Madras High Court
Vaithiyanathan M vs The State Of Tamil Nadu on 1 December, 2021
Author: R.Pongiappan
Bench: R. Pongiappan
Crl.A.(MD) No.9 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.08.2021
Pronounced on : 01.12.2021
CORAM
THE HON'BLE MR.JUSTICE R. PONGIAPPAN
Criminal Appeal (MD) No.9 of 2016
Vaithiyanathan M ... Appellant/ Sole Accused
-vs-
The State of Tamil Nadu
Rep. by the Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Tirunelveli District.
(Crime No.3 of 2001) ... Respondent/Complainant
Criminal Appeal filed under Section 374 (2) of the Code of Criminal
Procedure, to set aside the conviction and sentence passed by the learned
learned Special Judge for Trial of Prevention of Corruption Act Cases,
Tirunelveli, dated 18.12.2015 in S.C.No.2 of 2014.
For Appellant : Mr.I.Subramanian, Sr. Counsel
for Mr.R.Anand
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (Crl.Side)
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https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.9 of 2016
JUDGMENT
The present appeal has been filed by the appellant against the judgment passed in S.C.No.2 of 2014 dated 18.12.2015, on the file of the learned Special Judge for Trial of Prevention of Corruption Act Cases, Tirunelveli.
2. The appellant is the accused in Special Case No.2 of 2014 on the file of the learned Special Judge for Trial of Prevention of Corruption Act Cases, Tirunelveli. He stood charged for the offence punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The trial Court by judgment dated 18.02.2015, came to the conclusion that the appellant is guilty under sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. Accordingly, he was convicted under Section 7 of the Act, and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for five months. Further, he has been convicted under Section 13(2) r/w 13(1)(d) of the Act, and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for five months. Challenging the said 2/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 conviction and sentence, the appellant has come out with the present Criminal Appeal.
3. The case of the prosecution in brief is as follows:
(i) PW2-Poovendran is the resident of Pannayangurichi Village.
PW9-Murugan is his relative, residing in the same village. Apart from the regular work, PW9 indulged in some social work wherein, he helped the poor and needy people. In the year 1998, the people residing in Pannayangurichi, who belonged to Pallar and Arunthathiyar community presented a petition before the Tahsildar, wherein they prayed to issue patta. Thinking that the women residing in the village are having the priority, PW2, through his wife PW18-Kamala submitted an application under Ex.P23, wherein also he prayed for issuance of patta.
(ii) The applications presented by those people were dealt with appellant's pre-predecessors viz. Jesuraj [PW8] and Subramanian [PW21]. After the appellant took charge as Harijan Welfare Tahsildhar, PW2 and PW9 approached the appellant and Head Clerk Alagiri and requested to take action, but no action was taken on their applications. On 14.02.2001, at 3/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 about 12.30pm when PW2 and PW9 came to the office of the Special Tahsildar, Adi Dravidar Welfare, Cheranmadevi, met the Head Clerk Alagiri @ Alagirisamy and informed that no action was taken on the applications submitted for free house site patta. In this regard, the said Alagiri demanded to give Rs.1000/- for taking further action.
(iii) Therefore, PW2 and PW9 met the appellant and informed him about what Alagiri said. To this, the appellant also told to PW2 and PW9 that without giving money, steps cannot be taken for giving free house site patta, further, the appellant demands the PW2 and PW9 to give Rs.1,000/- to him.
(iv) Again on 26.02.2001, at about 11.15am PW2 and PW9 went to the Special Tahsildar Office, Cheranmahadevi, wherein the said Alarigi was not available. Hence, they met the appellant and after informing him that the applicants are poor, pleaded to issue free house site patta. At that time also the appellant/accused demanded Rs.1000/- as illegal gratification and directed to settle Rs.500/- to Head Clerk Alagiri and asked them to come tomorrow with the demanded money. Afterwards PW2 lodged a complaint 4/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 under Ex.P2 before PW10, Deputy Superintendent of Police, Vigilance and Anti Corruption and thereupon PW10 registered a case in Cr.No.3 of 2001 and the printed copy of the FIR was marked as Ex.P28.
