Madras High Court
Abdul Kathar vs State Represented By on 5 October, 2018
Author: R. Tharani
Bench: R. Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 24.04.2018 DELIVERED ON : 05.10.2018 DATED: 05.10.2018 CORAM THE HONOURABLE MRS. JUSTICE R. THARANI Crl.A.(MD) No.320 of 2007 Abdul Kathar ... Appellant vs. State represented by Inspector of Police, Vigilence and Anti-corruption, Nagercoil, Crime No.1 of 2002, Kanyakumari District. ... Respondent Prayer:- Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, to call for the records from the lower Court (Special - Judge-cum-Chief Judicial Magistrate, Nagercoil, Kanyakumari District) and to set aside the Judgment of the lower Court by acquitting the appellant in Special Case No.1/2003 dated 26.06.2007 on the file of the Special -Judge- cum-Chief Judicial Magistrate, Nagercoil, Kanyakumari District. !For Appellant : Mr.V.Kathirvelu, Senior Counsel For Mr.K.Prabhu ^For Respondent : Mr.Chandrasekar Additional Public Prosecutor :JUDGMENT
Heard Mr.V.Kathirvelu, learned Senior counsel for Mr.K.Prabhu, learned counsel appearing for the appellant and Mr.Chandrasekar, learned Additional Public Prosecutor appearing for the respondent.
2.This appeal has been filed to set aside the Judgment in Special Case No.1/2003 dated 26.06.2007, on the file of the Special-Judge-cum-Chief Judicial Magistrate, Nagercoil, Kanyakumari District. The appellant was convicted for an offence under Section 7 of the Prevention of Corruption Act, 1988, the appellant was sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs.10,000/- (Rupees Ten Thousand only) in default to undergo rigorous imprisonment for one year, and for the offence under Section 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988, the appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand only) in default to undergo rigorous imprisonment for one year.
3.The charge against the appellant is that from 05.10.1998 till 08.01.2002, he worked as the Sub-Registrar in Rajamangalam. While the appellant was working there, on December 2001, the complainant approached the appellant for a copy of a document registered as No.2224/1101. The appellant demanded a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) for issuing Certified copy of the said document and on 18.12.2001 at about 02.00 p.m., when the complainant visited the appellant in his office and handed over a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) the appellant issued a receipt only for a sum of Rs.581/- (Rupees Five Hundred and Eighty One only) and he has demanded a further sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) stating that the document was in malayalam and that the Certificate was to be made ready with the help of a person knowing malayalam and asked her to come back again on 28.12.2001 with the amount. On 28.12.2001, when the complainant approached the appellant without the said amount, he demanded a sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) to be paid on or before 08.01.2002. On complaint, FIR was registered. A trap was laid. On 08.01.2002 at about 04.50 p.m., at Rajamankalam Sub Registrar Office, the appellant received a sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only). After enquiry, chargesheet was filed against the appellant for receiving illegal gratification which is punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention and Corruption Act, 1988.
4.After examining the witnesses and on perusing the records, the Special Judge-cum-Chief Judicial Magistrate, Nagercoil, Kanyakumari District found the appellant guilty under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention and Corruption Act, 1988. The appellant was convicted and was sentenced to undergo rigorous imprisonment for a period of five years and also imposed a fine of Rs.10,000/- (Rupees Ten Thousand only) in default to undergo rigorous imprisonment for a period of one year for the offence under Section 7 of the Prevention and Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for a period of five years and also imposed a fine of Rs.10,000/- (Rupees Ten Thousand only) in default to undergo rigorous imprisonment of one year for the offence under Section 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988.
5.12 witnesses were examined and two documents and two M.Os. are marked on the side of the respondent. It is stated that the appellant worked as a Sub-Registrar in Rajamangalam. The appellant demanded a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) for furnishing Certified copy of the said document and on 18.12.2001 at about 02.00 p.m., the complainant visited the appellant in his office and handed over a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only), the appellant issued a receipt only for a sum of Rs.581/- (Rupees Five Hundred and Eighty One only) and demanded a further sum of Rs.4,500/- (Rupees Four Hundred and Five Hundred only) to be paid on 28.12.2001. On 28.12.2001, the complainant did not take any amount with her and the accused demanded her to bring the amount on 08.01.2002. The complaint gave a complaint and FIR was registered on 08.01.2002.
6.On the side of the appellant, it is stated that the case of the prosecution is that the appellant has demanded bribe in the first week of December 2001. P.W.2 has not approached the respondent on that occasion. It is further stated that on 18.12.2001, again the appellant demanded and received a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) and the appellant is stated to have given receipt only for Rs.581/- (Rupees Five Hundred and Eighty One only). Even at that time, the complainant did not come forward to file a complaint. It is stated that the appellant after receiving Rs.1,500/-(Rupees One Thousand and Five Hundred only) on 18.12.2001 has demanded a further amount of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) from the complainant to be paid on 28.12.2001. No complaint was given on 18.12.2011.
