Madras High Court
P.Malayandi vs State Rep.By on 10 February, 2010
Author: S. Nagamuthu
Bench: S. Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.2.2010 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.R.C.No.805 of 2003 P.Malayandi ... Petitioner VS 1. State Rep.by Sub Inspector Central Crime Branch Egmore,Chennai-8. 2.K.Rajkumar 3.Kandasamy @ Doraisamy 4.K.Raju 5.R.A.Kaleem ... Respondents Petition filed to set aside the order dated 10.01.2003 made in C.C.No.8029 of 1999 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai 600 015. For Petitioner : Mr.P.N.Prakash For R2 : Mr.V.Bhiman for Mr.K.Sampathkumar & Associates For R5 : A.D.Jagadish Chandira O R D E R
The petitioner is the defacto complainant in C.C.No.8029 of 1999 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai and the respondents 2 to 5 are the accused 1 to 4 in the said case. By Judgment dated 10.1.2003, the learned Magistrate acquitted the respondents 2 to 5. Aggrieved over the same, the petitioner is now before this Court with this revision.
2. The case of the prosecution in brief is as follows:
During the year 1995-1996, A1 was working as Engineer in Public Works Department, St. Thomas Mount, Sub Division Office, Chennai, A2 was working as Chief Engineer in Tamil Nadu Electricity Board, Tata Board Area at Coimbatore, A3 was working as Superintending Engineer at Coimbatore in Tamil Nadu Electricity Board and A4 was working as an Office Assistant in the Secretariat at Chennai. During the year 1995, A1 informed the petitioner (P.W.1) that he can secure job for eligible persons in Tamil Nadu Electricity Board using his influence as helpers if a sum of Rs.20,000/- per head is paid. P,W.1 informed the same to P.Ws 2 to 6. They believed the words of P.W.1. Thereafter, P.W.1 collected Rs.20,000/- per head from 9 persons, P.W.2 collected money from 36 persons at the rate of Rs.20,000/-,P.W.3 collected from 15 persons at the rate of Rs.20,000, P.W.4 collected from 10 persons at the rate of Rs.20,000/-, P.W.5 collected from 15 persons at the rate of Rs.20,000/- and P.W.6 from 10 persons at the rate of Rs.20,000/-. Thus, money was so collected from a total number of 95 persons. P.Ws.2 to 6 handed over the money collected by them to P.W.1. P.W.1 in turn paid the money collected by him as well as handed over to him by P.Ws.2 to 6 to A1 and A2. According to the charge, to A1 he paid 9.5 lakhs and to A2 and A3 together, he paid a sum of Rs.9.5 lakhs. A4 knew the above transactions. Subsequently, those persons, who parted with money with P.Ws 1 to 6 were employed on temporary basis in Tamil Nadu Electricity Board for sometime and thereafter they were dropped. When those persons demanded return of money since they could not get permanent job, P.Ws 1 to 6 in turn demanded return of money from A1 and A2. They did not repay. All these above transactions took place between 1995-1996. Thereafter, P.W.1 preferred a complaint to Central Crime Branch, Egmore, Chennai on which basis a case in Cr.No.390 of 1997 was registered under Section 420 r/w 34 IPC against the accused 1 to 3. P.W.11 initially took up investigation, examined the witnesses and recorded their statements followed by P.W.12. P.W.12 finally laid charge sheet on which cognizance was taken. As many as 13 persons were cited as witnesses on the side of the prosecution and 11 documents were also sought to be relied upon.
3. On considering the above materials, the Trial Court framed charge under Section 420 r/w 34 IPC against all the 4 accused. The accused denied the charges. Therefore, they were put on trial.
4. During trial as many as 12 witnesses were examined on the side of the prosecution and 17 documents were exhibited. P.W.1 has spoken to the fact that he collected money from 9 persons at the rate of Rs.20,000/- and handed over the same to A1 and A2 equally. He has also spoken to the fact that P.W.2 to P.W.6 brought the job seekers and paid money on their behalf at the rate of Rs.20,000/- per head. P.W.2 has spoken to the fact that he collected money from 5 persons at the rate of Rs.12,000/- and paid the same to A1 through P.W.1, during the month of January 1996. P.W.3 has spoken to the fact that he collected money from 10 job seekers at the rate of Rs.20,000/- and paid the same to A1 through P.W.1, P.W.4 has spoken to the fact that he so collected money at the rate of Rs.20,000/- from 15 persons and paid the same to A1 and A2. P.W.5 has spoken to the fact that he collected money from 15 persons at the rate of Rs.20,000/- and paid the same to A1 and A4 through P.W.1 at Chennai. P.W.6 has spoken to the fact that he collected money from 5 persons at the rate of Rs.20,000/- and paid the same to A1 through P.W.1. P.W.7 to P.W.10 are the officials of Tamil Nadu Electricity Board, who spoken about the muster roll for the relevant period. P.W.11 and P.W.12 have spoken to about the investigation done by them.