(v) After registering the FIR, trap was arranged by PW10. Two Government servants viz., Sankaranarayanan [PW3] and Kandasamy [PW7] were called to stand as witnesses. The trap laying officer introduced PW3 and PW7, who are witnesses to the complainants PW2 and PW9. During such time, PW10 prepared the Entrustment Mahazar, under Ex.P3. Further the same has been prepared in his office and after preparing the entrustment Mahazar, the trap procedure was clearly explained by the PW10 to the witnesses PW2, PW3, PW7 and PW9. Afterwards, four Fifty Rupees currency notes and thirteen Hundred Rupees currency notes with their respective numbers were handed over to PW2 after smearing with phenolphthalein powder. Thereafter, on the same day after the instructions of the Trap Laying Officer, PW2, PW3, PW7, PW9 and PW10 along with police party went near the office of the Special Tahsildar, Cheranmahadevi. At about 10.20am PW10 instructed PW2, PW3 and PW9 to go to the office of the appellant and act according to the instructions given by him. 5/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Thereafter, PW2, PW3 and PW9 went into the office of the appellant/accused at 10.30 or 10.45am and came out of the office of the appellant at about 11.00am and signalled PW7 and PW10 that the appellant/accused had demanded and accepted the illegal gratification and later PW2 identified the accused to PW10.
(vi) After identifying the appellant/accused, PW10 introduced himself, to the appellant. He also introduced PW3 and PW7 and other police officers. After the said introduction, he conducted phenolphthalein test on the hands of the appellant and proved positive. PW10 questioned about the money received from PW2, for which the appellant with his right hand took 10 x 100 and placed it over the table which was verified with entrustment mahazar in the presence of PW3 and PW7 and phenolphthalein test was also conducted with the appellant's front shirt pocket, which also proved positive.
(vii) PW10 seized the currency notes, 3 bottles with tested solutions and shirt of the appellant. Apart from the above seizure, PW10 also seized 6/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Rs.17/- from the shirt outer pocket and Rs.1510/- from his inner shirt pocket, five more appellant's personal records and eight office records. Afterwards, PW22-Joseph and PW23-S.S.Manickarao continued the investigation, examined the witnesses and obtained a sanction. PW23 filed the final report holding that the accused is liable to be convicted under Sections 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
4. Based on the above materials, the trial Court framed the appropriate charges as detailed in the 2nd paragraph of this judgment. When the appellant was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, the prosecution examined as many as 24 witnesses [PW1 to PW24] and 28 documents were exhibited [Ex.P1 to Ex.P28], besides 5 material objects [M.O.1 to M.O.5].
5. Out of the said witnesses, PW1-Sunil Paliwal, is the District Collector, Tirunelveli, spoken about the issuance of sanction order. 7/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016
(ii) PW2-S.Poovendran is the de facto complainant, speaks about the demand as well as acceptance of illegal gratification and about the trap proceedings.
(iii) PW3-R.Shankaranarayanan, who is the shadow witness and one of the two trap witnesses, had spoken about the receipt of bribe.
(iv) PW4-Balakrishnan, is the then Revenue Inspector at the office of the Special Tahsildar, Adi Dravidar Welfare, Cheranmahadevi between May 1998 and 01.07.1999. He had spoken about the closing of file in Ex.P9 on 23.11.1999 and about PW2's wife, who is ineligible for getting free house site patta.
(v) PW5-P.Selvin and PW6-N.Suyambulingam, are the Village Administrative Officers, had given evidence that no decision was taken about the land to be given to the beneficiaries.
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(vi) PW7-A.Kandasmay, one of the two shadow witnesses, spoken about the occurrence as during the time of trap, he was near to the appellant's office, along with the trap laying party.
(vii) PW8-S.Jesuraj, the then Special Tahsildar, Adi-Dravidar Welfare, Cheranmahadevi, has given evidence that the file relates to the land acquisition, was closed on 23.11.1999.
(viii) PW9-V.Murugan, who is the cousin brother of PW2, gave evidence in respect to the trap.
(ix) PW10-R.Perumalsamy, Deputy Superintendent of Police/Trap Laying Officer, spoken about the registration of the crime and about the trap proceedings.
(x) PW11-Ganesasubramanian, is the Revenue Inspector, working in the office of the appellant. He did not give any evidence in support of the case of the prosecution.
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(xi) PW12 – S.Arjunan, worked as Revenue Sub Inspector at the office of the Special Tahsildar, Adi-Dravidar Welfare, Cheranmahadevi, between 04.01.1999 and 31.07.2001, speaks about the closing of file and also about the proposed beneficiaries themselves not wanting the lands in a certain survey number.
