Madras High Court
Thangavel vs State Rep. By on 10 February, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:10.02.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.371 of 2007
Thangavel .. Appellant/Accused
VS.
State rep. by
Deputy Superintendent of Police
Vigilance and Anti Corruption
Salem District.
Crime No.2/2001. .. Respondent/Complainant
Prayer:Criminal Appeal filed under Section 374 CrPC. against the judgment of conviction and sentence, dated 04.04.2007 made in Spl.C.C.No.10 of 2002 on the file of the Chief Judicial Magistrate's Court, Namakkal.
For Appellant : Mr.C.D.Johnson
For Respondent : Mr.R.Prathap Kumar
Government Advocate (Crl.side)
J U D G M E N T
This Criminal Appeal arises out of the Judgment of conviction and sentence, dated 04.04.2007, made in Spl.C.C.No.10 of 2002 on the file of the Chief Judicial Magistrate's Court, Namakkal, whereby the appellant/accused was convicted for an offence under Section 7 of Prevention of Corruption Act and sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.2,000/- in default in payment, to undergo three months rigorous imprisonment and for an offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.2,000/- in default in payment, to undergo three months rigorous imprisonment.
2.The respondent is a Deputy Superintendent of Police, Vigilance and Anti-corruption, Salem District, has filed a final report stating that on 17.02.1999, at 9.00 a.m., while appellant/Thangavelu was working as Junior Engineer at Pallipalayam Division, T.N.E.B, one P.W.2-Balasubramaniam has approached him for obtaining service connection for a well in his land comprised in S.No.272/13 and at the time, the appellant herein had demanded Rs.2,000/- as bribe. As P.W.2 not willing to give bribe to the appellant, he lodged a complaint under Ex.P2 before P.W.9. So a trap was arranged on 18.02.1999 and the appellant was arrested by P.W.10-Deputy Superintendent of Police, at about 13.00 hours, at the office of the appellant, for getting bribe from P.W.2 for giving service connection. P.W.10 filed a charge sheet against the appellant/accused for the offences under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act.
3.The case of the prosecution is that P.W.2- Balasubramaniam is an Owner of the land comprised in S.No.272/13 at Vediyarasampalayam Village, in order to obtain electricity service connection to his well, gave an application on 08.12.1987. But he received communication only on 16.02.1999. Immediately, he approached the appellant/accused on 17.02.1999. But the appellant demanded Rs.2,000/- as bribe from him for giving service connection. Therefore, P.W.2 lodged a complaint Ex.P2 before P.W.9-Inspector of Police, Vigilance and Anti-corruption, Salem. P.W.9 after obtaining permission from Regional Superintendent of Police, Coimbatore (V&AC), registered a case in Crime No.3/AC/99 under Section 7 of Prevention of Corruption Act, 1988 and prepared Ex.P13 F.I.R. and dispatched the same to the learned Chief Judicial Magistrate-cum-Special Judge, Salem. Then he sent a communication to Salem District Educational Officer as well as the Deputy Director of Sericulture Department, requesting them to send either Superintendent or Assistant to act as a witness in the trap proceedings on 18.02.1999. Thereafter, he recorded the statement of P.W.2. On 18.02.1999, at 6.30 a.m., P.W.2 and witnesses P.W.3-Shiek Kadar and P.W.4-Manickam were appeared in the office of Vigilance and Anti-corruption, Salem and P.W.3 & P.W.4 were introduced to P.W.2 by P.W.9 and intimated about the fact in respect of trap proceedings. Then, P.W.9 enquired P.W.2 in respect of the tainted currency notes and he handed over the same and P.W.9 prepared an entrustment mahazar Ex.P3. Then, P.W.9 demonstrated the phenolphthalein test in the presence of the independent witnesses P.W.3 and P.W.4 and the tainted notes were given to P.W.2 and P.W.9 informed him that the above amount should be given to the appellant on demand. P.W.2 was told that after giving the bribe amount to the appellant on demand, he should give a signal.
