Madras High Court
A.Marudachalam vs State By Inspector Of Police on 6 March, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.314 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.10.2019
Pronounced on : 06.03.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.314 of 2011
A.Marudachalam ... Appellant
Vs.
State by Inspector of Police,
V & AC, Coimbatore in
Crime No.9/2004/AC/CB,
AC/CB. ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure, against the Judgment made in C.C.No.6 of 2005 by Special Judge
and Chief Judicial Magistrate, Coimbatore by Judgment dated 16.05.2011
convicting and sentencing the accused for the alleged offence under Section
7 and Sections 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988 to undergo two years rigorous imprisonment for
offence under Section 7 of Prevention of Corruption Act, 1988 and two years
rigorous imprisonment for offence under Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act (the sentence to run
concurrently) and to pay a fine of Rs.10,000/- for offence under Section 7
of Prevention of Corruption Act, 1988 and Rs.10,000/- for offence under
Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act
(Totalling to Rs.10,000/-) in default to undergo six months simple
imprisonment.
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Crl.A.No.314 of 2011
For Appellant : M/s.S.Ashok Kumar, Senior Counsel for
M/s.P.Palaninahtan
For Respondent : M/s.M.Prabhavathy,
Additional Public Prosecutor
*****
JUDGMENT
This appeal arises out of the conviction and sentence imposed by the learned Special Judge and Chief Judicial Magistrate, Coimbatore in C.C.No.6 of 2005 dated 16.05.2011, wherein the appellant was tried for the offence punishable under Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The learned trial Judge convicted the appellant for offence under Section 7 of Prevention of Corruption Act, 1988 and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/- in default, to undergo 6 months simple imprisonment and for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, the appellant was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/- in default, to undergo 6 months simple imprisonment. The sentences were ordered to run concurrently.
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2.The background facts, as projected by the prosecution are as follows:
2.1.PW2/Govindasamy, who was working as Secretary in United Commercial Organization lodged a complaint [Ex.P2] on 02.06.2004 to PW6 that the United Commercial Organization was alloted construction of 650 lavatories in Soolur Panchayat Union by the District Collector, Coimbatore by order dated 10.07.2003 in Na.Ka.No.875/2003/C1 [Ex.D1] under the Special Component Scheme viz., 'Sampoorna Grama Rojkar Yochna', the appellant was Overseer of the said Panchayat and the scheme has to be completed by 15.08.2003. PW2 completed the construction of 300 lavatories during March 2004 and approached the appellant for getting completion certificate to enable him to get payment cheque. On his request, the appellant visited and verified the construction works of 300 lavatories during April 2004, at that time the appellant had demanded Rs.5,000/- for issuance of the completion certificate. PW2 pleaded that he was not having money and then the appellant issued him a work completion certificate and informed him that PW2 has to pay the demanded money during the next bill. PW2 on receipt of work completion certificate issued by the appellant received an amount of Rs.1,16,000/-. 3/20
http://www.judis.nic.in Crl.A.No.314 of 2011 2.2.Thereafter, on 01.06.2004 after completion of construction of 50 lavatories, PW2 approached the appellant for completion certificate at about 10.00 a.m. At that time, the appellant demanded Rs.5,000/- as bribe for the issuance of completion certificate and further threatened that unless amount is not paid, he will give a report that the construction was not proper and thereby he will not receive any amount and directed PW2 to come next day morning with the demanded amount. PW2 not willing to give bribe to the appellant, lodged a complaint [Ex.P2] before the Vigilance and Anti Corruption, Coimbatore on 02.06.2004 at about 01.00 p.m. PW6, the Investigation Officer received the complaint and registered an FIR [Ex.P9] in Crime No.9 of 2004 and enlisted PW3 and PW4 to be witnesses for trap proceedings and explained the same in the Office of Vigilance and Anti Corruption. PW2 brought ten five hundred rupees note, which was smeared with phenolphthalein powder and handed over to PW2 to put in his right shirt pocket.