(xii) PW13-Narambu, working as Junior Assistant in the office of the appellant gave evidence as that when at the time the alleged trap was conducted, the appellant was in other duties.
(xiii) PW14-R.Karupasamy, working as Office Assistant at the office of the Special Tahsildar, Adi Dravidar Welfare, Cheranmahadevi, has also not supported the case of the prosecution.
(xiv) PW15-Parvathy, PW16-Mallika, PW17-Mariammal and PW18- P.Kamala are the applicants, sought free patta, spoken about the presentation of applications for free house site patta. 10/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016
(xv) PW19-A.Natarajan, the Court staff speaks about the requisition given by the investigation officer and about the sending of Material Objects for chemical examination.
(xvi) PW20-Kasturibai, is the Assistant Director of Forensic Science Department, spoken about the examination conducted on the material object which were recovered during the time of investigation.
(xvii) PW21-Subramanian, was working as Special Tahsildar, Adi Dravidar Welfare, Cheranmahadevi for the period between 07.01.1999 and 13.04.2000 speaks about the closing of the file, which pertains to the land acquisition, relates to the land required by PW2 and others.
(xviii) PW22-A.Joseph, is the investigation officer, who took over the investigation in Crime No.3 of 2001 on 27.02.2001, spoken about the investigation conducted.
(xvix) PW23-S.S.Manicka Rao, is the investigation officer, spoken about the examination of witnesses and about the filing of final report. 11/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 (xx) PW24-A.Ramachandran, the retired Revenue Divisional Officer, gave evidence in respect of free house site patta in issue.
6. When the trial Court examined the appellant under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not chose to examine any witnesses nor exhibited any documents on his side.
7. However, the appellant filed a statement wherein he has stated that on the alleged day, he is not present in the office and he did not know PW2 and PW9. He has further stated that no such application seeking issuance of free house site patta is pending with him. While at the time he is prepared to go to the District Revenue Officer's office, PW2 entered into his chamber and inserted the recovered amount in his pocket and at the same time the police officials came and arrested him. According to him, he did not receive the tainted money and he did not handover the same to the police.
8. Having considered all the above materials, the trial Court came to the conclusion that the appellant is guilty under Sections 7 and 13(2) r/w 12/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 13(1)(d) of the Prevention of Corruption Act and convicted and sentenced him as stated in paragraph No.2 of the judgment. That is how, the appellant is now before this Court with this Criminal Appeal.
9. I have heard Mr.I.Subramanian, learned senior counsel appearing on behalf of the appellant and Mr.E.Antony Sahaya Prabahar, the learned Government Advocate (Crl. Side), appearing for the respondent and also perused the records carefully.
10. The first and foremost submission made by the learned senior counsel appearing for the appellant is that PW1 who is the competent authority granting sanction to prosecute the appellant, during the time of granting sanction, without applying his mind and without clarifying the details of the other accused viz., Alagiri, mechanically acted upon the requisition given by the prosecution authority and the same is sufficient to disbelieve the case of the prosecution.
11. In this regard, the learned Government Advocate (Crl. Side) appearing for the respondent police would contend that though in the First 13/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Information Report, one Alagiri was added as 2nd appellant, requisition was submitted to PW1 only in respect to the present appellant and that therefore, including the said Alagiri as accused or not is the discretion of the investigation officer and therefore, it cannot be said that PW1, being the sanctioning authority, without applying his mind, granted sanction to prosecute the present appellant.
12. Now, considering the either side submission with relevant records, it is true that in Ex.P28-FIR, one Alagiri was added as 2 nd accused along with the present appellant. Further, the said FIR has been registered against him for the offence under sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. In otherwise, after concluding the investigation, final report has been filed only against the present appellant and not against the said Alagiri. In respect of the deletion of the said Alagiri, no reason has been assigned in the final report. However, it is the general rule, under chapter XII, Code of Criminal Procedure, only the investigation officer is having the power to decide the issue as to whether a particular person was involved in the alleged occurrence or not. In this regard, this Court while at the time of disposing Crl.O.P.No.9727 of 2020 14/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 on 14.09.2020, (T.Kumaran Vs. State and Ors, reported in MANU/TN/5883/2020) observed as follows:
“ 5.An enquiry into a non cognizable offence or a cognizable offence is the unfettered powers of the Investigation Officers so long as the power to investigate/enquire into these offences are legitimately exercised within the frame work of Chapter XII of the Code of Criminal Procedure. Though the Code of Criminal Procedure empowers the Magistrate to be a guardian in all the stages of the police investigation, there is no power envisaging him to interfere with the actual investigation or the mode of investigation.”