7.On the side of the appellant, It is further stated that on 28.12.2001, when the complainant approached the appellant without money again he demanded Rs.4,500/- (Rupees Four Thousand and Five Hundred only). Complaint was not given on that date by the complainant. Even on 28.12.2001, the complainant did not come forward to file a complaint and that the delay in filing the complaint is fatal to the prosecution. It is further stated that if the appellant demanded bribe, he might have asked for Rs.6,000/- (Rupees Six Thousand only) at the first instance instead of first asking a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) and then asking another sum of Rs.4,500/- (Rupees Four Thousand and Five Hundred only) and that the demand of bribe is not proved by the prosecution.
8.On the side of the appellant, it is stated that except P.W.2 no one has deposed regarding the demand that was made on 18.12.2001 and on 28.12.2001. P.W.11 has deposed that P.W.2 did not produce any document to show that there was a demand on 18.12.2001.
9.On the side of the respondent, it is stated that P.W.3 is an Official witness and that before P.W.3, the accused has demanded whether P.W.2 had brought the amount demanded by him and that the prosecution has proved that the appellant demanded bribe.
10.On the side of the appellant, it is stated that P.W.3 is a trap witness and his evidence cannot be considered by this Court. The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of T.M.Shanmughavelu and Another v. State rep. By reported in (2011) 3 MLJ (Crl.) 481, which reads as follows:
?Trap witness cannot be considered as independent witness as he forms part of raiding party ? Prosecution miserably failed to prove demand of illegal gratification said to have been made by A1 in order to attract offences alleged against accused.?
11.P.W.2 has deposed that the demand was made on 18.12.2001. She has not lodged any complaint on that date. The demand of Rs.1,500/- (Rupees One Thousand and Five Hundred only) on 18.12.2001 is not proved. Except the evidence of P.W.2, there is no other evidence to prove the payment of Rs.1,500/- (Rupees One Thousand and Five Hundred only) and for receiving of Rs.1,500/- (Rupees One Thousand and Five Hundred only) by the appellant. Even after the payment of Rs.1,500/-, P.W.2 did not lodged the complaint. Why the defacto complainant did not lodge the complaint on 18.12.2001 is not explained by the prosecution. It is further stated that on 18.12.2001 itself the appellant made another demand for Rs.4,500/- to be paid on 28.12.2001. Again on 28.12.2001, when the defacto complainant approached the appellant, he demanded Rs.4,500/- to be paid on 08.01.2002 for these two demands dated 18.12.2001 and 28.12.2001, there is no evidence except the oral evidence of P.W.2. Hence, it is decided that 'demand' is not proved by the prosecution.
12.On the side of the appellant, it is stated that the acceptance of bribe amount is not proved by the prosecution and that P.W.2 has stated that he approached the appellant only on 08.01.2002 and he has not approached the appellant from 28.12.2001 till 08.01.2002 and this delay is not explained by the prosecution. It is further stated that P.W.2 has deposed that she and one Steven approached the accused to give him the tainted currency notes. The witness Steven was not examined by the prosecution.
13.On the side of the appellant, it is stated that P.W.2 has deposed that herself and Steven went out of the office after giving the tainted notes. P.W.3 has stated that P.W.2 alone has gone out. The evidence of P.W.2 is contrary to the evidence of P.W.3. P.W.2 has deposed that she went away after handing over the tainted currency notes to the appellant. Contrary to her own version, P.W.2 has deposed that she came out of the Office and again she entered into the Office to identify the accused. P.W.11 has deposed that P.W.2 after going out from the office did not enter the office again. The evidence of P.W.11 contradict the evidence of P.Ws.2 and 3. On the side of the appellant, it is stated that receipt of illegal gratification is not proved by the prosecution.
14.The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of R.Muthusamy v. State reported in 2011 (1) MWN (Cr.) 145, which reads as follows:
?Evidence regarding demand of bribe amount not corroborated ? evidence regarding acceptance of bribe also found to be doubtful ? Following Apex Court in Ganapathy Sanya Naik, held, not safe to convict Accused.?
15.On the side of the respondent, it is stated that recovery of bribe amount is proved by the prosecution witness and that the evidence of P.Ws.2 and 3 corroborates each other regarding the receiving of illegal gratification and the minor contradiction regarding the evidence of P.W.2 in respect of the accused placing the amount under the table cloth did not affect the prosecution case because P.W.2 was examined only after three years from the date of occurrence only, and that the contradiction in the evidence of P.W.2 may be due to the lapse of time.