2.3.PW2 and PW3 proceeded in their bike followed by trap team to the office of the appellant at about 06.05 p.m and met the appellant and requested for the completion certificate for the construction work, at that 4/20 http://www.judis.nic.in Crl.A.No.314 of 2011 time the appellant reiterated his demand and asked PW2 whether he had brought the money and PW2 informed that he had brought the money. The appellant took them to nearby canteen, where he received the bribe money, counted the same using both hands and kept in his shirt pocket and thereafter, PW2 and PW3 came out of the office and PW2 gave the pre- arranged signal, on seeing the same PW4, PW6 and other trap team members entered the office of the appellant, enquired PW2, who informed that the appellant had received the bribe amount. PW3 confirmed the same. Thereafter, PW6 enquired the appellant about the trap amount and conducted phenolphthalein test, which turned positive. Thereafter, the money was recovered from the appellant and he was arrested and recovery mahazar [Ex.P5] was drawn. Following the trap, the house of the appellant was searched and house search mahazar [Ex.P7] was prepared. PW6 handed over the investigation to PW7, who conducted further investigation and on his transfer, PW8 took up the investigation, enquired the witnesses, recorded their statements, received reports from forensic and on completed the investigation and filed the charge sheet. The case was tried against the appellant in C.C.No.6 of 2005 on the file of the Special Judge for Chief Judicial Magistrate Court, Coimbatore. 5/20 http://www.judis.nic.in Crl.A.No.314 of 2011
3.Before trial Court, the prosecution examined 8 witnesses, marked 11 exhibits. On the side of the defense, 5 witnesses examined and 5 exhibits marked.
4.On conclusion of the trial, the learned trial Judge put the incriminating materials to the appellant under Section 313 Cr.P.C., and the appellants denied the same. Upon appreciating the evidence let-in by the prosecution, the trial Court found the appellant guilty and convicted him as stated above. As against the conviction and sentence, appeal is filed.
5.The learned counsel for the appellant submitted that the appellant has been falsely implicated in this case. PW2 though claims to be the Secretary of United Community Organization, he is not the Secretary of the said organization and from the complaint [Ex.P2] it is seen that a letter of the United Community Organization has been used in order to lodge a complaint on the claim as Secretary. From Ex.D2 it is seen that it is one R.Govindasamy who is the Secretary and PW2 is not a Office bearer of United Community Organization and DW2 confirms the same. The United Community Organization was allotted construction work of 650 lavatories by the District Collector by order dated 10.07.2003 under the Special 6/20 http://www.judis.nic.in Crl.A.No.314 of 2011 Component Scheme viz., Sampoorna Grama Rojkar Yochna and this scheme is under food for work wherein major portion of the payment made through rice and some portion by cash. As per scheme 126.389 metric tonnes of rice and cash of Rs.2,60,90/- has been distributed.
6.PW2 admitted that even before completing the construction of 50% of the lavatories, the entire rice has been taken and utilized, which is against the rules and norms of the scheme. In order to regularize the same, PW2 approached the appellant for authentication in Nominal Muster Roll (NMR) which was refused by the appellant and hence, PW2 had animosity against the appellant. PW2 further admitted that based on the proceedings of the District Collector dated 10.07.2003, an order for construction of 650 lavatories was allotted to United Community Organization and the construction work to be completed by 15.08.2003. He further admitted that the scheme is under a special component wherein a major portion of the wages has been given as rice and the balance portion has been given in cash, which has to be availed in commensurate to the construction. PW2 further admitted that by 05.09.2003 the entire wages in rice component of 126.389 metric tonnes valid around Rs.7,14,907/- was received by him before completion of the construction work. This violation was questioned by the appellant and he refused to authenticate Nominal Muster Roll. 7/20 http://www.judis.nic.in Crl.A.No.314 of 2011 Further, it is admitted that Nominal Muster Role has to be verified by the Accountant, Manager, appellant/overseer and Block Development Officer.
7.The learned counsel for the appellant further submitted that the trap amount of Rs.5,000/- was actually paid for concrete rings taken and utilized by PW2 for construction of lavatories. PW2 admitted that for construction of lavatories, concrete rings were used and further he also admits that he knew DW1. DW1 categorically stated that the concrete rings stacked in front of his residence, was taken by PW2 for construction work. When DW1 questioned PW2 as to why he is taking the concrete rings, PW2 informed to DW1 that he has informed the appellant. Further, it is to be seen that DW1 was not cross examined by the prosecution and his evidence is left unchallenged.
