Madras High Court
State By Inspector, Vigilance And Anti ... vs K.M. Ravi, S/O. Muthurama Reddy on 26 April, 2002
JUDGMENT Malai Subramanian, J.
1. The State has come on appeal against the order of acquittal of the respondent for offences under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act recorded by the Special Additional District Judge-cum-Chief Judicial Magistrate, Chengalpet in Special Case NO.5/93.
2. The respondent was tried on a charge that on 21.7.1992 at about 7.45 p.m., he received a sum of Rs.35,000/- towards bribe from P.W.2 for registering five sale deeds without collecting further stamp duty. The learned trial Judge after looking into the evidence of P.Ws.1 to 12 and considering Exs.P.1 to P.29 and Exs.D1 to D5 and also M.Os.1 to 5 chose to acquit the accused. Hence, this appeal.
3. P.W.5, Mr.M.K.S. Syed Ahmed Kabir is a resident of 14th Avenue, Harrington Road, Chennai. P.W.2 is his Manager. P.W.5 wanted to purchase 5 items of property situated in Survey No.63/3 and 63/1 in Paiyanur Village, Chengalpet Taluk. P.W.4, Mr. G. Nagaraja Iyer was the executant. Exs.P.2 to P.6 sale deeds were executed by P.W.4 and P.W.5 entrusted the job of registration to his Manager P.W.2. P.W.2 approached the respondent for registration of the documents and at the time of registration of documents, the respondent found that the documents were deficiently stamped and therefore, he demanded deficit stamp duty. He also wanted an Income Tax Clearance Certificate, since the sale amount exceeded Rs.2 lakhs. Even though at a later point of time, the Income Tax Clearance Certificate was handed over to the respondent, he had not cleared the registration, but kept it pending for want of Form-15. At this point of time, P.W.2 approached the respondent who demanded Rs.50,000/- initially. P.W.5 was consulted and he did not agree to pay the amount and the amount was reduced to Rs.35,000/-. On the advice of P.W.5, P.W.2 went and informed Deputy Superintendent of Police, Directorate of Vigilance and Anti Corruption Department and thereafter, P.W.11, the inspector of Police, summoned P.W.3, the official witness and in their presence Phenolphthalein Powder was applied on the currency notes to conduct test and thereafter P.W.2 was asked to go and hand over the money to the respondent.
4. P.W.2 gave the amount to the respondent at his residence on 21.7.1992 at about 7.45 p.m. Thereafter, when he came out of the house and gave signal, P.W.1 and his party went there and the amount of Rs.35,000/- was recovered from underneath the pillow on the bed which was lying over the cot in the house of the respondent. The respondent was directed to dip his fingers in the Sodium Carbonate solution which turned slightly reddish and thereafter, the amount was seized and Ex.P.17, Mahazar signed by the witnesses was prepared. P.W.11 also drew a sketch of the topography of the resident of the respondent and after enquiring the accused respondent released him on bail.
5. Subsequent investigation was taken up by P.W.12, another Inspector of Police who examined P.W.2,3 and some others and after concluding the investigation and obtaining Ex.P.1, Sanction, laid a final report against the Respondent on 22.7.1992 for offences under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. As against the case of the prosecution, the respondent took up a defence that the amount was not asked for by way of illegal gratification, but P.W.2 came with the amount to be handed over to the respondent for the purpose of excess stamp duty and in spite of the respondent asking P.W.2 to come and give it in the office, P.W.2 kept it on the teapoy and went away.
6. The learned trial Judge found that there was no evidence to prove the demand of bribe in this case and he also found that the bed sheet and the pillow cover were not seized and subjected to Phenolphthalein test. He also gave a finding that the evidence of P.W.3, the official witness is highly interested and is not believable and on these grounds, he chose to acquit the respondent.