5. The defence of the accused is that they have no knowledge that money was collected from various persons by P.Ws. 1 to 6. It is their specific defence that money was never paid to them by P.Ws.1 to 6. Having considered all the above materials, the Trial Court has acquitted the accused. The petitioner is aggrieved by the same and that is how he is before this Court with this revision.
6. Before going to appreciate the facts of the case, let me state the law relating to the powers of revision of this Court against acquittal, that too at the instance of a third party. In Hydru Vs. State of Kerala reported in 2004(13) SCC 374, the Honourable Supreme Court has held that the powers of revision of the High Court against acquittal are very limited. It could interfere with the order of acquittal only if there is any procedural irregularity noticed or that material evidence has been over looked or misread by the Trial Court. The Honourable Supreme Court has referred to the earlier Judgment in Ayodhya Dube Vs.Ramsumersingh reported in 1981 Supp SCC: 83. It may not be necessary to refer to many Judgments of the Honourable Supreme Court on this subject as it would only burden this Judgment. Keeping in mind the above stated principles of law, relating to the powers of this Court under Section 397 Cr.P.C, in respect of revision against acquittal that too at the instance of the third party, let me now analyse as to whether the lower Court can be found fault with by drawing the findings under any one of the parameters enumerated herein before.
7. The learned counsel for the petitioner would take me through the evidence of P.Ws.1 to 6 to substantiate his contention that the Judgment of the lower Court cannot be sustained as there is consideration of irreverent materials. He would submit, that itself would indicate the perversity of the Judgment. At the outset, the learned counsel would take me through the Judgment of the lower Court wherein the lower Court has elaborately referred to and dealt with an opinion offered by the Assistant Public Prosecutor of the Trial Court on the investigation report of the police. The lower Court has stated that the Assistant Public Prosecutor had given opinion that no prima facie case is made out against the accused and therefore, it is not a fit case for laying charge sheet. It is on this opinion of the Assistant Public Prosecutor, according to the learned counsel, the lower Court has thought it fit to acquit the accused. In this regard, the learned counsel would rely on the Judgment of the Honourable Supreme Court in R.Sarala Vs.T.S.Velu reported in 2000 AIR SCW 1791 wherein it has held as follows:
" Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor and submit a charge sheet in tune with the opinion of the Public Prosecutor."
Relying on this, the learned counsel submits that the lower Court was not right in giving weightage to the opinion offered by the learned Assistant Public Prosecutor.
8. I am in full agreement with the said argument of the learned counsel. As held by the Hon'ble Supreme Court, Public Prosecutor's opinion is not at all required for an investigation officer to come to a conclusion as to what is the nature of the final report that he has to submit to the Court on the basis of the materials collected during investigation. Such opinion can influence the decision-making of the investigating officer. It is only for the investigating officer to look into the materials collected by him during investigation and to lay a final report either positive or negative. It is needless to point out that the Court is not bound by the opinion of the investigating officer stated in the final report while deciding to take cognizance of the offence said to have been committed by the accused. The learned Magistrate is required to thoroughly go through all the materials filed along with the final report and then only to take a decision whether to take cognizance or not. Even while taking such cognizance, the learned Magistrate cannot rely on the opinion of the Assistant Public Prosecutor as such opinion of the Assistant Public Prosecutor does not form part of the report of the investigation officer filed under Section 173 Cr.P.C Such opinion even if it is filed along with the final report, in my considered opinion, shall not in any manner influence the judicial mind of the Court while deciding to take cognizance.
9. In the case on hand, on going through all the materials submitted along with the final report, the Court found that there were cognizable offences committed by the accused and that is the reason why the Court took cognizance of the offences. Once cognizance is so taken, it goes without saying that the Court has found out prima facie materials to try the case.