4.On 18.02.1999, P.W.9 arranged a trap and arrived at the office of the appellant. On the same day, at about 10.15 a.m., the appellant demanded the bribe amount of Rs.2,000/- and P.W.2 handed over the same to the appellant and he gave pre-arranged signal to the trap team immediately. Thereafter, P.W.9 introduced himself and conducted sodium carbonate test on the hands of the appellant in the presence of independent witnesses P.W.3 and P.W.4. and there was a colour change in the solutions. The above solutions were preserved in separate bottles and sealed under M.O.3 and M.O.4. Then the appellant handed over the tainted currency notes of Rs.2,000/- to P.W.9 and the serial numbers were verified with the entrustment mahazar Ex.P3 and they tallied. Then P.W.9 examined P.W.5-Commercial Assistant, T.N.E.B. and obtained Attendance Register Ex.P8 and examined P.W.6-Assistant Executive Engineer and obtained Ex.P9-Office file of P.W.2. Then he examined P.W.7-Rangasamy, attestor of Ex.P4-Agreement between TNEB and P.W.2. Then, P.W.9 drew rough sketch Ex.P6 and prepared Ex.P5-Mahazar about the occurrence. Then, P.W.10-Ashokan, Deputy Superintendent of Police taken up the matter for further investigation.
5.P.W.10 sent requisition to concerned Magistrate for searching the house of the appellant/accused and after obtaining permission, he searched the house of the appellant between 2.45 p.m. and 3.30 p.m., on 18.02.1999. But nothing has been seized from the house of the appellant. He arrested the accused and sent for judicial custody. Then he sent a requisition Ex.P11 to the concerned Magistrate for chemical analysis of the material objects. On receipt of Ex.P11, the concerned Magistrate sent the material objects for chemical analysis to the Tamil Nadu Forensic Science Lab, which was marked as Ex.P10 and the Chemical Analysis Report was marked as Ex.P12. Thereafter, P.W.10 examined other witnesses and after completing his investigation, he filed the charge sheet after obtaining sanction order Ex.P1 from P.W.1-K.Palaniappan, who was working as Superintendent Engineer, T.N.E.B.
6.The learned Chief Judicial Magistrate after following the procedure, framed necessary charges. The accused pleaded not guilty. The learned Magistrate examined the witnesses P.W.1 to P.W.10 and marked the documents Exs.P1 to P13 and material objects M.O.1 to M.O.6 and placed the incriminating evidence before the Accused and the accused denied the same and on the side of the defence, D.W.1 and D.W.2 were examined and Ex.D1 was marked and considering the oral and documentary evidence, found the accused guilty for the offences under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act and sentenced as stated above.
7.Challenging the judgment of conviction and sentence, Mr.C.D.Johnson, learned counsel appearing for the appellant submitted that during the pendency of the appeal, the appellant died, so his wife step into shoes of her husband and adjudicating the appeal.
8.Learned counsel for the appellant submitted that as per Section 7 of P.C. Act, three ingredients have to be proved (i.e.) demanding the amount, acceptance and recovery. As per the prosecution, on 17.02.1999, at 9.30 a.m., P.W.2 met the appellant and at the time, the appellant demanded Rs.2,000/- as bribe. But the above contention is false, because on 17.02.1999, between 8.45 a.m. and 1.30 p.m., the appellant attended the regular monthly meeting conducted by his superior/P.W.6. So, there is no chance for P.W.2 to meet the accused and the accused demanded bribe from P.W.2 on that day. He further submitted that the acceptance of bribe by the appellant has not been proved, because when he was away from his office room, without his knowledge, the amount was kept into his table drawer, due to enmity between the appellant and P.W.2. It is further submitted that P.W.2, who is the owner of service connection bearing No.473, which was raided by Anti Theft Squad, TNEB and they issued a show cause notice to P.W.2 and after receiving his explanation, they directed P.W.2 to pay the fine amount of Rs.2,500/- to the appellant, who was the Recovery Officer. But the above factum has not been considered by the learned Chief Judicial Magistrate. Hence, he prayed for acquittal of the appellant/accused. To substantiate his arguments, he relied upon the following decisions:
(1)(2011) 4 MLJ (crl) 34 (M.Subramani v. State represented by Inspector of Police, SPE/CBI/ACB/Chennai) (2)(2007) 1 MLJ (crl) 430 (Ramakrishnan v. State represented by Inspector of Police, D & VAC, Chennai) (3)AIR 2002 SC 486 (Punjabrao v. State of Maharashtra) (4)2007 Crl (L.J.) 4689 (Ganapathi Sanya Naik v. State of Karnataka)
