Madras High Court
Narayanan vs State : Deputy Superintendent Of Police on 5 October, 2018
Author: R. Tharani
Bench: R. Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 17.04.2018
DELIVERED ON :05.10.2018
DATED: 05.10.2018
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
Crl.A.(MD)No.283 of 2007
Narayanan ... Appellant
Vs.
State : Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Trichy.
Crime No.19 of 1997. ... Respondent
PRAYER: Criminal Appeal is filed under Section 374 of Cr.P.C., to call for
the records made in Special Case No.9 of 2001 on the file of the Chief
Judicial Magistrate, Tiruchirappalli, by order dated 07.06.2007.
!For Appellant : Mr.R.Vijayakumar
^For Respondent : Mr.K.Sumbu Linga Bharathi,
Government Advocate (Crl. Side)
:JUDGMENT
Heard Mr.R.Vijayakumar, learned counsel appearing for the appellant and Mr.K.Sumbu Linga Bharathi, learned Government Advocate (Crl. Side) appearing for the respondent.
2.This appeal was filed to set aside the order passed in Special case No.9 of 2001 on the file of the learned Chief Judicial Magistrate, Thiruchirapalli dated 07.06.2007.
3.The appellant was convicted under Sections 7, 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act and was sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/- (Rupees One Thousand only) in default to undergo three months Rigorous Imprisonment for an offence under Section 7 of the Prevention of Corruption Act and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/- (Rupees One Thousand only) in default to undergo three months Rigorous Imprisonment for an offence under Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act.
4.The case of the prosecution is that the appellant was working as Deputy Inspector of Survey in Taluk Office, Trichy and the allegation against the appellant is that he demanded and accepted illegal gratification a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) from P.W.2 Annamalai on 24.07.1994 at about 11.15 a.m., for measuring a property which was a subject to dispute before the District Munsif Court, Tiruchirappalli. The complainant gave a complaint and a trap was laid and that the appellant received Rs.1,500/- (Rupees One Thousand and Five Hundred only) as illegal gratification and that after following all the legal procedures charge sheet was filed.
5.The case against the appellant is that one Annamalai (P.W.2) who is one of the plaintiffs in the above suit approached the appellant on 23.07.1999 at his office and requested him to survey the land for which the appellant has alleged to have demanded a sum of Rs.2,000/- (Rupees Two Thousand only) as illegal gratification to measure the land and then he reduced the same to Rs.1,500/-. It is stated that the appellant has directed the said Annamalai to pay the same on 24.07.1999 around 11.00 a.m., near the Police beat of Thiruvarambur Railway Station Road.
6.P.W.2 gave complaint. Trap was laid. P.W.2 handed over the powder smeared notes, in the presence of P.W.3 and by P.W.4 shadow witness and that the accused received the same. The Investigating Officer has recovered the tainted notes from the accused and conducted phenolphthalein test. The currency notes and the shirt pocket of the accused were sent for chemical examination and the report reveals the presence of phenolphthalein powder. After enquiry, the Investigating Officer laid the chargesheet.
7.On the side of the appellant, it is stated that the prosecution failed to prove demand receipt and recovery and it is stated that the trial Court failed to consider the material flaws in the case of the prosecution and has wrongly convicted the accused.
8.On the side of the appellant, it is stated that the reason for demand itself is not proved by the prosecution. It is stated that the appellant received Ex.P7 notice from the learned District Munsif, Trichy in connection with O.S.No.658 of 1999 and I.A.No.546 of 1999 to survey the disputed land in S.No.698, Murugan Koil Road, Thuvakudimalai South and assist the Advocate Commissioner on 24.07.1999 at 11.00 a.m. The appellant has to obey the Court order and that there cannot be a chance for the appellant to ask for an illegal gratification.
9.On the side of the appellant, it is stated that in all trap cases, it is invariable stated that the accused demanded some amount and then reduced the amount. The accused appellant was supposed to survey the disputed land and that there is no chance for the appellant and the witness to meet at any other place. As per the evidence of P.W.2, the demand was made only by the office of Assistant not by the appellant herein. It is stated that the trial Court has failed to consider that P.W.2 who is the defacto complainant has turned hostile and the demand itself was not proved by the prosecution.
10.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Nayankumar Shivappa Waghmare v. State of Maharastra reported in 2015 Crl. L. J. 3422, which reads as follows:
?Nothing however on record to explain why complainant filed complaint when there was no demand and papers were being cleared on that date- Clear case where presumption under Section 20 applies?
