. Thereafter, on 29.01.2003, a constable attached to the Thirumangalam Taluk Police Station, where the appellant/accused came their house, where, P.W.2 was called for enquiry and at that time, P.W.2 had represented that why her husband, who was not present in the scene of occurrence, who is employed as Teacher in Kallar Elementary School, has been falsely implicated in this case, for which, they demanded Rs.2,000/- to delete her husband name from the charge sheet. It was also stated unless the bribe amount of Rs.2,000/- not paid, her husband would be implicated in this case. Thereafter, on 30.01.2003, her husband obtained anticipatory bail and on 31.01.2003, when P.W.2 gone to police station, again the demand was reiterated. Not willing to give the bribe amount, P.W.2 had taken the service of P.W.6, who was working in the communist office to write the complaint Ex.P2. In the complaint, the name of both the appellant as well as another accused http://www.judis.nic.in Chandran was found.
8
7.He further submitted that when P.W.2 appeared before the police station, the accused were not in the police station and five minutes thereafter only, they entered into the police station. It also the case of the appellant that M.O.1 series amount was recovered from the diary. During the absence of the appellant, the money had been planted in the diary by P.W.2 defacto complainant. Thereafter, the trap team entered into the police station and forced the appellant to handle the money and hence, the phenolphthalein test proved positive. P.W.13 is the relative of P.W.2. P.W.13 is the relative of P.W. 2, who said to have accompanied P.W.2 on 30.01.2003 had not supported the case of prosecution. Hence, the demand, which is sine quo non had not been proved in this case. With regard to motive, it is admitted that there have been several cases pending against P.W.2 and hence, there are other reasons to implicate the appellant. P.W.3 accompanying witness is an official witness, who had given parrot version of the entire sequence as an obliging witness. The Trial Court on the same set of facts acquitted the 2nd accused from the charges, but had acquitted the appellant, despite the name of A2 has found in Ex.P2 complaint. P.W.1, the sanction authority admits that the appellant was not available in the police station from the morning of 29.01.2003 to 06.00 a.m. on 30.01.2003 and hence, the demand as stated by P.W.2 on 29.01.2003 is false.
8.He further submitted that P.W.5, who is the Scientific Officer of the forensic department, admits that if phenolphthalein powder smeared articles contact diary or any articles, the person, who handles the same would also http://www.judis.nic.in proved positive in the phenolphthalein test. P.W.6 admits that there are 9 several cases pending against the family members of P.W.2 and 107 Cr.P.C. proceedings have been initiated by the revenue authorities against them. He further submitted that in this case, demand has not been proved. P.W.2 is a motivated witness, who has got all the reasons to implicate the appellant. In view of the same, he prayed for acquittal of the appellant.
9.The learned Additional Public Prosecutor appearing for the State would submit that though it has been suggested to P.W.2 as well as P.W.16 that there was several cases pending against P.W.2 and there was motive, no document has been produced to prove the same. Recovery of tainted notes were made at the instance of the appellant. Further, A2 in this case has not handled the tainted notes and phenolphthalein test conducted on him proved to be negative. Hence, the trial Court, on appreciation of the evidence, held that A2 has not handled the tainted currency and no recovery has been made from him, acquitted him. The same benefit could not be given in favour of the appellant. The reason for demand had been proved by the evidence of P.W.2 and P.W.2. P.W.2 had categorically stated about the demand and the receipt of tainted money by the appellant and after counting the money, he placed the same in the diary, which is corroborated by P.W.3. Not only on 29.01.2003, the demand had been continued thereafter on 30.01.2003 and on 31.01.2003. It has been clearly spoken to by P.W.2 as well as by P.W.3. Recovery of the tainted notes have been proved by the evidence of P.Ws.2 to 4 and from Ex.P8, recovery mahazer and the tainted notes were tallied with the recovery made in the entrust mahazer Ex.P4. Thereafter, by the phenolphthalein test http://www.judis.nic.in conducted on him and the recovery recorded in the recovery mahazer. P.W.4, 10 Deputy Superintendent of Police, Thirumangalam was summoned to be a witness to the recovery proceedings for the purpose to prove the fact of neutral in conducting the proceedings.
10.The learned Additional Public Prosecutor would further submit that the appellant had not dislodged the statutory presumption under Section 20 of P.C.Act either by oral or documentary evidence and no reason has been given how the tainted money came in possession of the appellant. Thus, the prosecution had proved the case beyond reasonable doubt that the appellant made demand and received the tainted money, which was recovered from the appellant and the trial Court rightly found the appellant guilty for the offence stated supra. In support of his contention, he relied upon the following decision of the Hon'ble Supreme Court of India.