9.Resisting the same, Mr.R.Prathap Kumar, learned Government Advocate (Crl. Side) filed written arguments and submitted that evidence of P.W.2 has proved that the demand made by the appellant on 17.02.1999 and that has been mentioned in page-8 to 10 of his oral evidence. It was corroborated by the trap witness P.W.3 and recovery of the amount was also proved by official witness P.W.4. He further submitted that there was no evidence for enmity between the appellant/accused and P.W.2 and the investigation has been conducted in a proper manner and that the prosecution witnesses have clearly proved the guilt of the accused beyond reasonable doubt. Further, the motive is not immaterial, when direct eye witness is available. To substantiate his arguments, he relied upon the following decisions:
(1) The Madras Law Journal, Report (Crl.) (Yusuf Musa Chauhan and others v. State of Maharashtra) (2) 2001 Cri.L.J.175 (Madhukar Bhaskarrao Joshi v. State of Maharashtra) (3) 2011 Cri.L.J.969 (Narayana v. State of Karnataka) (4)(2007) 1 MLJ (Crl.) 351 (State represented by Inspector of Police, Pudukottai, Tamil Nadu v. A.Parthiban) (5)Judgment of Apex Court-Appeal arising out of SLP (Crl.) No.6209 of 2008 (V.Kannan v. State represented by the Inspector of Police) (6)2001 Crl.L.J. 515 (M.Narsinga Rao v. State of Andhra Pradesh)
10.I have carefully considered the rival contentions put forward by either side and also thoroughly scanned through the entire evidence available on record and perused the impugned judgment of conviction.
11.Admittedly, the deceased Thangavelu/Appellant was a Commercial Tariff Officer, TNEB, Office of Assistant Executive Engineer Electrical, O & M, Pallipalayam, from 02.07.1997 to 18.02.1999. There is no quarrel over that the appellant was a public servant. The learned counsel for the appellant did not question about the competency of P.W.1 and validity of sanction order Ex.P1. Hence, I am of the view, the sanction order Ex.P1 has been accorded in accordance with law by P.W.1.
12.The first and foremost argument advanced by the learned counsel for the appellant that there is no demand of bribe in the absence of demand the mere proof of receipt of money by the accused is not sufficient to prove the guilt of the accused. Now this Court has to decide whether there was a demand made by the appellant? Before going to the fact, it is appropriate to consider the following decisions relied upon by the learned counsel for the appellant:
(i) (2011) 4 MLJ (crl) 34 (M.Subramani v. State represented by Inspector of Police, SPE/CBI/ACB/Chennai), in which, it is held as follows:
"In absence of a proof of demand, presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988, cannot be raised against accused."
(ii) (2007) 1 MLJ (crl) 430 (Ramakrishnan v. State represented by Inspector of Police, D & VAC, Chennai) in para-9, it is held as follows:
"9. .. .. Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of accused. If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, accused would be entitled to acquittal. .. .. "
(iii) 2007 Crl (L.J.) 4689 (Ganapathi Sanya Naik v. State of Karnataka), in para-8, it is held as follows:
"8. .. .. The Court had observed that the plea of the defence at the very initial stage was that PW-6 had serious animosity towards the appellant and that the currency notes had been put on the table by the former was a plausible explanation. It is in the evidence that the currency notes had not been touched by the appellant or recovered from his person. It is also the prosecution case that the relevant documents had been handed over to Nagarja immediately after the money had been put on the table. The argument therefore that there was no occasion to make a demand for any bribe is also plausible. We are thus of the opinion that in an appeal against acquittal where the High Court's interference is in a manner circumscribed, there was no justification in upsetting the judgment of the trial court. .. "
13. Mr.R.Prathap Kumar, learned Government Advocate (Crl. Side), relied upon the following decisions:
(i) 2001 Cri.L.J.175 (Madhukar Bhaskarrao Joshi v. State of Maharashtra) in para-12 and 14, it reads as follows:
"12. .. .. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. .. .. Presumption can be drawn, if public servant is found in possession of currency notes smeared with phenolphthalein and the prosecution does not have further duty to prove beyond the fact that prosecution witness had paid the demanded money to the appellant, public servant."