13. Therefore, I am of the view that non mentioning of the reason for not adding the said Alagiri as accused, in no way would affect the order of sanction. Further, while at the time of submitting the application for sanction, the investigation officer supplied the materials only in respect to the present appellant and not against the Alagiri. Apart from that, the sanctioning authority while at the time of giving evidence as PW1, given evidence as the requisition was given only in respect to the present appellant, further, he specifically stated before the trial Court that only after the subjective satisfaction, he granted a sanction. Therefore, the first submission made by the appellant counsel would not falsify the case of the prosecution in any way.
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14. Secondly, the learned counsel for the appellant would contend that in respect to the alleged demand dated 14.02.2001 and 26.02.2001, PW2 and PW9, gave false evidence that they met the appellant in the morning hours. On the other hand in respect to the presence of the appellant in his office, PW13 gave evidence as on 14.02.2001, the appellant had gone to Tirunelveli to meet the District Revenue Officer and returned only in the afternoon. Further, as regards 26.02.2001, he gave evidence as the appellant had gone to meet the Government Advocate at Ambasamudram Sub Court at 10.00am and returned only by 3.00pm. Therefore, the evidence given by PW2 and PW9 in respect to the presence of the appellant in his office is entirely a false one and as such, we have to decide that no demand was made on 14.02.2001 and 26.02.2001.
15. In this regard, the learned Government Advocate (Crl. Side) would submit that though PW13 gave evidence as above, the entries made in the register will prove the fact that the appellant was present in his office as stated by PW2 and PW9.
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16. Now, on considering the said submission with relevant records, it is true, PW13 in his chief examination gave evidence as stated by the appellant's counsel, on the other hand, he held that the register maintained in the appellant's office reflects that the appellant came to the office at 11.00am on 14.02.2001. Therefore, in respect to the presence of appellant on 14.02.2001, the evidence given by PW13 is found against the entries made in the register maintained in regular course. Therefore, the said evidence given by the said PW13, cannot be accepted.
17. In respect to the presence of appellant on 26.02.2001, PW13 given evidence that on 26.02.2001, the appellant has returned to his office only at 3.00pm. On the other hand, both PW2 and PW9 falsely claim that they met the appellant at 11.15am and therefore, in respect to the presence of appellant in his office on 26.02.2001, there was a contradictory evidence available in the case of the prosecution. However, being the reason that the present case has been tried before the trial Court upon the evidence given in respect to the trap proceedings, further for the reason that evidence discloses the fact that PW3 and PW7 were present at the time of trap proceedings, this 17/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Court cannot come to the conclusion that the accused is not present in his office as alleged by the defence. Accordingly, the second submission made by the appellant also went against the appellant.
18. The next submission of the appellant would be that the purpose for which the alleged bribe was demanded was improbable. According to him, the file pertaining to free house site patta was closed long before the alleged demand was made and only due to the reason that since the file was closed much earlier, PW2 and PW9 who are all ineligible person for obtaining patta pressurized the appellant to initiate proceedings for land acquisition and since the same was refused by the appellant, they lodged a false case against the appellant and in view of the same, they gave a false evidence as the appellant demanded to pay Rs.1000/- as bribe.
19. Per contra, the learned Government Advocate (Crl. Side) would submit that since the evidence pertains to the trap proceedings are all in favour of the prosecution, it cannot be said that no demand has been made by the appellant. He would further submit that though the file relating to the Free House site patta was closed in 1999, the same was reopened and kept 18/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 pending, which is evident through the evidence of PW24–A.Ramachandran, a retired District Revenue Officer.
20. Now, on considering the said submissions, first we should decide whether PW2 is having enmity over the appellant. In this regard, it is the case of the prosecution that PW2, gave an application through his wife, wherein he prayed the appellant to issue a free house site patta. In otherwise, PW2 in his cross examination admitted that he was already granted a free house site patta, wherein he constructed a house i.e., Door No.7/112 and only in the said house his family was residing. In otherwise, in respect to the eligibility, PW1, who is the Collector of the District, gave evidence in his cross examination that in the event, either the husband or the wife are having any land or otherwise, if they are already provided with the free house site patta, then they are not eligible for getting the free house site patta. Accordingly, the said evidence given by PW2 and PW1 narrates the fact that PW2 is an ineligible person for availing the free house site patta.