7. It is the case of both sides that P.W.5 purchased the lands mentioned in Exs.P.2 to P.6 from P.W.4 and P.W.2 Manager of P.W.5 was involved in the registration of documents. P.W.2 in his substantive evidence has nowhere stated that the accused respondent demanded any amount by way of illegal gratification. The accused respondent being the Sub Registrar attached to Tiruporur Town was in-charge of the office of the Sub Registrar on the relevant dates. According to P.W.2, P.W.4 and his family members who were the executants of all the sale deeds were enquired by the respondent in his office as to whether they have received the sale amounts and he wanted a clearance from the income tax department, since the amount of sale exceeded Rs.2 lakhs. Since on the date of registration, the respondent found that the stamps have not been properly valued as per the guideline value and the income tax clearance certificate was also not produced, he kept the document pending and an amount of Rs.40/- was also received for the purpose of keeping the documents pending. P.W.2 goes to further say that the respondent informed him that an amount of Rs.35,000/- may be required for the purpose of stamp duty. According to P.W.2, when this fact was informed to P.W.5, he gave the address of the respondent and directed P.W.2 to go and verify as to whether additional stamp duty has to be paid. Accordingly, P.W.2, came to the residence of the respondent and questioned him. The respondent replied that they have to pay the additional stamp duty and he was prepared to give receipt for the same. When this fact was informed, P.W.5 told P.W.2 that the respondent was not demanding the amount towards additional stamp duty, but he wants an amount to be paid to him by way of bribe. Therefore, P.W.5 directed P.W.2 to go and report the matter to the Vigilance and Anti Corruption Department. On the direction of P.W.5, Ex.P.13 report was given by P.W.2. Therefore, it is not the case of P.W.2 that the accused respondent at any point of time demanded bribe.
8. P.W.2 deposed that on 21.7.1992 at about 7.30 a.m., he along with P.W.3, the official witness went to the house of the respondent and when P.W.2 informed the respondent that he was having the money as asked for, to which the respondent replied that it would be convenient for him to receive the amount and issue receipt for the same, if the same had been given at his office. P.W.2 further says that he could not come to the office and then handed over the amount saying that he will get the receipt in the office later on; but, the respondent refused to receive the amount and thereafter P.W.2 gave the amount and came out. At this stage, since he did not support the case of the prosecution, he was treated hostile. From the evidence of P.W.2, neither demand nor receipt of the amount of Rs.35,000/- towards bribe has been proved.
9. The learned Government Advocate would contend that there is the evidence of P.W.3 and P.W.11 to prove the demand and acceptance of bribe by the respondent. According to him, P.W.3 is an independent official witness and his evidence has been brushed aside by the trial Court as interested without any basis and therefore, this Court should believe the evidence of P.W.3, which corroborates the evidence of P.W.11 and the respondent should be convicted.
10. The learned counsel appearing for the respondent on the other hand contends that P.W.3 admittedly was a resident of a neighboring street where P.W.12 was residing and this shows that they were well acquainted with each other earlier and hence he is interested. He would further contend that P.W.3 has towed the line of the investigating officer in all minute parts and that would show that he is interested in securing conviction of the accused just for the sake of appeasing P.W.12.