8.PW2 admits that he was present throughout and after the trap and during recording of proceedings. PW3, accompanying witness stated that the President of the Panchayat Union was present and he was not examined. PW3 further stated that he along with PW2 and PW4 had gone to meet the appellant and the trap amount recovered from the shirt pocket of the appellant and the other amount from his pant pocket. PW3 categorically stated that the explanation given by the appellant was not 8/20 http://www.judis.nic.in Crl.A.No.314 of 2011 recorded and further he stated that getting anxiety is normal when a group of people enter suddenly into the office. PW4/the other witness for the post trap proceedings stated that two more persons were present during recording of trap proceedings, but they were not examined. PW4 further stated that the appellant had given an explanation that the money given by PW2 is only for concrete rings. He further stated that in 161 Cr.P.C statement and the same has been recorded by PW7 and he was instructed not to disclose the same. PW7 admitted that he has recorded such a statement but now feigns ignorance. In this case, the Nominal Muster Roll registers were summoned by the trial Court under Section 91 of Cr.P.C and the officals from Sulur Panchayat replied that the Nominal Muster Roll registers were taken away by the Vigilance and Anti Corruption Police. If Nominal Muster Roll registers have been produced, it would expose the falsehood of PW2's claim and prove PW2 is an untrustworthy witness.
9.The learned counsel for the appellant further submitted that PW6 has stated Ex.P2/complaint was given by PW2 in the capacity as Secretary. Though PW2 had stated photostat copy of allotment order was submitted to the Investigating officer, PW6 has stated that no such allotment order or any other documents was submitted by PW2. PW8 categorically stated that 9/20 http://www.judis.nic.in Crl.A.No.314 of 2011 the allotment order was not produced.
10.The appellant examined defence witnesses DW3, DW4 and DW5 from the office of the District Collector as well as Sulur Panchayat. Ex.D1/the allotment order had been marked to prove the fact of PW2 claiming the entire rice component before the completion of the work, denying the same to the beneficiaries and selling it in the open market. From Ex.D2, it is seen that the appellant is neither Secretary nor Office Bearer of the United Community Organization. Ex.D4 is the explanation given by the appellant to the District Collector, Coimbatore with regard to the motivated and false complaint lodged by PW2 and this explanation has not been considered.
11.Further, the learned counsel for the appellant submitted that the Nominal Muster Roll registers which was summoned under Section 91 of Cr.P.C was not produced to prove PW2 had received the rice before completion of the work and falsity of his claim, the lower Court brushed aside these facts without giving any reason. Likewise the explanation given by the appellant immediately after trap which is admitted by the prosecution witnesses have not been properly taken into consideration and the lower Court failed to look into Ex.D4, the explanation of the appellant 10/20 http://www.judis.nic.in Crl.A.No.314 of 2011 wherein he had stated about availability of 20 sets of concrete rings and PW2 utilized a portion of the rings which was available with the Panchayat union.
12.DW1 is the resident of Sulur Panchayat Union and in front of his house, the concrete rings were stacked which was taken and utilized by PW2 for construction of lavatories. Thus by examining DW1 to DW5 and producing the documents Ex.D1 to Ex.D5 and also through cross examination of PW2, PW3, PW4, PW6, PW7 and PW8, the appellant clearly probablized and established the case that the amount of Rs.5,000/- was handed over by PW2 for concrete rings and the explanation given by the appellant, was not recorded and the same is admitted by the prosecution witnesses. Hence, the appellant had probablized his defense and prayed for acquittal.
13.The learned counsel for the appellant relied upon the following two citations:-
“1.T.Subramanian Versus State of Tamil Nadu reported in MANU/SC/8010/2006.
2.Ramakrishnan Versus State reported in MANU/TN/6099/2006.”
14.Per contra, the learned Additional Public Prosecutor appearing for 11/20 http://www.judis.nic.in Crl.A.No.314 of 2011 the respondent submitted that in this case the prosecution has examined PW1 to PW8 and marked Ex.P1 to P11 and recovered MO1 to MO2. PW1 is the sanction witness, who had issued Ex.P1 the Sanctioning Order. PW1 has categorically stated that on perusal of the materials and application of mind independently he had passed the Sanction Order. PW2 is the decoy witness, who had stated about the entire happenings, the earlier demand Rs.5,000/- when he sought approval for 300 lavatories during march 2004. At that time PW2 stated his inability to make the payment and the completion certificate was given on the condition that for future approvals, the amount has to be paid. On 01.06.2004, PW2 had gone for approval for 50 latrines, the demand was again made and PW2 was directed to bring the bribe amount of Rs.5,000/- on the next day morning.