10. Thereafter, the next stage of framing of charge comes. At that stage, again the Court is required to look into all the materials to see whether there are grounds to frame charges or not. In this case, admittedly, charges were framed, which means, the lower Court found sufficient grounds to frame charge. After all the above exercise, I wonder as to how the learned Magistrate can go back to the opinion offered by the Assistant Public Prosecutor to render the finding that the accused are innocent. Certainly the finding of the Trial Court to the extent that it is based on such opinion of the Assistant Public Prosecutor is perverse.
11. Now, the question as to whether on the above findings of mine alone the entire Judgment of the lower Court requires to be interfered with under the revisional Jurisdiction, is to be considered. In my considered opinion, it is not so. As rightly pointed out by the learned counsel for the respondents, ultimately the conclusion of the Trial Court to acquit the accused is not only based on the above perverse finding but also on the other findings based on the evidences let in by the prosecution. In order to appreciate this statement of the learned counsel for the respondents, I have gone through the evidences of P.Ws.1 to 6 carefully. Needless to point out that P.W.1, though happens to be a prosecution witness is no better than an accomplice. It is not as though he acted innocently that getting job for money by paying bribe is not illegal. From the facts spoken to by the witnesses, it is manifestly clear that P.W.1 also joined hands with A1 to A4 in the offence allegedly committed by them and he is not a victim. His statement will render him liable for prosecution as the same is not protected by Section 24 of the Prevention of Corruption Act as there is no change under the said Act. Therefore, though P.W.1 happens to be a prosecution witness and though the case was registered based on his complaint, he has to be considered only as an 'accomplice'.
12. Under Section 114 of the Evidence Act, a presumption has to be drawn, that the evidence of an accomplice is unworthy of credit, unless it is corroborated in material particulars. In this case, such presumption as against P.W.1 has to be necessarily drawn. Section 133 of Evidence Act, that there would be nothing illegal merely because the conviction proceeds upon uncorroborated testimony of an accomplice. A conjoint reading of the above provisions would reveal, so long as the presumption under Section 114 of Evidence Act is not rebutted, the benefit given under Section 133 of Evidence Act cannot be made use of.
13. Now, the question is as to whether the presumption drawn against the evidence of P.W.1 stands rebutted or not ? In my considered opinion the presumption has not been rebutted. Therefore, we have to see as to whether there is any corroborative evidences coming forward from independent sources. The evidences of P.Ws.2 to 6 cannot be relied on because they are accomplice evidence. Therefore, in the absence of corroborative evidences from independent witnesses, it is not safe to rely on the evidences of P.Ws.1 to 6 to record conviction.
14. Is it a case where no corroborative evidence could have been collected by prosecution? It is unfortunate that though it is stated that 95 persons have lost their money, no sincere effort has been taken by the investigating officer to do a thorough investigation. It is not as if 95 persons, who parted with their money, are unknown persons. It could have been easier for the investigating officer to find out the whereabouts of all those persons, to examine them and to find out whether they paid money to P.Ws.1 to 6 and in turn to A1 and A2. I do not understand as to why the investigation was hurriedly conducted without even taking up any endeavour to examine those 95 persons. I am sure, had those witnesses been examined before the Trial Court, certainly they would have let in corroborative evidences to corroborate P.Ws.1 to 6, in which case, it would have been possible for this Court to analyse further in order to interfere with the acquittal on the basis of the said evidences. At this length of time, that too while exercising revisional Jurisdiction, I am of the view it would not be possible for this Court to order for further investigation by upsetting the order of the Court.
15. The learned counsel for the petitioner would submit that it is explicit from the records, that the investigation done in this case is perfunctory and so on that ground, the acquittal may be set aside. Whether on that score acquittal should be interfered with? In my considered opinion if the nature of perfunctory investigation done does not affect the case of the prosecution, which is otherwise established by cogent and convincing evidence, then solely on the ground of lapses committed by the investigating officer or that investigation is perfunctory, no Court will tend to acquit the accused. Regarding that legal proposition, there is no second opinion. In this case, because of the perfunctory investigation done, the prosecution has lost the valuable evidences which would have been brought on record from 95 independent persons. In the absence of evidences of these 95 persons, as already stated, it is difficult to upset the order of acquittal solely relying upon the accomplice evidence of P.W.s.1 to 6 alone.
15. In view of all the above, I find no option but to dismiss the revision as it does not satisfy the parameters which I have enumerated at the beginning of this Judgment. Accordingly, this revision is dismissed.
10.02.2010 Index:Yes/No Internet:Yes/No S. NAGAMUTHU ,J.
kua To XI Metropolitan Magistrate, Saidapet, Chennai 600 015.
Crl.R.C.No.805 of 200310.2.2010