11. On these rival contentions, the evidence of P.W.3 has to be scrutinised with a little care. P.W.3 claims to have accompanied P.W.2 and he says that when they went to the residence of the respondent, P.W.2 introduced him to the respondent as the brother in law of one Advocate Jagadeesh. It is the further evidence of P.W.3 that P.W.2 questioned the respondent as to whether any problem would arise and the respondent replied that only to avoid such problems, he demanded Rs.35,000/- towards bribe. This statement of P.W.3 stands uncorroborated by P.W.2 or any other witness. This is the only statement that is relied on by the prosecution insofar as the demand of bribe is concerned. It is the further evidence of P.W.3 that P.W.2 took away Rs.35,000/- from his pant pocket, and then it was received by the respondent with his right hand. It is his further evidence that the accused respondent counted the money and then went inside his bed room and after some time came back and said that the amount was correct. This entire piece of evidence of P.W.3 remains solo without any corroboration. Whether such a piece of evidence can be relied upon to prove the fact of demand of bribe by the accused respondent is the question to be decided at this stage. P.W.3 is admittedly a resident of the neighbouring street where P.W.12 was residing. Merely because, he was the resident of a neighbouring street, his evidence cannot be termed as interested. But the fact remains that at one point of time, his evidence shows that he was out and out inclined to support the case of the prosecution. It is evident from his statement in the Chief Examination that the accused demanded amount by way of bribe and at another place in the cross examination, he said that the respondent did not mention the word "bribe", but he took the meaning as such. The next important aspect is - P.W.3, in his cross examination would say that neither the pillow over the bed nor the bed had any cover or bed sheets. P.W.3 was examined in Court on 7.9.1994 whereas P.W.11 was examined on 14.2.1996 who even in his chief examination itself started saying that the pillow was having no cover and the bed was also not having any bed sheet. This sort of evidence was let in only to save the prosecution from the laxity of the investigation in not recovering the bed sheet or the pillow cover to be subjected to Phenolphthalein test. Therefore, to cover up such a deficiency in the investigation, the above said aspects were brought on record.
12. Under the circumstances, I am unable to accept the sole testimony of P.W.3 in the absence of corroboration from P.W.2 that the respondent accused demanded an amount of Rs.35,000/- towards bribe.
13. The main point that creates a doubt in the case of the prosecution is that the additional stamp duty comes to Rs.35,272/- and the amount of Rs.35,000/- was paid to the respondent as bribe. In case, an amount of Rs.35,000/- is not paid to the respondent towards bribe, P.Ws.2 & 5 are expected to only remit an amount of Rs.272/- more in the office of the Sub Registrar towards additional stamp duty. In what way P.W.5 or P.W.2 were going to be benefitted by parting with an amount of Rs.35,000/-? This part of the case of prosecution creates a grave doubt in the mind of the court. P.W.2 was cross examined by the prosecution and the first question put to P.W.2 by the prosecution was that since the stamps were purchased below the guideline value, the respondent demanded an amount of Rs.50,000/- to make up the deficiency and ultimately it was arrived at Rs.35,000/-. According to the prosecution even in the grounds of appeal, it is stated that the trial Court's reasoning that the explanation of the accused that the amount of Rs.35,000/- was only for additional stamp duty or value is totally incorrect, since even according to the admission of the accused as stated in page 35 of the Judgment, the stamp duty difference works out at Rs.35,272.55. Moreover, P.W.8, the District Registrar has also stated in his cross examination that the value of the property for Survey No.63/1/H is higher and for other Survey Numbers also, it should be valued at the rate in which the land in Survey No.63/1/H was valued. Therefore, the fact remains that the prosecution also is on the belief that stamp duty collected from P.W.2 was less and the excess of stamp duty amounts to Rs.35,272/-. We are unable to appreciate as to why P.W.5 or P.W.2 should hand over Rs.35,000/- towards bribe in lieu of Rs.35,272/- to be paid as a deficit stamp fee. Therefore, on this score, the prosecution case cannot be believed.
14. The learned counsel appearing for the respondent drew the attention of this Court to the ruling of Supreme Court in rendered in the case of Bal Krishan Sayal v. State of Punjab wherein the Apex Court has held as follows:
"Where in a case of bribe it was alleged that for waiver of penal rent which was found to be Rs.102/- in respect of official residence of the complainant, he offered a bribe of Rs.100/- it was held that to obtain waiver of the rent it was unlikely that a bribe of Rs.100/- would have been offered. Thus it could not be said that the offence was proved beyond reasonable doubt."