15.Thereafter not willing to give bribe, PW2 had approached PW6 and lodged a complaint [Ex.P2] and thereafter, PW3 and PW4, the official witnesses were summoned and the significance of the trap explained and on 02.06.2004 at about 06.05 p.m., PW2 and PW3 had proceeded to the office of the appellant, where the appellant again reiterated his demand and PW2 stated about his willingness to pay the amount and the appellant had took PW2 and PW3 to canteen where he received the bribe amount and promised 12/20 http://www.judis.nic.in Crl.A.No.314 of 2011 that within two days the completion certificate would be handed over. PW2 and PW3 came out and as decided earlier, the pre arranged signal was given. PW4 along with PW6 entered into the office of the appellant. The appellant became jittery and he was identified by PW2 and phenolphthalein test was conducted and it turned pink and thereafter bribe amount was recovered and recovery mahazar prepared. The house of the accused was searched. The evidence of PW2 is corroborated by PW3 and PW4. PW6 handed over the investigation to PW7, who had taken up further investigation examined the witnesses and sent the articles for forensic examination and thereafter on his transfer, PW8, the succeeding Investigation Officer took up investigation and on receipt of the forensic report and examination of witnesses, he filed a charge sheet before the Court below. Though the appellant through examination of DW1 to DW5 and marking Ex.D1 to Ex.D5 attempted to justify the receipt of bribe amount, the trial Court disbelieved the evidence of defence witness and on proper analysis of the evidence produced by the prosecution found the guilt of the accused, proved for the offences charged and convicted and sentenced him as stated above.
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16.This Court considered the rival submissions and perused the materials available on records.
17.It is seen that the District Collector, Coimbatore in Na.Ka.No.875/2003/C1 dated 10.07.2003 had alloted construction of 650 lavatories to United Community Organization in Sulur Panchayat Union, Coimbatore District by 15.08.2003. On perusal of the order, it is seen that Rs.54/- has been fixed as daily wages to the workers. The special component is for a value of Rs.13 lakhs and total rice under the scheme is 126.389 metric tons for Rs.7,14,097/-. In making payment, the supply of rice and payment of cash to be made proportionately as per the work done. The completion certificate has to be given by the appellant as Overseer. During March 2004, a completion certificate for 300 lavatories has been given and with regard to completion certificate sought for 50 lavatories during June 2004, the demand of Rs.5,000/- as illegal gratification is said to have been made by the appellant. PW2 in his complaint [Ex.P2] had stated that he is the Secretary of United Community Organization. It is seen from Ex.D2 it is one Govindasamy, who is Secretary and PW2 is neither a secretary nor Office Bearer of the United Community Organization. 14/20 http://www.judis.nic.in Crl.A.No.314 of 2011
18.PW2 admitted that the concrete rings are used for construction of lavatories. DW1 stated that PW2 had taken concrete rings for construction of lavatories. In Ex.D4, in the explanation given by the appellant to the District Collector, Coimbatore he had clearly stated that the Panchayat Union has being left with 20 concrete rings after the earlier work and PW2 agreed to purchase the same for Rs.10,000/- and use the same for construction work of lavatories. In payment of Rs.10,000/-, Rs.5,000/- was handed over to the appellant towards utilization of the concrete rings. The appellant received the same. Immediately after the trap the appellant gave an explanation to PW6 that the amount which was given by PW2 is for concrete rings and this explanation was not recorded in the recovery mahazar [Ex.P3]. PW3 and PW4 the witnesses to the recovery mahazar have stated about the appellant giving explanation immediately after the trap. PW4 further stated that the explanation has been recorded under 161 of Cr.P.C which is admitted by PW7. PW6 admits that the appellant had given an explanation since it was not acceptable, PW6 had not recorded the same. This explanation cannot be accepted, whatever may be the explanation given by the accused the same ought to have been recorded and thereafter if it is unacceptable it can be rejected or not to be considered. In this case PW3, PW4 and PW6 all categorically stated that the 15/20 http://www.judis.nic.in Crl.A.No.314 of 2011 explanation has been given by the appellant for receipt of money, but the same has not been recorded. Coupled with the fact that the appellant had sent the representation to the District Collector, Coimbatore and the same is marked as Ex.P4 on 06.12.2004 itself. PW4 admits that the appellant specifically has given an explanation that the amount received from PW2 was towards utilization of concrete rings. PW1 categorically stated that PW2 utilized the concrete rings.