"14. We, therefore, repel the contention of the learned counsel that prosecution has a further duty to prove beyond the fact that PW-1 had paid the demanded money to the appellant for enabling it to lay the hand on the legal presumption employed in the Prevention of Corruption Act. We may point out that the defence did not even attempt to prove that the amount received by the appellant was not accepted as a reward or motive for the official act done by him, except the ipse dixit of the appellant, that too made at the fag end of the trial when he put in a written statement of his defence. Hence no exception can be taken to the conviction passed by the trial court which was concurred by the High Court in respect of the offence under Section 5(2) of the Act of 1947."
(ii) (2007) 1 MLJ (Crl.) 351 (State represented by Inspector of Police, Pudukottai, Tamil Nadu v. A.Parthiban) in para-8, it is held as follows:
"8.Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act... .. "
(iii) 2001 Crl.L.J. 515 (M.Narsinga Rao v. State of Andhra Pradesh), in para-18 and 19, it reads as follows:
"18. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. .. .."
19. Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. "That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Court to draw a factual presumption that appellant had willingly received the currency notes."
14.Considering the above citations, this Court has to decide whether there was a demand made by the appellant/accused?. Before going to the fact, I am inclined to take up the defence (i.e.) enmity advanced by the learned counsel for the appellant. Ex.D1 reveals that P.W.2 is an owner of service connection bearing No.473 and during the inspection, he has violated the terms and conditions of supply of electricity and it was noticed by the Officer. It was mentioned that "5.0 HP unauthorised load utilised against the total connected load of 12.5 HP and sanction load is 7.5 HP." Further, it was specifically mentioned in Ex.D1, a show cause notice was issued and a compensation was charged for a sum of Rs.2,500/- and it was directed P.W.2 to pay the same in five installments as Rs.500/- each from 22.02.1999 to 22.6.1999. Ex.D1 has been issued on 02.02.1999.
15.At this juncture, it is appropriate to consider the evidence of P.W.2-Balasubramaniam. In his evidence, he stated that on 08.12.1987, he applied for new service connection to his well in the land situated in S.No.272/13. He placed all the revenue records on 04.01.1999. On 16.02.1999, he received a communication. On 17.02.1999, at 9.30 a.m., he met the appellant/accused, who was working as Junior Engineer at TNEB, Pallipalayam, for obtaining service connection. At the time, appellant demanded Rs.2,000/- as bribe from P.W.2. He further stated that since he was not willing to pay that bribe amount, he gone to Vigilance and Anti-corruption Office at Salem, met P.W.9-Periasamy, Inspector of Police, Vigilance and Anti-corruption and lodged a complaint Ex.P2. P.W.2, in his cross-examination, he fairly conceded that on 30.10.1998, Anti Theft Squad was raided his motor service connection bearing No.473. Since P.W.2 was having 12.5 horse power motor instead of 7.5 horse power motor, a show cause notice, dated 26.11.1999, was issued to P.W.2 to give explanation for the same. On 04.12.1998, P.W.2 sent a letter stating that he has cleared all the defects. Then he received an assessment notice on 12.02.1999. He gone to the office of the appellant, wherein he was directed to pay Rs.2,500/- as penalty for that motor connection. But P.W.2 refused to pay that amount. On 17.02.1999, P.W.2 again met the appellant in his office for new service connection in S.No.272/13 at Vediyarasampalayam Village.
16.In such circumstances, this Court has to decide that whether the appellant was present in his office on 17.02.1999, at 9.30 a.m.? As per the evidence of P.W.5-Subramani, who was working as Assistant in the office of TNEB, Pallipalayam, an Assistant Executive Engineer, Palanisamy, who was examined as P.W.6, convened a periodical meeting and the appellant was attended the meeting along with P.W.5. The said meeting was commenced on 17.02.1999, at 8.45 a.m. and concluded at 1.30 p.m. So considering the evidence of P.W.5, it would clearly prove that on 17.02.1999, the appellant was not present in his office. So the statement of P.W.2 that the appellant demanded Rs.2,000/- at about 9.30 a.m. on 17.02.1999 in his office, cannot be true.