15. Coming to the evidence of P.W.3 and P.W.11 with regard to the recovery of amount of Rs.35,000/- from the residence of the respondent, the prosecution case is that the amount was recovered from underneath a pillow over the bed which was lying in the cot. None of the records including the Mahazar that were prepared contemporaneously disclose the fact that the bed was without any bed sheet and the pillow was without any cover. As held by the trial judge usually in such cases, even if the amount is recovered from the dress of the accused, the dress of the accused used to be collected to subject the same to Phenolphthalein Test. Under such circumstances non collection of the pillow cover or the bed sheet, to subject them to the test goes adverse to the prosecution. The defence case is that the respondent was coerced by the Inspector to handle the amount before he was subjected to the test. It cannot be expected from the accused to prove strictly the defence. When the accused is able to probablize his case, then a grave doubt is created in the case of the prosecution. Though P.Ws.3 & 11 would claim that the accused took away the amount from underneath the pillow even before the respondent was asked to dip his fingers in a Sodium Carbonate Solution, the respondent claims that he was asked to handle the amount which was lying on the teapoy and thereafter, this test was conducted. This is a ditch in the case of the prosecution. Even assuming that the amount has been recovered from the possession of the accused, still in the absence of the evidence of P.W.2, that the amount was given by way of bribe, conviction cannot be recorded on the evidence of P.Ws.3 & 11.
16. The learned counsel relied a few rulings to the effect that mere recovery of money and positive result of Phenolphthalein Test are not sufficient to convict him. The full bench of the Supreme Court in the case of Meena (Smt) W/o. Balwant Hemke vs. State of Maharashtra has been pleased to hold as follows:
"Mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence.
Of course, each case has to be decided on facts, but this ruling applies to the facts of the present case also, because the evidence of P.W.3 is not inspiring. In the case cited supra, the currency notes in question were not recovered from the person or from the table drawer, but by the trap party arrived, the amount was found only on the pad on the table and seized from that table only. Explanation offered in that case was when the amount was about to be thrust, he refused to receive and the same fell on the pad of the table. Here also, the respondent has come out with a defence that the amount was found only over the teapoy and that had been placed by P.W.2. without his knowledge and he came to know about the same only when the raiding party came to his residence. This evidence could not be disputed especially because of the failure on the part of the investigating officer in recovering the pillow cover or the bed sheet to confirm the recovery from that particular place i.e. in between the pillow and bed. Insofar as the evidence of P.W.3 is concerned, the learned counsel submits that his evidence should not be believed and rather relied upon for the purpose of conviction on the sole ground that he formed part of a raiding party and that he is not an independent witness. Of course, the witness associated himself with the raiding part being an official witness is asked to accompany as decoy witness only to see the demand and acceptance of bribe by the accused concern, but subsequently, when nothing is about to be recovered from the accused, naturally as in all cases independent witnesses are required.
17. The Supreme Court in the case of Som Prakash v. State of Punjab has ruled that the witnesses who form part of the raiding party were not independent and the evidence regarding handing over of the money to the appellant being unbelievable the conviction of the appellant cannot be sustained. This ruling was rendered on the facts of that case.
18. The learned Government Advocate draws the attention of this Court to a ruling of the Supreme Court reported in 1998 Crl.L.J.863 (Supreme Court) rendered in the case of State of U.P. v. Zakaullah wherein the Apex Court has held as follows:
The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever. Hazari Lal v. Delhi Administration, .
19. This is not a case where a convicted accused has come on appeal against his conviction and sentence. While disturbing an order of acquittal recorded by the trial Judge, this Court has to be very much circumscribed and if two views are possible, one which is lenient towards the accused should be taken. Always, it is the bounden duty of the prosecution to prove the case beyond all reasonable doubt. This is a case where P.W.2 the decoy witness did not support either the case of demand of bribe or receipt of bribe. Secondly, the investigating agency failed to seize the materials namely, the bed sheet and the pillow cover and subject them to Phenolphthalein Test to prove whether the tainted money was actually kept underneath the pillow cover. Thirdly, and basically whether any person will be prepared to give a bribe of Rs.35,000/- for the sake of avoiding an additional stamp duty of Rs.35,272/-. On these aspects, I do not find it as a fit case where the order of acquittal recorded by the trial Court has to be dislodged.
20. In the result, there is no merit in the appeal and the appeal is accordingly dismissed.