21. After knowing the same, PW2 submitted another application through his wife wherein also he prayed to issue one another patta, which is 19/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 against the rules contemplated. Therefore, in the said circumstances if the appellant has refused to recommend his name, automatically PW2 would develop enemity against the appellant.
22. Now, on going through the evidence in respect of the closing of the file, PW13-Narambu, who is the Junior Assistant working in the appellant's office gave evidence in his cross examination as follows:
“K:K:/97-98 1650-99 Mfpa nfhg;g[fs; Kiwna
24/11/99. 25/01/2001 Mfpa njjpfspy; nfhg;g[fs;
Kof;fg;gl;Ls;sd/ ,e;j nfhg;g[fs; jhd;
gidad;Fwpr;rpia nru;e;j g{nte;jpud;. KUfd; kw;Wk;
gadhspfSf;F Mjp jpuhtplu;fSf;F ,ytr tPlL
;
kid gl;lh tH';FtJ rk;ge;jkhf nfhg;g[fshFk;/
14/02/01ypUe;J 26/02/01 tiu gidad;Fwpr;rp
fpuhkj;ij nru;e;j g{nte;jpud;. KUfd;
rk;ge;jgl;l ,ytr kid gl;l tH';f nfl;l
kDf;fs; ml';fpa nfhg;g[fs; vJt[k;
epYitapy; ,y;iy/”
23. Further, in respect to the closing of the file, PW8–Jesuraj, who is the then Tahsildar, Adi Dravidar Welfare gave evidence as on 23.11.1999 itself the file Mu.Mu.97/98 was closed and the same was reflected in Ex.P9. More than that, PW15-Parvathy, one of the applicant, who submitted an 20/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 application for free house site patta, has admitted in her cross examination as application submitted by PW2 was closed by one Tahsildar viz., Subramanian on 23.11.1999 itself.
24. Further, PW21-Subramanian, the Tahsildhar, who closed the file gave evidence as in 1999 itself, the file relates to the land which was required by PW2 and PW9 was closed and kept in the record room.
25. Therefore the said evidences given by PW8, PW13, and PW15, would reveal the fact that on the day of occurrence, no such file relating to the applications given by PW2 and PW9 was maintained in the appellant's office and therefore, it cannot be said that the appellant made demand for issuing free house site patta.
26. Though, PW24-A.Ramachandran, who is the retired District Revenue Officer, gave evidence in respect to the case of the prosecution, the said evidence is in respect to Ex.P10 alone and not in respect of Ex.P9. Here it is a case, PW2 and PW9, who are the sufferers gave evidence as when at the time application was presented before the Collector, the 21/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Collector informed them that the present officer i.e. the appellant would take necessary steps for acquiring the land. After giving evidence as such, in order to substantiate the same, no material has been exhibited by the investigation officer as the file was reopened. At most the endorsement made by the Collector for reopening the land acquisition proceedings are not produced. Accordingly, in this aspect the evidence put forth by the prosecution creates a doubt whether the alleged demand was made for complying with the request.
27. At the outset, I should say as rightly pointed out by the learned senior counsel appearing for the appellant, in a case of this nature, where punishment is so stringent, the proof should be very strict. Keeping in mind its fundamental principle, let us now look into the evidence let in.
28. The term 'remuneration' as defined in the Act, would mean that something done in consideration. If only the accused had been in a position to do some favour and for doing such favour, if the accused had received the amount, it will amount to remuneration and such a remuneration might have to be termed as 'illegal gratification'. Here it is a case, the evidence given by 22/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 PW8, PW13 and PW15 would probabilise, the fact that though the appellant received bribe from PW2, he is not in a position to do any consideration in favour of the applicants. Accordingly, the evidence given by the prosecution creates a doubt whether the present case has been registered for the instance narrated by PW2.
29. One another important aspect which has to be decided in this case is that as per the case of the prosecution, while at the time of giving bribe, PW2, PW3 and PW9, all jointly entered into the office of the appellant.
30. In this regard, the categorical evidence given by PW2 is that, after the receipt of the amount, the appellant asked PW2 about the PW3 as “ who is he?” In such a situation, though PW3 was treated as a hostile witness, before treating him as a hostile witness, he gave evidence as previous to the occurrence he had met the appellant for some other official purpose. If such evidence is a true one, the question of asking the whereabouts of PW3 does not arise to the accused. Further, PW3, in his cross examination admitted as while at the time PW2 gave the bribe to the appellant, he was outside only. The said stand itself evaluate the fact that whether the alleged trap had 23/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 happened as per the evidence given by PW2 and PW9 or not.