17.At this juncture, it is appropriate to consider Ex.P9-Application given by P.W.2. Ex.P9 would reveal that the appellant had signed the papers and estimated on 10.02.1999 and it was sanctioned by A.E.E. (Operation and Maintenance) on 15.02.1999. Admittedly, the appellant had prepared all the papers much before 17.02.1999 (i.e.) on 10.02.1999. But it was approved by the higher official only on 15.02.1999. In such circumstances, it is painful to accept that the appellant demanded a bribe on 17.02.1999 for giving service connection. As per the decision reported in 2008 (1) TNLR 224 (S.D.Amalraj v. State through Inspector of Police), when the accused has prepared all the papers relating to P.W.2 much before 17.02.1999 (i.e.) on 10.02.1999, nothing remains to be done thereafter and therefore, the demand and payment of bribe after completion of the official favour is a serious lacuna in the prosecution case. Moreover, as already discussed as per the evidence of P.W.5 and P.W.6, on the date of 17.02.1999, the appellant was not attended the office, but attended the monthly meeting held at A.E.E. Office, near Seshayee Mill. Moreover, in Ex.P8-Attendance Register, the appellant's name was not found place. I do not know as to why Ex.P8-Attendance Register was not filed before the trial Court. The appellant was attended the meeting on 17.02.1999, from 8.45 a.m. to 1.30 p.m. So the prosecution has miserably failed to prove that on 17.02.1999, the appellant was present in his office and demanded Rs.2,000/- as bribe from P.W.2 for obtaining service connection. Hence, it is a concocted story. As per Ex.P9, P.W.6 gave sanction on 15.02.1999 and the papers in respect of the service connection have been prepared by the appellant on 10.02.1999 much prior to that incident. So the argument advanced by the learned Government Advocate (Crl. Side) that evidence of P.W.2 in page 8 to 10 of his oral evidence has clearly proved P.W.2 met the appellant on 17.02.1999, at 9.30 a.m., does not merit acceptance.
18.As per the evidence of P.W.2, he refused to pay the compensation amount as imposed under Ex.D1 on 12.02.1999 in respect of irregularity committed by him regarding the service connection bearing No.473. So there was an enmity between the appellant/accused and P.W.2. Ex.P4-agreement has been executed only on 18.02.1999 and P.W.3 was one of the attestors of the agreement, who was alleged to be the trap witness. While considering the evidence of P.W.2, it is not trustworthy and not reliable.
19.As per the evidence of P.W.6, accused alone is responsible for recovering the fine amount. P.W.6 in his cross-examination, he stated as follows:
" .. .. kpd; jpUl;L jLg;g[ gilapd; mjpfhhpfs; 30/10/98y; kjpak; 3/15 kzpf;F rh;tp!; 473I Ma;t[ bra;J ,nj kDjhuh; ghyRg;ukzpak; kpd;rhuk; jpUoajhf v';fs; nkyjpfhhpfSf;F. hpg;nghh;l; bfhLj;jhh;/ ehd; kDjhuh; tp/nf/ghyRg;ukzpaj;jpw;F rh;tP!; vz;/473 fsthoaJ rk;ge;jg;gl;l te;j mwpf;ifia Mjuhk;gLj;jp 26/11/98y; xU nrh?fh!; nehl;O!; mDg;gpndd;/ ,Wjpahf xU mguhjk; eph;zapj;J xU cj;jput[ tH';fg;gl;lJ/ me;j cj;jputpd; mog;gilapy; cjtp bghwpahsh;-j';fntY mguhj bjhif tNypf;f ntz;Lk; vd;w flik Vw;gl;lJ/ me;j cj;jput[ 2/2/99k; njjp gpwg;gpf;fg;gl;lJ/ mg;go eph;zapf;fg;gl;l bjhif U;/2500-?I Ie;J jtizfshf Kjy; jtiz 22/2/99k; njjp Kjy; gpd; 4 khj';fspy; tNypf;f ntz;Lk; vd cj;jput[ gpwg;gpf;fg;gl;lJ/ // // @
20.Now this Court has to consider whether the evidence of P.W.3 is reliable? It is true, after examination, P.W.3 was treated as hostile. At this juncture, it is appropriate to consider the decision relied upon by Mr.R.Prathap Kumar, learned Government Advocate (Crl. Side), reported in 2011 Cri.L.J.969 (Narayana v. State of Karnataka), in which, it was stated that "Merely because independent witnesses to trap had turned hostile, accused cannot be acquitted. " But the above citation is not applicable. This Court has already came to the conclusion that the evidence of P.W.2 is not trustworthy and not reliable. As per the decision made in 1992 Supp(1)SCC 428, (Som Prakash v. State of Punjab), the witness forming part of the raiding party found to be not independent