In support the Judgment passed by the Hon'ble Supreme Court in the case of M.Narsinga Rao v. State of Andhra Pradesh reported in 2001 Crl. L. J. 515 is cited.
11.On the side of the appellant, it is stated that P.W.2 has deposed that the accused has already measured the disputed land and has reported in favour of Irudayaraj and the other witnesses told him that if the accused measure it again it would not be in favour of P.W.2 and that there is every possibility for the defacto complainant to have lodged a false complaint against this appellant.
12.Motive as per the prosecution is that the appellant demanded money for surveying a property relating to a Civil suit in I.A.No.546 of 1999 in O.S.No.658 of 1999. The evidence of P.W.2 reveals that the appellant has already surveyed the concerned property and has found the measurement in favour of somebodyelse who is a rival claimant of P.W.2. Moreover P.W.2 has deposed that the land belonged to BHELL. Co., and that his rival claimant has taken the land on lease and he requested the accused to measure the property favouring him. From the evidence of P.W.2, it is clear that P.W.2 is having some motive against this accused.
13.P.W.2 has deposed that the demand was made only by the staff and not by the accused. He has further deposed that he first gave complaint as if the peon was demanding bribe and later as per the directions of the DSP he altered the complaint and gave the name of the accused. P.W.2 has admitted that the accused never demanded or received the amount and that the accused tried to prevent his attempt to pay the amount and then he forcibly placed the tainted notes in the shirt pocket of the accused. No other witness has deposed anything regarding the demand. When the accused is bound by a Court order to visit, and measure a place, in the presence of a Court Commissioner, there cannot be a possibility for a demand. The prosecution has failed to examine the Court Commissioner. Hence, it is decided that ?demand? is not proved by the prosecution.
14.On the side of the respondent, it is stated that on receipt of the complaint, the Investigating Officer called upon the Officials to be witness and on his request P.Ws.3 and 4 were present in the office. Thereafter, model phenolphthalein test was conducted and the tainted notes were handed over to P.W.2. P.W.2 was accompanied by P.Ws.3 and 4. P.W.2 has stated that when P.W.2 tried to give the amount, the accused prevented the payment stating that it is a public place and though P.W.2 was treated as hostile, P.W.3 has supported the prosecution. It is further stated that demand and receipt of illegal gratification is proved in this case and the minor contradiction in the evidence of P.Ws.2 and 3 are negligible. P.W.3 has clearly admitted that the accused has asked P.W.2 whether the amount is ready and that P.W.3 has also deposed that after receiving the amount, the accused kept the amount in the inner pocket of his shirt.
15.On the side of the appellant, it is stated that the evidence of P.W.2 is not corroborated by the evidence of P.W.3 regarding the place of occurrence and that P.W.14 did not depose anything regarding the presence of P.W.7. It is further stated that P.W.7 was examined by the Investigating Officer only after 15 days from the date of occurrence whereas P.W.s.2, 3 and 4 were examined immediately and that Investigating Officer deliberately avoided examination of P.W.7 on that date. On the side of the prosecution, it is stated that P.W.7 has admitted that the accused was incharge of the work and that the accused has asked P.W.7 to wait at the occurrence place and the place of occurrence is fixed by the accused.
16.On the side of the appellant, it is stated that the place of occurrence is not proved by the prosecution and that P.W.3 has stated that immediately after receipt of the tainted notes, the accused was taken to Aadhipara sakthi Free Medical Hospital and that in the evidence of P.W.4, it is stated that there is a crowd in the place and that the accused was taken to valikatu mandapam which is 100 ft. away and that P.W.7 has deposed that the accused was taken by 4 or 5 people to the Hanuman temples.
17.On the side of the respondent, it is stated that Aadhipara sakthi Free Medical Hospital is situated at the Hanuman Temple street and Ex.P 10 has clearly stated that there is a street called Sri Hanuman Paktha Swamy Street within 100 metres, there is a hospital by name Aadhipara sakthi Free Medical Hospital and that contradictions regarding the place of occurrence, in the evidence, P.Ws.3, 4 and 7 are minor in nature and they can be ignored.