31. Yet another aspect, which is necessary to be decided in this case is that after the trap proceedings, the Trap Laying Officer has to examine the accused immediately and record the statement. If such practice is not followed, the same is sufficient to disbelieve the case of the prosecution. In this regard, in a judgment in P.Palraj Vs. State, rep. By Inspector of Police, Vigilance and Anti-Corruption Wing, Thoothukudi, reported in 2012 (3) MWN (Cr.) 380 this Court has held as follows:
“13. It is the 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 procedures. P.W.7, the Trap Laying Officer did not examine the appellant after the arrest as to his explanation for the possession of money. The tainted money was not recovered from the possession of the appellant, but from P.W.5. In this context, it is advantageous to extract the provision available under Rule 47 of DVAC Manual which reads as follows:
"47. Questioning of Accused Officer (1) Questioning of the Accused Officer and recovery of the bribe money should be after the phenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer's statement, if any. In this event, the provisions of Section 27 the Indian Evidence Act would be available to the prosecution.24/30
https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 (2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary under Section 162 the Code of Criminal Procedure, 1973. If there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No.33979/VAC-4/76, dated 10th December, 1976]"
The failure on the part of the Trap Laying Officer to record statement from the accused immediately after the arrest would vitiate the entire proceedings.”
32. In the said occasion, in respect to the following of the said procedure, PW10, R.Perumalsamy, who is the Trap Laying Officer gave evidence as no such statement has been recorded under Section 47 of DAVC Manual. On the other hand, PW22-Joseph, who is also one of the investigation officer in this case has given evidence as he had seen the statement given by the accused in CD file. He gave further evidence as on 26.02.2001 itself PW10-Perumalsamy recorded the statement from the accused, but the same has not been forwarded to the Court.
33. The said evidence is a crucial area to turn the case of the prosecution as 25/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 whether the story put forth by the accused is true or not. If really the case of the prosecution is on the true fact, it is not necessary for the prosecuting agency to suppress the said statement.
34. In the said circumstances, while at the time of examining the accused under Section 313 Cr.P.C., he gave a statement as, before the trap, PW2 entered into his chamber and inserted the bribe money in his pocket and immediately thereafter, PW10 Perumalsamy came into the chambers.
35. Now, on considering the said statement with the contradiction found in the evidence given by the investigation officer, it shows some materials were suppressed by the prosecution, which create a doubt over the case of the prosecution. Thus great prejudice has been caused to the appellant as it is a version that the tainted money was trusted into his shirt pocket by PW2.
36. At this juncture, its is useful to see the judgment in V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150, wherein our Hon'ble Apex Court in paragraph Nos.19 to 21, held as follows:
19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of 26/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 Kerala (2009) 3 SCC 779, it was held as under:-
"18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
20. In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.
21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.
Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but 27/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act.
While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
37. Accordingly, by applying the ratio laid down in the above referred judgment to the case in hand, herein also before the trial Court, the prosecution agency did not create a circumstance for considering the explanation offered by the accused by recording the statement from him. Therefore, the inconsistency arisen in the evidence given by the prosecution in respect to the presence of accused in his office on 26.02.2001, the evidence given by the PW3 and non producing the statement given by the accused immediately after the trap, are all the issues which would create a 28/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 doubt and the same necessarily goes in favour of the accused and therefore, I am of the opinion that the prosecution has not proved the case beyond reasonable doubt and hence, the accused is entitled for acquittal.
38. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed upon the accused, by the learned Special Judge for trial of Prevention of Corruption Act Cases, Tirunelveli, in S.C.No.2 of 2014 dated 18.12.2015, is set aside. The accused is acquitted of all charges. Bail bond executed, if any, shall stand terminated. Fine amount paid, if any, is directed to be refunded to the accused.
01.12.2021 Speaking/Non-speaking order Index: Yes / No ars 29/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.9 of 2016 R.PONGIAPPAN, J.
ars To
1. The Special Judge, Special Court under Prevention of Corruption Act, Tirunelveli.
2. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Tirunelveli District.
3. The Public Prosecutor, High Court, Madras.
Crl. Appeal (MD) No.9 of 2016
01.12.2021 30/30 https://www.mhc.tn.gov.in/judis