19.Thus, the accused had given a clear explanation for receipt of Rs.5,000/- towards the concrete rings. The utilization of the concrete rings by PW2 is proved by DW1 and this witness has not been cross examined and his evidence stands unchallenged. DW4 stated that as per the Special Component Tender, the major portion of the payment is made by way of supply of rice and balance in cash. In this case, PW2 admits that the entire rice component 126.389 metric tonnes have been received by him much even before the completion of construction work of 650 lavatories. In this case, only 350 lavatories have been completed, on the other hand the entire rice components had been received by PW2 and the value of rice component itself is to the tune of Rs.7,14,097/-.
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20.The appellant was approached to sign the Nominal Muster Roll registers and acknowledge the unfinished work and the same was refused. In this case no Nominal Muster Roll has been produced. The appellant had filed a petition under Section 91 of Cr.P.C. and the trial Court had directed the Nominal Muster Roll to be produced and Sulur Panchayat Union submitted that Nominal Muster Roll registers had been collected and taken by the Vigilance and Anti Corruption Police and for that reason they were unable to produce the same. PW6, PW7 and PW8 the Investigating Officers, claim that they have not collected the said register is not correct. The Non production of Nominal Muster Roll Register creates serious doubt in the claim of PW2 is well founded. The Block Development Officer/DW5 admits that before the completion of construction work, the permission for receiving the rice were issued through Ex.D5, as per the order of the District Collector, Coimbatore. In this case DW4 and DW5 were listed witnesses and the prosecution failed to examine the same and thereafter, they were examined as defence witness. The withholding of Nominal Muster Roll register create doubt in the case of the prosecution.
21.Further, PW4 in his evidence clearly stated as follows:-
““/////////vjhpahdth; jhd; th';fp
itj;jpUe;j byl;hpd; fl;Ltjw;fhf ,Ue;j
17/20
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Crl.A.No.314 of 2011
fhd;fphpl; hp';if nfhtpe;jrhkp
cgnahfpj;Jptl;ljhy; mjw;Fz;lhd U/10.000-?
bjhifapy; ghjpia vd;dplk; bfhLj;jhh;
vd;W vjphp Kjhe;jpuk; Twpdhh; vd;why;
rhpjhd;/////////”
Further admits as follows:-
“.....vjphp Kjhe;jpuk; brhd;dij
vd;dplk; goj;Jf;fhd;gpj;J mij Kjy;
tprhuizapy; brhy;yntz;lhk; vd;W
brhd;djhy; ehd; Kjy; tprhuizapy;
brhy;yhky; tpl;nld; vd;why; rhpjhd;/////////”
22.PW2 is a motivated witness who had received the entire rice component even before the completion of construction of entire 650 latrines and the same has not been recorded in Nominal Muster Roll registers. The appellant had given explanation immediately during the trap which fact is admitted by PW3, PW4 and PW6 which was not recorded and coupled with Ex.D4 explanation sent to the District Collector, Coimbatore as early as on 06.12.2004 and PW1, the District Collector, Coimbatore. The sanctioning authority has not adverted to the same. 18/20 http://www.judis.nic.in Crl.A.No.314 of 2011
23.In view of the above, this Court finds the appellant had come forward with a reasonable and probable explanation and rebutted the presumption contemplated under Section 20 (1) of the Act by eliciting answers during the cross-examination from the witnesses, by placing reliance on the circumstances available on record and by examining defense witnesses and marking exhibits, thus establishing his theory of defence by preponderance of probability.
24.Hence, this Criminal Appeal is allowed. The conviction and sentence passed by the learned Special Judge and Chief Judicial Magistrate, Coimbatore in C.C.No.6 of 2005, dated 16.05.2011, are set aside and appellant is acquitted of all charges. Fine amount, if any, paid shall be refunded. The Bail Bond if any executed stands cancelled.
06.03.2020 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 19/20 http://www.judis.nic.in Crl.A.No.314 of 2011 M.NIRMAL KUMAR, J.
vv2 To
1.The Special Judge and Chief Judicial Magistrate, Coimbatore.
2.The Inspector of Police, V & AC, Coimbatore.
3.The Public Prosecutor, High Court, Madras.
PRE-DELIVERY JUDGEMENT IN Crl.A.No.314 of 2011 06.03.2020 20/20 http://www.judis.nic.in