18.In the evidence of P.W.14, it is stated that the accused was taken to Hanuman temple street which is 3 metres away. In the evidence of P.W.17 and in the rough sketch Ex.P.17, the name of Hanuman Temple Street is not mentioned. It is stated that the occurrence place is near the Police Booth which is a public place with number of shops. But P.W.17 has not chosen to examine any of the persons who were nearby. No independent witness who belonged to the area was examined by the Police and the evidence of P.W.3, 4 and 7 are contradictory and the location of transaction is doubtful.
19.On the side of the appellant, it is stated that acceptance of illegal gratification is not proved by the prosecution. It is stated that the accused did not receive any amount from the defacto complainant.P.W.2 forcibly placed the amount in the shirt pocket of the accused.
20.On the side of the appellant, it is stated that P.W.3 has deposed that when the complainant paid the accused the tainted notes, the accused placed the amount inside his shirt pocket and that the evidence of P.W.3 and P.W.2 are contrary in two aspect, one is that as per the version of P.W.3, the appellant demanded and received the amount and then he kept the amount in his shirt pocket whereas the version of P.W.2 is that the accused refused to receive the amount as it is a public place and that it is P.W.2 who placed the tainted note in the shirt pocket of the accused and that one of the shadow witness P.W.4 turned hostile, the receipt of bribe is not proved by the prosecution. P.W.7 has deposed that he saw the accused taken away by four or five persons near the Trichy-Tanjore Bridge on 24.07.2009 and that P.W.7 has not stated anything regarding the receipt of illegal gratification.
21.On the side of the appellant, it is stated that the Investigating Officer P.W.14 who registered the FIR and who laid the trap has deposed that he did not saw the acceptance of bribe by the accused and that both the shadow witness and the Investigating Officer have not seen the accused receiving illegal gratification and that receipt of bribe is not proved by the prosecution.
22.The learned counsel appearing for the appellant relied on the Judgment passed by the Hon'ble Supreme Court in the case of B.Jayaraj v. State of A.P. reported in 2014(2) MWN (CR.) 376 (SC), which held as follows:
?Presumption under ? can be drawn only in respect of offence and Section 7 and not offence under Section 13(1)(d)(i) and (ii)- only up proof of acceptance, presumption under Section 20 as to receipt gratification can be drawn-proof of acceptance can follow only when there is proof of demand-in absence of same, no presumption can drawn under Section 20.? Held, complainant P.W.2) turned hostile ? No other witnesses present at the time of transaction between P.W.2 and appellant-accused were examined-when P.W.2 disowned his own statement, contents of complaint (Ext. P-11) cannot be relied on -in absence of proof of demand for illegal did not establish commission of offence ? so demand of illegal gratification by appellant- accused not proved beyond reasonable doubt?
23.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of N. Sunkanna v. State of Andhra Pradesh reported in (2016) 1 Supreme Court Cases 713, which reads as follows:
?Demand not proved-Inapplicability of presumption under Section 20 - Held, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Sectin 20 of the Act that such gratification was received for doing or forbearing to do any official act - Unless there is proof of demand of illegal gratification, proof of acceptance will not follow
- Primary facts on basis of which legal presumption under Section 20 can be drawn, are wholly absent ? Conviction and sentences are set aside.?
24.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Mukhtar Singh (Since Deceased) v. State of Punjab reported in 2017 SAR (Criminal) 860, which reads as follows:
?Not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, P.W.1, P.W.2 and P.W.5 with regard to the location of the transaction relating to Rs.2,000/- also renders it doubtful ? Prosecution has failed to prove the charge levelled against the original accused beyond all reasonable doubt?
25.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Mukhtar Singh (Since Deceased) v. State of Punjab reported in 2017 SAR (Criminal) 860, which reads as follows:
?Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand , ipso facto, reiterated, would not be sufficient to bring home the charge under Section 7 and 13 of 1988 Act ? Conviction reversed?
26.On the side of the respondent, it is stated that the tainted notes are recovered from the accused and the chemical examination proved that there were traces of phenolphthalein on the currency notes and on the shirt pockets of the accused and that the prosecution has proved the case.
27.On the side of the appellant, it is stated that P.W.2 has deposed that the accused never demanded or received any amount and that the 'demand' and receipt of illegal gratification was falsified by the evidence of P.W.2 who is the complainant and that when demand and acceptance of illegal gratification was not proved mere recovery is insufficient to convict the accused.