16.On the side of the appellant, it is stated that P.W.2 has deposed that the appellant on receiving the illegal gratification amount with his right hand placed the amount inside the table cloth. P.W.3 has deposed that the appellant on receiving the illegal gratification amount had placed the amount on the left side of the table and that the evidence of P.Ws.2 and 3 reveals that the accused placed the amount on the table and the fact reveals that the appellant has no intention of hiding the amount as he was not getting any illegal gratification. On the side of the respondent, it is stated that this trivial discrepancies are not affecting the case of the prosecution.
17.The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of T.S.Ramasamy v. State of TamilNadu reported in 1994 Crl. L. J.545, which reads as follows:
?Evidence of eye witness not acceptable- Non filing of sketch of place of occurrence showing place where accused and trap witnesses were found when accused was trapped ? Necessary sanction to prosecute, not obtained?
18.On the side of the appellant, it is stated that as per the evidence of P.W.5, the trap proceedings was over by 04.45 p.m., whereas P.W.6 has deposed that trap proceedings was over by 02.00 p.m itself. On the side of the respondent, it is stated that it is a minor contradiction which will not affect the main case of the prosecution.
19.On the side of the appellant, it is stated that P.W.3 has deposed that trap laying team gets some water from the kitchen in the Sub Register Office and that P.W.11 has deposed that the water was supplied from the dinning room of the Sub Registrar office whereas P.W.4 has deposed that there is no kitchen in the Sub Registrar office and there is contradiction between the evidence of P.W.3 and P.W.4.
20.On the side of the respondent, it is stated that when there is acceptance of the money. There is no necessity for the prosecution to prove the demand or the motive. There is presumption under Section 20 of the P.C. Act and the onus is upon the accused to prove that he is innocent.
21.On the side of the prosecution, it is stated that the evidence of P.Ws.3 and 5 corroborates the evidence of P.W.2. There is no animosity for the complainant or for the investigation agency to register a case against the accused and the burden is only upon the appellant to prove that he is innocent. At the time of arrest, it is the duty of the accused to explain the source for the amount and the lower Court has discussed all the points in a detailed manner and there is no necessity to interfere in the Judgment passed by the lower Court.
22.The learned counsel appearing for the respondent relied on the Judgment passed by the Gujarat High Court in the case of Pulachand Ambalal Patel v. State of Gujarat in Criminal Appeal No.1368 of 1999, which reads as follows:
?When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
Once the said premise is established the inference to be drawn is that the said gratification was accepted ?as motive or reward? for doing or forbearing to do any official act.
When amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused. It was not found anywhere that there was animosity between the complainant and appellant and therefore, said false complaint was registered against the appellant?
23.The learned counsel appearing for the respondent relied on the Judgment passed by the Karnataka High Court in the case of State of Karnataka v. Sri C. Chand Saheb, which reads as follows:
?there is presumption under Section 20 of the Prevention of Corruption Act and it has to be justifiably invoked in the present case?
24.The learned counsel appearing for the respondent relied on the Judgment passed by the Supreme Court in the case of Sri C. I. Emden v. State of U.P, which reads as follows:
?That being so it is not necessary in the present appeal to decide the question about the nature of the onus of proof cast upon the accused by Section 4(1) after the statutory presumption is raised against him.?
25.On the side of the appellant, it is argued that mere recovery is insufficient to prove the guilt of the accused. The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of A.Venkatachalam and Another v. State reported in 2011(3) MLJ 372, which reads as follows:
?Mere possession of tainted money is not enough to prove the guilt in the absence of proof of demand and acceptance of money as illegal gratification.?
26.On the side of the appellant, it is stated that P.W.1, who is the Sanctioning Authority, has stated in his report that he has perused the FIR copy chemical reports and other documents and has passed an order dated 01.10.2002. He has admitted in his cross examination that only on the request of the respondents, he has passed the sanctioning order which reveals that only on the direction of the respondents without applying his mind, P.W.1 has passed the sanctioning order.
27.On the side of the appellant, it is stated that P.W.1 has deposed that he was satisfied with the chemical reports and other documents but what are the documents analyzed by him were not stated or discussed in the sanctioning order. It is further stated that in the sanctioning order, P.W.1 has stated that he has perused the statement of the accused but no such statement is produced before the Court and that itself reveals that the sanctioning order is defective.
28.On the side of the appellant, it is stated that the statement of the accused mentioned in the sanctioning order is not produced before the Court. The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of P. Palraj v. State rep. By in Criminal Appeal(MD)No.246 of 2008, which reads as follows:
?It is bounden duty of the Trap Laying Officer to examine the accused immediately after the arrest at the place of trap and failure in following the rule would vitiate the procedure.?