witness. In such circumstances, there is some convincing and corroborating evidence must be necessary to prove the evidence of P.W.3. In his cross-examination, he stated that he does not know the parties, who were present inside the office, when himself and P.W.2 were entered into the office of the appellant. Then, P.W.2 alone went to the room of the appellant and returned back and thereafter, he took P.W.3 to the room of the appellant. None were present in the room of the appellant, except the appellant. Then, appellant asked one Assistant to get the work order file relating to P.W.2. But P.W.3 does not know whether the appellant attended the file or not? As per the dictum laid down in 1992 Supp(1)SCC 428, (as cited supra), the witness forming part of the raiding party is not an independent witness. In such circumstances, I am of the view, evidence of P.W.3 is not trustworthy and not reliable.
21.As per the statement of the accused in questioning under Section 313(1)(A) Cr.P.C., for question No.16, he answered that without his knowledge, P.W.2 kept the amount in his table drawer. He does not know about the amount in the table drawer.
22.In the instant case, there was no reference to the said main incriminating material, which is the foundation of the prosecution case and that material has not been brought to the notice of the accused, which vitiates the proceedings and cause serious prejudice to the accused. In the present case, admittedly, while the accused was examined under Section 313 Cr.P.C. failure to put to the accused specifically, distinctly and separately such material circumstances appearing in evidence against the accused amounts to a serious irregularity and omission to question the accused on important incriminating evidence only lead to the exclusion of that evidence from consideration.
23.As per the decision reported in State of Tamil Nadu v. Krishnan and another (2002) 9 SCC 521, the Hon'ble Apex Court held as follows:
"the version of planting the amount by the prosecution witness is probabilised coupled with the fact that the prosecution version of the demand of bribe and the circumstances under which the said demand was made is suspect."
24. As per the decision of the Apex Court in 2011(6) SCALE (State of U.P. v. Mohd Iqram and another), it is held as follows:
"12. .. .. The Court cannot place reliance on incriminating material against the accused, unless it is put to him during his examination under Section 313 Cr.P.C. Thus, the High Court committed an error by taking into consideration the inadmissible evidence for the purpose of deciding the criminal appeals and holding the person guilty who had already been acquitted by the trial court... ..
13.No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration."
The provisions in Section 313, therefore, make it obligatory on the Court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the Court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that same prejudice was caused to him.
25.At the time of the arguments, the learned counsel for the appellant would submit that as per the evidence of P.W.6, fine amount was collected only by the appellant. He further submitted that the appellant was suffering from cancer, hence he is not in a position to give a reply immediately. At this juncture, it is appropriate to consider that the amount has been searched and the Search list has been marked as Ex.P7. In the house of the appellant, nothing has been seized. It is true, the phenolphthalein test has been conducted and the result was positive. The accused while questioning under Section 313 CrPC., he stated that without his knowledge, the amount has been kept in his table drawer. As soon as the police asked him to take the amount, he took and gave the amount and the test has been conducted and the result was positive. It is well settled principle of law that the plausible explanation given at the time of 313 CrPC questioning is admissible. It is also well settled principle of law that the defence/plausible explanation has been proved only preponderance of probabilities not beyond reasonable doubt.