28.On the side of the prosecution, it is stated that there is presumtion under Section 20 of the Act that the offence is being committed by the accused. On the side of the appellant, it is stated that in the absence of any evidence to prove the demand and receipt, mere possession and recovery of tainted notes is not sufficient to establish the offence.
29.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of M.R.Purushotham v. State of Karnataka reported in (2015) 3 Supreme Court Cases 247, which reads as follows:
?Held, demand of bribe has not been proved by prosecution ? Mere possession and recovery of currency notes from accused without proof of demand do not constitute offence under Section 13(1)(d) r/w. Section 13(2) of the Act ? Conviction and sentence set aside?
30.When the prosecution has failed to prove the demand and receipt the mere fact of recovery is insufficient to prove the case.
31.On the side of the respondent, it is stated that the sanction order and the complaint, Ex.P2 were proved by the evidence of P.W.1 and P.W.2. Receiving gratification and M.Os.1 to 6 are proved by the witness. The analysis report reveals that shirt of the accused contain sodium carbonate and P.W.12 has deposed to that effect. P.Ws.5 and 6 have deposed that P.W.5 was incharge of the work. The place of occurrence was fixed by the accused and it was proved by the deposition of P.W.7 and all the witness except for minor contradiction have narrated the incidents which are supported by the evidence of P.W.14 who is the Investigating Officer and the lower Court is reasonable in convicting the appellants.
32.On the side of the appellant, it is stated that the sanctioning authority P.W.1 in this case has categorically stated that he has perused the statement given by the accused whereas the accused has not given any statement in this case. More over in the evidence of P.W.15 it is stated that P.W.15 has recorded the statement of the accused on 29.11.2000 and that this statement is unbelievable as it is alleged to have been recorded after 17 months from the date of occurrence. It is further stated that the accused who is now 72 years old had undergone heart surgery and he was subjected to sufferings by this false complaint by the laying of this charge sheet.
33.The learned counsel appearing for the appellant relied upon the Judgment passed by the Hon'ble Supreme Court in the case of P.Palraj v. State reported in 2012 (3) MWN (Cr.) 380, which reads as follows:
?Sections 7, 13(2) r/w. 13(1)(d) ? Appeal against conviction ? Failure to establish demand ? Tainted money not seized from possession of Accused ? Failure of Trap Laying Officer to record statement of Accused immediately after arrest ? Failure to appreciate defence version, which sounds probable ? Charges against Appellant not established beyond reasonable doubt ? Conviction, held liable to be set aside.?
34.It is seen that the reason stated for getting bribe is for visiting and surveying a particular place on the basis of a civil Court order. It is further stated that the Court Commissioner who has to visit the place for inspection of the suit property with the help of the Surveyor was not examined by the prosecution.
35.P.W.2 has deposed that first he gave complaint as if the peon has demanded the amount and then, on the directions of the Deputy Superintendent of Police, he gave an amended complaint as if the demand was by the accused himself and that P.W.2 has given two complaints before the respondent and that the first complaint was not registered by the Police and Ex.P2 the second complaint alone was registered. There is some suspicion regarding the complaint.
36.On the side of the prosecution, it is stated that P.W.2 gave the amount to the accused in the presence of P.Ws.3 and 4. None of the witnesses has stated that they saw the accused receiving the amount even P.W.2 has stated that the accused refused to receive the amount and he forcibly placed the amount in the shirt pocket of the accused. P.W.7 has also stated that he did not see whether P.W.2 gave any amount to the accused. The evidence of P.W.3 is not corroborated either by P.W.2 or by P.W.4 or by P.W.7. Hence, receiving the bribe amount by the accused is not proved by the prosecution. The other witnesses are recovery witness. On the side of the appellant, so many judgments are cited as ?mere recovery is insufficient to convict a person?. As the motive, demand and receipt are not properly proved by the prosecution, mere recovery is insufficient to convict a person. Hence, it is decided that the prosecution case is not proved.
37.In the above circumstance, the order passed by the trial Court is set aside and the criminal appeal is allowed. The appellant is acquitted from all the charges. Bail bonds if any executed, shall stand cancelled. The excess fine amount if any paid by the appellants shall be refunded.
To
1.The Principal District and Sessions Judge, Trichy.
2.The Chief Judicial Magistrate, Tiruchirappalli.
3.The District Collector, Madurai.
4.The Superintendent of Police, Trichy.
5.The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Trichy.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
7.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
.