(i)(2015) 7 Supreme Court Cases 283 – State of A.P. V. P.Venkateshwarlu, wherein, the Apex Court has held in para 11 as follows:
“11.We are aware of the position in law, as laid down in cases involving the relevant provisions under the Prevention of Corruption Act, that mere recovery of the tainted amount is not a sine qua non for holding a person guilty under Sections 7, 11 and 13 of the Act. This Court has observed in Narendra Champaklal Trivedi V. State of Gujarat, that there has to be evidence adduced by the prosecution that bribe was demanded or amount paid voluntarily as bribe. The demand and acceptance of the amount as illegal gratification is a sine qua http://www.judis.nic.in non for constituting as offence under the Prevention of 11 Corruption Act. The prosecution is duty bound to establish that there was illegal offer of bribe and acceptance thereof and it has to be founded on facts. The same point of law has been reiterated by this Court in State of Punjab V. Madan Mohan Lal Verma, In the present case the factum of demand and acceptance has been proved by the recovery of the tainted amount and the factum of there being a demand has also been stated. The essential ingredient of demand and acceptance has been proved by the prosecution based on the factum of the case. It has been witnessed by the key eyewitnesses and their testimonies have also been corroborated by other material witnesses. The offence under Section 7 of the PC Act has been confirmed by the unchallenged recovery of the tainted amount.
Thus, it is our obligation to raise the presumption mandated by Section 20 of the PC Act. It is for the respondent-accused to rebut the presumption, by adducing direct or circumstantial evidence, that the money recovered was not a reward or motive as mentioned under Section 7of the PC Act.”
(ii)In Crl.A.No.34 of 2002(A) – Cyril Joseph Vs. State of Kerala, the Kerala High Court has held in para 15 as follows:
“15.The next point to be considered is whether the evidence referred to in the foregoing is sufficient to hold that the prosecution has succeeded in establishing the offence http://www.judis.nic.in charged against the accused. On the other hand, the question 12 is whether the presumption under Sec. 20 of the Prevention of Corruption Act, 1988 is available for the prosecution. Counsel for the accused argued that P.W.1/defacto complainant turned hostile and stated that the accused never demanded any bribe, that there is no evidence of demand of the bribe by the accused and that therefore the presumption under Sec.20 of the Prevention of Corruption Act cannot be raised in this case. I am unable to agree. In M.Narasinga Rao V. State of Andhra Pradesh (AIR 2001 SC 318) the Apex Court has held that once the prosecution has established that the gratification is paid and the accused has accepted the same, the presumption under Sec. 20 of the Prevention of Corruption Act can be raised. In Narasinga Rao's case, the defacto complai9nant and an independent witness turned hostile and did not support the prosecution. Even the Apex Court has raised a presumption under Sec.20 of the Prevention of Corruption Act, 1988 and observed that the condition for drawing a legal presumption under Sec.20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In the present case I have found that the prosecution has succeeded in proving that the accused has accepted the bribe. That being so, the contention of the accused that as P.W.1, the defacto complainant did not support the prosecution, the presumption under Sec. 20 of the Prevention of Corruption Act http://www.judis.nic.in cannot be raised, has only to be rejected.” 13
11.Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and perused the materials available on records.
12.P.W.1 is the sanction authority, who accorded sanction for prosecution. There is nothing to say that the sanction is improper. P.W.2 is the defacto complainant, who had clearly spoken about the demand by the appellant, phenolphthalein test and handing over the tainted money, which was recovered at the instance of the appellant. The appellant's hand wash proved positive. P.W.3, accompanying witness had clearly spoken about the demand made in her presence and handing over the bribe money by P.W.2 to the appellant and thereafter, the appellant received, counted the same and placed it in the diary. P.W.4, Deputy Superintendent of Police was summoned to be a witness for the recovery, in the presence of him, recovery proceedings have been conducted and the recovery has been clearly proved. Though a feeble attempt was made to show that P.W.2 was enimically disposed against the appellant, there is no material produced by the appellant to substantiate the same. On the other hand, by the cogent evidence of P.Ws.2 to 4 and 10, the demand, acceptance and recovery had been clearly proved by the prosecution. The trial Court on perusal of both the oral and documentary evidence has given a detailed finding, which need not be interfered with.
13.In view of the same, this criminal appeal is dismissed and the http://www.judis.nic.in conviction and sentence passed by the Special Court for trial of Prevention of 14 Corruption Act Cases, Madurai in Spl.Case No.11 of 2011 dated 17.04.2015 are hereby confirmed. The trial Court is directed to secure the appellant and commit him to undergo the remaining period of sentence.
06.01.2020
Index : Yes/No
Internet : Yes/No
Arul
To
1.The Special Judge for Trial of Prevention of Corruption Act Cases, Madurai.
2.The The Inspector of Police, Vigilance and Anti Corruption, Madurai Detachment.
3. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.
4.The Record Keeper, Criminal Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 15 M.NIRMAL KUMAR, J.
Arul order made in Criminal Appeal(MD) No.129 of 2015 http://www.judis.nic.in 06.01.2020