29.The learned counsel appearing for the appellant relied on the Judgment passed by this Court in the case of N.Gunasekaran and Others v. State reported in (2010) 3 MLJ (Crl.) 242, which reads as follows:
?That the Court below ought to have arrived at a conclusion that the prosecution case was not proved beyond reasonable doubt and acquitted all the accused persons giving benefit of doubt and that therefore, the Judgment of the Court below convicting the accused persons for the offences with which they stood charged is infirm and defective liable to be corrected, reversed and set aside by this Court in exercise of its appellate powers.?
30.It is stated that P.W.4 has deposed that if the Certified copy of malayalam document is required that requisition cannot be rejected and proper procedure is to address the higher officials for engaging the malayalam knowing person to copy the script. He has further deposed that no such letter is addressed to the higher officials from the Sub Registrar Office. P.W.8 has deposed that he was appointed in the Sub Registrar office to prepare the malayalam script from 17.01.2002 to 23.01.2002. P.W.7 has deposed that he has appointed a staff to prepare these documents and the order is marked as Ex.P12. The deputation of P.W.8 is after the date of complaint.
31.On the side of the respondent, it is stated that P.W.8 has deposed that he worked in the Sub Registrar Office from 1997 till 2004 and he know reading and writing in malayalam and that the contention of the appellant that he received the amount for engaging an outsider to prepare Certified copy of malayalam document is wrong and that the accused has failed to prove that the staff of the Sub Registrar Office at that time did not know malayalam.
32.P.W.5 has deposed that one watchman approached her to write the document in malayalam and she went to the Sub Registrar office and she wrote 10 pages of a document and she got Rs.100/- (Rupees One Hundred only) and bus fare for her work. On the side of the respondent, it is stated that those 10 pages are recovered by the Police and that from the evidence of P.W.5, it is clear that the document was prepared by some other person other than the staff of the Sub Registrar office.
33.On the side of the respondent, it is stated that P.W.1 who is working in the same office has deposed that the petition for Certified copy is to be filed before P.W.2. P.W.4 has deposed that no letter was sent to the higher official for engaging a malayalam knowing person for preparing the Certified copy of the document which was in malayalam script. It is further stated that P.W.2 has admitted that the appellant demanded amount for giving it to an outsider, who knows malayalam to prepare the certified copy of the document. It is further pointed out that P.W.5 has deposed that he was engaged for writing copy of a document which is in malayalam and he was paid for the same.
34.On the side of the appellant, it is stated that the Investigating Officer was not given the authority to investigate this case and no documents authorizing the Investigating Officer to investigate the matter is filed by the respondent.
35.On the side of the appellant, it is stated that in Ex.P2, P.W.2 has put her signature in blue ink in the front page and in the back page the signature is in black ink and this creates doubt regarding Ex.P2.
36.The defacto complainant has deposed that the document has to be copied by a malayalam knowing person and that the accused demanded Rs.4,500/- (Rupees Four Thousand and Five Hundred only) for engaging such a person. P.W.5 has deposed that he received Rs.100/- (Rupees Hundred only) and bus fare for coping 10 pages of a malayalam document. The evidence of P.Ws.7 and 8 reveals that no malayalam knowing person was working at the Sub Registrar Office at that time. The malayalam knowing person P.W.8 was engaging only after the case was registered and not at the time of the occurrence.
37.There are contradictions in the evidence of P.Ws.2 and 3 as to the fact where the accused kept the amount after the receipt of the same. The prosecution has failed to prove the place where the amount was kept and has failed to prepare the sketch regarding the occurrence spot. The inordinate delay in lodging the complaint is not properly explained. The prosecution has failed to prove that the investigation Officer is duly authorised to investigate this case. There is a doubt regarding the sanction order as the statement of the accused was not recorded or filed before the Court.
38.Mere recovery is not sufficient to prove the guilty of the appellant. The demand is not proved. Except the oral evidence of P.W.2, there is no evidence to prove the demand of illegal gratification. Why P.W.2 has not lodged the complaint at the first instance also creates some doubt. If at all the appellant is at fault, it is only for engaging a third person for taking the copy of the malayalam script when no body else is available in the office for doing that work. When the demand is not proved, mere recovery is insufficient. The judgments cited on the side of the appellant are squarely applicable to this case. The prosecution has failed to prove the quilt of the accused beyond reasonable doubts. Hence, the Judgment of the lower Court is to be set aside and the appellant is found not guilty of the charges alleged against him and the Criminal appeal is allowed. Bail bonds if any executed, shall stand cancelled. The fine amount if any paid by the appellants shall be refunded.
To
1.The Principal District and Sessions Judge, Nagercoil.
2.The Special Judge cum Chief Judicial Magistrate, Nagercoil, Kanyakumari District.
3.The District Collector, Madurai.
4.The Director General of Police, Chennai.
5.The Superintendent of Police, Nagercoil.
6.The Inspector of Police, Vigilence and Anti-corruption, Nagercoil.
7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
8.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
.