26.Here, the appellant/accused has proved his case that on 17.02.1999, between 8.45 a.m. and 1.30 p.m., he was not in his office and he was attending the meeting conducted by his superior P.W.6. So the demand alleged to be made on 17.02.1999 at 9.30 a.m. cannot be true. As per the evidence of P.W.2, he gone to the Vigilance and Anti-corruption Office at Salem and gave the complaint on 17.02.1999. It shows that there was an enmity between P.W.2 and the appellant and it has proved as per the file under Ex.D1 (i.e.) file regarding the fine imposed to P.W.1. The evidence of P.W.6 has also clearly proved that the appellant is a responsible person to collect the fine amount, which was imposed to P.W.2. Even though no demand made by the appellant, before that P.W.2 lodged a complaint and the case was registered, it would clearly prove that due to previous enmity, P.W.2 had given a false complaint and that has been fortified by P.W.3 in his evidence. P.W.3 stated that on 18.02.1999, when they entered the office of the appellant, P.W.2 asked P.W.3 to stand outside the room of the appellant and P.W.2 alone entered the accused room. After some time, he came out of the room and took P.W.3 to accused room. In such circumstances, this Court has forced to conclude, due to enmity only, P.W.2 has given such a false complaint on 17.02.1999 without meeting the appellant.
27.It is true, the amount has been seized from the right side drawer of the appellant. But explanation offered in Question No.16 under Section 313 Cr.P.C., has clearly mentioned that amount has been kept in the drawer, without the knowledge of the appellant. In such circumstances, the decision relied upon by the learned Government Advocate (Crl. side) reported in 2001 Cri.L.J.175 (Madhukar Bhaskarrao Joshi v. State of Maharashtra), is not applicable to the facts of the present case.
28.Considering the fact that on 17.02.1999, the appellant/accused was not present in his office. So the demand alleged to be made by the appellant on 17.02.1999 has not been proved by the prosecution beyond reasonable doubt. But whereas the learned Chief Judicial Magistrate-cum-Special Judge has in para-12 of his Judgment, he stated as follows:
" .. .. mth; mYtyf tUifg; gjpntl;oid vLj;J M$h; bra;jjw;Fk; vt;tpj tpsf;fKk; vjphp jug;gpy; Kd;itf;ftpy;iy/ // // m/rh/6 cjtp braw;bghwpahsh; jd;Dila rhl;rpaj;jpd; Xhplj;jpy;. 18/2/99 md;W jd;Dila mYtyfj;jpw;F elj;jg;gl;l Tl;lj;jpy; vjphp g';bfLj;Jf; bfhz;ljhf Twpa[s;shh;/ Mdhy; mjw;fhd Mjhu';fs; vJt[k; ,y;iy/ mjdhy; v/rh/1.2?d; rhl;rpa';fs; vt;tifapYk; muR tHf;fpidg; ghjpf;fr; bra;atpy;iy/ // //@ On perusal of Ex.P8-Attendant Register, the name of the accused has not been mentioned. Since the appellant herein was not present in the office on 17.02.1999, there is no possibility for demanding bribe on that day. However, the learned Magistrate has not given any findings in respect of the Attendance Register under Ex.P8.
29.As per the decision of this Court reported in (2011) 4 MLJ (Crl) 34 (Cited supra), presumption cannot be raised in absence of proof of demand. So the above citation is squarely applicable to the facts of the present case. Hence, I am of the view, the prosecution has miserably failed to prove the guilt of the appellant/accused for the offence under Section 7 of Prevention of Corruption Act beyond reasonable doubt. Since Section 7 of P.C. Act has not been proved, the offence under Section 13(2) r/w 13(1)(d) of P.C. Act has not been made out. Therefore, the Judgment of conviction and sentence passed by the learned Magistrate is hereby set aside.
30.In fine, The Criminal Appeal is allowed.
Consequently, connected Miscellaneous Petitions are closed.
The Judgment of conviction and sentence, dated 04.04.2007 made in Spl.C.C.No.10 of 2002 on the file of the Chief Judicial Magistrate's Court, Namakkal. is hereby set aside.
The fine amount paid by the appellant shall be refunded to him.
kj To
1.State rep. by Deputy Superintendent of Police Vigilance and Anti Corruption Salem District.
2.The Chief Judicial Magistrate Namakkal.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras