Madras High Court
Rama. Palaniappan vs State Through on 28 September, 2020
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A(MD)No.24 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A(MD)No.24 of 2012
Rama. Palaniappan ... Appellant/Accused
Vs.
State through
the Inspector of Police,
Vigilance and Anticorruption,
Sivagangai.
[Crime No.11 of 2002] ...Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of
Criminal Procedure Code to call for the records from the
trial Court and set aside the judgment of the learned
Special Judge (Prevention of Corruption Act Cases),
Madurai in Spl.C.C.No.20 of 2011, dated 10.02.2012, allow
this appeal and acquit the appellant.
For Appellant : Mr.S.Ravi
For Respondent : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor
JUDGMENT
The appellant/ first accused was tried along with two others before Special Court for Trial of Cases under the Prevention of Corruption Act Madurai in Spl.C.C.No.20 of 2011.
http://www.judis.nic.in 1/65 Crl.A(MD)No.24 of 2012
2.The Special Court framed charges against the accused, examined witnesses and by its judgment dated 10.01.2012 found this appellant guilty, for the offence charged and found the other two accused not guilty. The charges framed as against the accused, the findings and the sentence of the trial Court are as follows:
Accused Charge Findings of the trial Court Rank framed under Section First Sections 7 Found guilty under Sections 7 Accused and 13(2) and 13(2) r/w 13(1)(d) of the r/w 13(1)(d) Prevention of Corruption Act, of the 1988 , convicted and sentenced Prevention to undergo each one year of rigourous imprisonment and to Corruption pay Rs.1,000/- as fine, in Act, 1998 default, to undergo one month simple imprisonment.
Second Sections 7 Not found guilty under
Accused and 13(2) Sections 7 and 13(2) r/w 13(1)
r/w 13(1)(d) (d) of the Prevention of
of the Corruption Act, 1988.
Prevention
of
Corruption
Act, 1988
Third 3Sections 7 Not found guilty under
Accused and 13(2) Sections 7 and 13(2) r/w 13(1)
r/w 13(1)(d) (d) of the Prevention of
of the Corruption Act, 1988.
Prevention
of
Corruption
Act, 1988
http://www.judis.nic.in
2/65
Crl.A(MD)No.24 of 2012
3.As against the judgment of conviction and
sentence imposed by the trial Court, the appellant/first accused preferred the present appeal. However, the State has not filed any appeal as against the order of acquittal passed in respect of second and third accused.
4.The brief case of the prosecution is as follows:
i.PW3 Jeyabal is the Correspondent of Mary Ann Matriculation School, Madurai, with an intention to develop a layout and for constructing a School at Park town, Madurai, approached one Kothai @ Jeyakothaiammal, Vice Chancellor, Mother Therasa University, owner of the land in survey No. 9/3B and survey No.13/4B of Anaiyur Village, which falls in Park Town area. The said Jeyakothaiammal inherited the properties from her mother one Muthukrishnammal, by way of a registered Will on 01.12.1978. Her mother, Muthukrishnammal, wife of late Sivasubramaniam Pillai, purchased the properties from one Sannasi by way of a registered sale deed in Document No. 2216 of 1934 dated 19.11.1934. The said Sannasi sold this land by a registered deed in the year 1934 on his behalf and on behalf of his minor sons. The property is a self acquired property, purchased by Sannasi along with his http://www.judis.nic.in 3/65 Crl.A(MD)No.24 of 2012 brother Chinnannan, from one Rajagopala Iyer in the year 1920 by a registered document and the brothers have partitioned the property by a registered deed in No.1259 dated 09.07.1929 and the properties in Survey Nos.9/3B and 13/4B of Anaiyur Village were allotted to Sannasi. PW3 Jeyabal has obtained the power in his name and his brother's son's name for constructing a school and for layout purposes from the land owner Jeyakothaiammal on 26.06.2002 and the power deed is marked as ExP5.
ii. After obtaining the power, he also constructed a shed and dug a borewell and also appointed a watchman to the property. In the meantime, one Karmegam, S/o.Sannasi, resident of Anaiyur, Madurai filed a petition before the Tahsildar, Madurai North that the properties in survey Nos.9/3B and 13/4B measuring to an extent of 2 acres and 45 cents are his ancestral properties and during the UDR, the patta has been wrongly made in the name of one Jeyakothaiammal and requested to change the patta in his name in a Jamabandhi. The Tahsildar, Madurai North/ Jamabandhi Officer ordered for an enquiry on that petition and accordingly, the Village Administrative Officer of Anaiyur submitted a report before the Tashildar that the http://www.judis.nic.in 4/65 Crl.A(MD)No.24 of 2012 applicant is having certain documents in the year 1920, however, the patta stands in the name of Jeyakothaiammal and accordingly, the Tahsildar, Madurai North, the appellant/first accused ordered for a joint patta in the name of Karmegam along with Jeyakothaiammal on 10.05.2002. The said Karmegam gave another petition to this Tahsildar [appellant/first accused] to cancel the patta in the name of Jeyakothaiammal and to issue an individual patta in his name alone. Accordingly, the Tahsildar by his proceedings in Ni.Mu/RDR/1723/2002-2003 dated 13.07.2002 ordered for an individual patta by deleting the name of the said Jeyakothaiammal from patta No.108 and directed to issue patta for survey Nos.9/3B and 13/4B, in the name of Karmegam.
iii.On 21.08.2002, around 10 persons went to the land in dispute and created problem with the Watchman that the said lands belong to Karmegam. Therefore, PW3 the power holder preferred a complaint before the Oomatchikulam Police Station, Madurai District and the same was treated as petition enquiry in CSR No.454 of 2002 on 23.08.2002. The said Karmegam has also presented a counter petition as against the Power agent namely Jeyabal http://www.judis.nic.in 5/65 Crl.A(MD)No.24 of 2012 [PW3] before the Deputy Inspector General of Police, Madurai and therefore, on the direction of the Inspector of Police, Oomatchikulam, PW3 along with PW4 attended an enquiry conducted by the DIG.
iv.Since both parties have produced patta for these properties in their names, the Deputy Inspector General of Police, directed both the parties to obtain a certificate from the Tahsildar, Madurai North on the genuineness of the patta produced by them. Accordingly, on 05.09.2002, PW3 along with his Advocate Murugesan [PW4] and the representative of owner of the land one Dr.Padrinarayanan [PW6] (brother's son of Jeyakothaiammal) met the appellant/ first accused in his office and produced the documents in their favour. The appellant / first accused asked them to meet him after a week and in the meantime he would verify the records in his office. As per his directions, PW3 and PW4 went and met the appellant / accused officer again on 13.09.2002. The appellant/accused officer admitted that though the documents are in their favour, mistakenly the patta was cancelled and issued in the name of the said Karmegam and demanded a sum of Rs.50,000/- for correcting the same as http://www.judis.nic.in 6/65 Crl.A(MD)No.24 of 2012 Rs.20,000/- for him and as Rs.30,000/- for the Revenue Divisional Officer.
v.PW3 expressed his displeasure for the demand made by the first accused and for which, the first accused insisted that otherwise he has to wait for another six months to one year for changing the patta. Thereafter, the accused officer reduced the demand to Rs.20,000/- for himself and Rs.20,000/- for the RDO and only after receipt of the money, he would send the report for cancellation of patta to the RDO. After four days, PW3 contacted the appellant/first accused officer over phone, the accused officer insisted that only on payment of the demanded money, he would send his report for change of patta.
vi.Since PW3 did not wish to pay the bribe as demanded by the accused officer, went to the Vigilance and Anti Corruption Wing, Madurai and preferred a written complaint in ExP3 on 18.09.2002 at about 3.00pm to one Sreenivasagam, Deputy Superintendent of Police, Vigilance and Anticorruption Wing, Madurai. He, on receipt of complaint [ExP3] from PW3, verified the genuineness of the complaint and the complainant. Thereafter, Mutharasu http://www.judis.nic.in 7/65 Crl.A(MD)No.24 of 2012 [PW11] registered a case in Crime No.11 of 2002 on 18.09.2002 against the first accused and one Ananthasayanam, Revenue Divisional Officer for the offence under section 7 of the Prevention of Corruption Act, 1988. The printed First Information Report is marked as ExP12.
vii. The DSP, for laying a trap, requested for two official witnesses namely PW5 Rajendran, then Assistant Executive Engineer, Tamilnadu Electricity Board and one Devageorge, Divisional Engineer, Highways Department and they also reported before the DSP. The DSP explained them about the significance of the sodium carbonate test. PW5 and Devageorge enquired with PW3 and PW4 about the complaint. PW3 produced a sum of Rs.40,000/- meant for paying to the accused, the same was entered in the entrustment mahazar [ExP4]. Phenolphthalein powder was smeared on the currencies and the same was handed over to PW4. PW4 was instructed by the DSP to go to the office of the first accused along with PW5 Rajendran and only on demand, he has to hand over the tainted money to the accused. If the accused accepts the money, he should show the pre-arranged signal to the Police officers. They also prepared the entrustment mahazar [ExP4] at his office about 06.30P.M. http://www.judis.nic.in 8/65 Crl.A(MD)No.24 of 2012 viii.PW4 and PW5 left to the office of the accused in a two wheeler belonging to PW4 and the Police party followed them in an ambulance. At about 06.45 P.M, on 18.09.2002 both PW4 and PW5 went inside the office of the first accused. The first accused was on his seat and a meeting was going on there. On noticing PW4, the first accused asked PW4, whether he brought money, for which PW4 replied in affirmative. The first accused took PW4 and PW5 to the office of the RDO. In front of RDO's office, the first accused asked and received a sum of Rs.40,000/- from PW4. Out of which, he has taken out Rs.20,000/-, placed the same in his pants pocket and kept the remaining Rs.20,000/- in a cover received from PW4 and proceeded to meet the second accused. The first accused informed the second accused / P.A to RDO that for patta transfer, they brought money. The second accused asked the first accused to hand over the same to the third accused /an Assistant in the RDO's Office. The third accused received the cover containing a sum of Rs.20,000/- from the first accused and kept it in his pocket. The first accused, PW4 and PW5 came out of the office of RDO. Subsequently, PW4 showed the prearranged signal to the Police party. PW4, PW5 and the first accused reached the office of the first accused. The http://www.judis.nic.in 9/65 Crl.A(MD)No.24 of 2012 DSP along with his team came to the office of the first accused, where PW4 identified the first accused to the Police and left the office.
ix. The DSP/TLO took the first accused and PW5 to the office of RDO, where the second and third accused were identified to the Police and the Police party left to the office of the first accused after putting the second and third accused under custody. PW7 / Additional P.A to the District Collector was requested by the DSP to assist him in the process.
x. The DSP also conducted phenolphthalein test on the hands of the first accused and both hands of the first accused turned into pink in colour. On enquiry, the first accused handed over a sum of Rs.20,000/- from his pants pocket. The pants pocket of the first accused was also subjected to phenolphthalein test and it turned into pink in colour. The currencies recovered from the first accused were verified with the entrustment mahazar [ExP4] and it was tallied. The first accused was enquired and he produced a sum of Rs.8,900/-, which according to him was repaid by his friend. All the above said currencies were http://www.judis.nic.in 10/65 Crl.A(MD)No.24 of 2012 recovered under a recovery mahazar [ExP6].
xi. Thereafter DSP along with PW5 and PW7 went to the office of the RDO, where he enquired the second and third accused. The phenolphthalein tests were conducted on the hands of the third accused, but, the solution colour had not changed. The third accused handed over a cover containing a sum of Rs.20,000/- and it tallied with the serial numbers 41 to 80 noted in the entrustment mahazar [ExP4]. The second accused handed over a sum of Rs. 3,500/- saying that it is his personal money, which was meant for paying the school fees for his son and telephone bill. The amounts were recovered under recovery mahazar [ExP7]. The accused were arrested and remanded to judicial custody. Mr.Srinivasagam, TLO died before trial and therefore, he was not examined as a witness.
xii. PW12, after taking over the enquiry and after completing the investigation, filed the final report against the three accused for the offences punishable under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act.
http://www.judis.nic.in 11/65 Crl.A(MD)No.24 of 2012
5.During the trial, the prosecution has examined 12 witnesses and marked 12 exhibits, besides 7 material objects in support of their case.
6.The available prosecution evidence are PW1 is Mr.Rajandren, I.A.S., the then District Collector, Madurai who accorded sanction [ExP1] for prosecuting the appellant and the accused No.2; PW2 Ayyanar is the then District Revenue Officer, who accorded sanction [ExP2] for prosecuting the third accused; PW3 Jeyabal is the complainant, who lodged the complaint [ExP1] and also a witness to the entrustment mahazar [ExP4] and power holder of the land in dispute; PW4 Murugesan is an Advocate of PW3, who accompanied PW3 to the office of the first accused and handed over the tainted money to the first accused on behalf of the complainant PW3; PW5 Rajendran is the then Assistant Executive Engineer, TNEB, shadow witness, who accompanied PW4 to the office of the first accused during the trap and also a witness to the recovery mahazars ExP6 and ExP7; PW6 Dr.Badrinarayanan is the brother's son of JeyaKothaiammal, who visited the office of the first accused along with PW3 and PW4 on 05.09.2002; PW7 Srinivasan, then Additional P.A.to District Collector http://www.judis.nic.in 12/65 Crl.A(MD)No.24 of 2012 is a witness to the recovery mahazars ExP6 and ExP7; PW8 Rabi Ranjith Kumar, then Assistant at the office of the RDO, has prepared the report ExP9 and through him ExP8 the file relating to Na.Ka.No.18112/2002/H3 Anaiyur, Part I has been recovered; PW9 Krishnan, is the then Tahsildar, through him Tax receipt books [ExP10 series] were marked; PW10 is the Scientific Assistant, who conducted the analysis on the material objects and issued ExP11 Scientific Analysis report; PW11 Mutharasu, Inspector of Police, Vigilance and Anticorruption, who was present along with DSP Srinivasagam [TLO] at the time of Trap and he speaks about the registration of FIR and the trap laid by them; PW12 Kumarasamy, DSP is the Investigation Officer, who conducted the investigation and filed the final report.
7.After completion of the prosecution side evidence, the incriminating circumstances were put before all the accused under Section 313 CrPC and the accused denied the same as false. Though the accused have stated that there are witnesses, they did not examine any witness and did not mark any exhibit on their side. http://www.judis.nic.in 13/65 Crl.A(MD)No.24 of 2012
8.The trial Court, after completion of the trial, though acquitted the second and third accused, found the appellant/ first accused guilty, convicted and sentenced as stated supra. As against the conviction and sentence, the appellant has preferred the present appeal. But the State has not preferred any appeal as against the order of acquittal passed in respect of the second and third accused.
9.Heard Mr.S.Ravi, the learned Counsel for the appellant/ first accused and Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor appearing for the State.
10.When the matter was taken up for hearing on 13.11.2018, a representation was made by the learned Counsel for the appellant that the typed set of papers were not served upon him and subsequently, the Registry has also served the typed set of papers to the learned Counsel for the appellant on 06.12.2018 and on the request of the learned Counsel for the appellant, the appeal was listed for hearing on 13.12.2018. On 13.12.2018, in order to avoid proceeding with the appeal, a memo was filed stating that the learned Counsel for the appellant is http://www.judis.nic.in 14/65 Crl.A(MD)No.24 of 2012 withdrawing the Vakalath and therefore, this Court by order dated 13.12.2018 directed the Registry to remove the name of the learned Counsel for the appellant and to print the name of the appellant in the cause list.
11.On 14.12.2018 the matter was listed in the name of the appellant, but there was no representation on behalf of the appellant and therefore, this Court after hearing the learned Additional Public Prosecutor, posted the case for final disposal on 17.12.2018. Even on 17.12.2018, there was no representation for the appellant and therefore, this Court proceeded with the available materials on record and passed the judgment on merits on 17.12.2018. Challenging the judgment dated 17.12.2018, the appellant has also preferred an appeal before the Hon'ble Apex Court and the Hon'ble Apex Court by its judgment dated 14.10.2019 remanded the matter for fresh consideration, after hearing the appellant and other parties.
12. Accordingly, the appeal was listed for hearing on 18.02.2020 and a new learned counsel Mr.Anand C Rajesh, entered appearance and undertook to proceed with the http://www.judis.nic.in 15/65 Crl.A(MD)No.24 of 2012 appeal. On 03.03.2020 a further representation was made on behalf of the appellant that the present Counsel has also given change of Vakalath and handed over the bundle to the appellant and therefore, this Court by order dated 03.03.2020 issued Non Bailable Warrant of arrest as against the appellant and posted this appeal on 09.03.2020. Thereafter, the appeal was listed on 16.03.2020, 18.03.2020 and 20.06.2020 and even after repeated listing of the appeal, neither the appellant appeared nor any counsel represented on his behalf.
13.This Court on 08.07.2020 directed the appearance of the Deputy Superintendent of Police, Vigilance and Anticorruption, for not executing the warrant for the past several months and only thereafter, the appellant came forward through the present Counsel to proceed with the appeal and finally the appeal was heard on 26.08.2020.
14.This is a glaring case, how the proceedings under the Prevention of Corruption Act cases can be dragged on for years together. In this case, the occurrence has taken place in the year 2002 and till 2020, http://www.judis.nic.in 16/65 Crl.A(MD)No.24 of 2012 it has not attained any finality. The accused has successfully evaded the proceedings for 18 long years and still he is having an appeal remedy. This delay, in fact, emboldened the accused to commit the offences without any fear.
15.Mr.S.Ravi, learned Counsel for the appellant in support of the appeal has raised the following grounds:
i) The sanction [ExP1] is not a valid one and the same has been accorded without any application of mind.
The sanctioning authority [PW1] admitted in his cross examination that he did not peruse the complaint of PW3 given before the Oomatchikulam Police Station. But in the sanction order, he has recorded that PW3 preferred the complaint against one Karmegam. The fact remains that the complaint was made only as against 10 unknown persons and not against said Karmegam. The sanctioning authority in his sanction order admitted that the appellant/first accused has already sent the report dated 13.09.2002 to the RDO.
http://www.judis.nic.in 17/65 Crl.A(MD)No.24 of 2012
ii) The appellant/Tahsildar is not the competent authority for transferring the patta. The Revenue Divisional Officer is the competent authority. An FIR is also registered against the RDO. But the final report was not filed against the said RDO and the investigation agency has not assigned any reason for deleting the RDO's name.
iii) The appellant is only a recommending authority and he has also completed his work by recommending for transfer of patta, even before the initial demand and without ascertaining the same, the sanctioning authority [PW1] gave his sanction in a mechanical manner.
iv) The genesis of the case is on the complaint of PW3 before the Oomatchikulam Police Station as against Karmegam and 10 others, but this complaint lodged by PW3 before the Oomatchikulam Police Station was not placed before the trial Court. Similarly, a counter complaint was preferred by the said Karmegam against PW3 and others and the same was also not recovered and placed before the Court. Further, the Inspector of Police, Oomatchikulam http://www.judis.nic.in 18/65 Crl.A(MD)No.24 of 2012 Police Station, who conducted the investigation on the complaint of PW3 and Karmegam was not examined by the prosecution.
v) Based on certain records produced by Karmegam, the appellant has ordered for transferring the patta in favour of Karmegam and therefore, the complainant with a grudge to wreck vengeance against this appellant, has foisted this false complaint. He also submitted that the initial demand, according to the prosecution, was on 13.09.2002 at about 7.00am, but even before the said demand, this appellant/first accused has completed his work and forwarded his report in favour of PW3 to the RDO, but the same was also not considered by the sanctioning authority as well as by the trial Court.
vi) PW8, who prepared the report of this appellant / first accused in ExP9 on 13.09.2002, admitted in his evidence that on the direction of the appellant/accused, he prepared the document ExP9 on 13.09.2002 at about 4.30pm, whereas, the alleged demand was only at about 7.00pm. The demand is sine qua non to constitute an offence, but the same is absent in this case. Even before http://www.judis.nic.in 19/65 Crl.A(MD)No.24 of 2012 the alleged demand on 13.09.2002, the appellant prepared the report in favour of PW3 and the subsequent demand on 17.09.2002 is over a mobile phone, but the investigation agency has not collected the call details to establish the subsequent demand made by the appellant/accused on 17.09.2002.
vii) The shadow witness, who accompanied PW3 admitted in his evidence that the money was paid in two covers. PW12, the Investigation Officer has also admitted in his evidence that two covers were recovered by the Police, but those covers were not placed before the Court and therefore, the demand on 18.09.2002 is also not established by the prosecution.
viii) Mere recovery of money in the absence of demand would not give rise to the presumption under Section 20 of the Prevention of Corruption Act. In this case, the official favour on the part of the first accused was completed even before the initial demand. Further the phenolphthalein test was not conducted on the first accused immediately. In this case, the prosecution did not conduct any test immediately but on the other hand, the http://www.judis.nic.in 20/65 Crl.A(MD)No.24 of 2012 appellant was taken to the office of the RDO by the Deputy Superintendent of Police along with PW5 and thereafter brought back to the first accused office and conducted phenolphthalein test. Therefore there is every possibility for the Police officers rubbing their hands with the first accused and passing on the phenolphthalein particles into the hands of the appellant and on his pants pocket.
ix) In order to make out the presumption under section 20 of the Act, the prosecution must prove the demand, purpose of demand and voluntary acceptance. In this case, the prosecution has not even established the basic facts of the prosecution and it mainly relies on the mere recovery from the accused by invoking the presumption under section 20 of the Act.
x) The presumption contemplated under section 20 of the Act is not an inviolable one. The accused can rebut the presumption either through cross examination of the witnesses or by adducing reliable evidence and offering explanation under section 313 CrPC. The burden of proof placed on the accused is that the accused can prove a preponderance of probability in his favour. According to http://www.judis.nic.in 21/65 Crl.A(MD)No.24 of 2012 PW5, the bribe was divided into two parts and thereafter kept in two covers, which cut through the entire case projected by the prosecution. Further PW12 the Investigating Officer also admitted that the above said two covers were seized by them but not produced before the court for the reasons best known to them. The above conduct of the prosecution raises serious doubt over the case of the prosecution. In this case the first accused established that even prior to the initial demand, the official duty was duly performed and the demand on 13.09.2002, 17.09.2002 and on 18.09.2002 was not established. The above aspects clearly establishes that the accused rebutted the presumption contemplated under section 20 of Prevention of Corruption Act by eliciting the relevant evidence during the cross examination and the prosecution failed to establish its case beyond all reasonable doubts.
xi) Moreover, the charge framed by the trial court is defective. As per the charge framed in this case, the bribe amount was demanded for the purpose of changing the patta in the name of PW4 Murugesan. But, it is not the case of the prosecution at all.
http://www.judis.nic.in 22/65 Crl.A(MD)No.24 of 2012
xii) The final report filed in this case reveals that in order to recommend to the RDO for cancelling the patta granted in favour of Karmegam, the appellant/first accused said to have demanded money. The above said official act was done by the accused as early as on 13.09.2002 itself. The evidence adduced by the prosecution clearly shows that it is the Revenue Divisional Officer, who alone has the power to transfer patta. The accused was tried for a totally different allegation for which no charge was framed at all. The entire trial is vitiated due to the defect in the charge. Therefore, the appellant/accused was totally misled by the particulars of the offence and the manner of the alleged commission of the offence provided in the charge framed, which has occasioned failure of justice, since he was misled on his defence.
xiii) There is a delay in preferring the complaint. The initial demand was made on 13.09.2002 at about 07.00 P.M. According to PW3, on that day itself he decided not to pay the bribe. But he did not lodge any complaint immediately and waited till 18.09.2002. There is no explanation as to why PW3 waited for 5 days to lodge http://www.judis.nic.in 23/65 Crl.A(MD)No.24 of 2012 the complaint. Further ExP12 First Information Report was registered on 18.09.2002 at about 03.00 P.M. But, the FIR reached the learned Chief Judicial Magistrate, Madurai only at about 06.30 P.M on 18.09.2002. The distance between the vigilance office and the court is less than a kilometer.
xiv) There is a contradiction among the witnesses as to the preparation of the complaint ExP3, since PW3 claims that he wrote the complaint [ExP3] and PW4 claims that he alone wrote the complaint [ExP3] at PW3’s school. Though both PW3 and PW4 admitted that patta can be cancelled only by the RDO, they did not approach the RDO.
xv) The reasons assigned by the trial court by disbelieving the evidences of PW4 and PW5 to acquit second and third accused are equally applicable to the appellant/ first accused also. Therefore, the learned Counsel prayed for allowing this appeal.
16.Per contra, the learned Additional Public Prosecutor appearing for the State submitted that though in the charge it is mentioned as Murugesan, a specific http://www.judis.nic.in 24/65 Crl.A(MD)No.24 of 2012 question was asked to the accused officer, he understood the charge and denied the same and as such, there is no prejudice caused to the appellant.
17.Insofar as the ground raised by the appellant that the particulars of the prior incidents were not placed before the Court is concerned, the learned Additional Public Prosecutor submitted that what to be proved by the prosecution is how the Tahsildar / first accused demanded money, received the money on extraneous consideration and therefore, the materials mentioned by the appellant would not affect the case in any way, when the demand and acceptance is proved by the prosecution beyond any reasonable doubt.
18.The learned Additional Pubic Prosecutor further submitted that the complaint lodged by PW3 before the Oomatchikulam Police Station has been mentioned in the report [ExP9] of the first accused itself. He further submitted that insofar as the claim made by the appellant that he has sent his recommendation to the RDO before 13.09.2002 and therefore, there is no need for the demand on 13.09.2002 is concerned, PW8 Ravi Ranjith Kumar http://www.judis.nic.in 25/65 Crl.A(MD)No.24 of 2012 has admitted that the report was not having the details as to the date and proceedings number and therefore, the claim made by the appellant in this regard cannot be accepted.
19.The learned Additional Public Prosecutor further submitted that during the trial, Mr.Sreenivasagam, DSP / TLO was no more and therefore, PW11 Inspector of Police, who accompanied the said DSP, was examined and he admitted that the files were recovered on the date of the trap from the accused officer. Since the DSP was no more, the said files were not marked before the Court.
20.He further submitted that even accepting the case of the appellant that the demand on 17.09.2002 is not proved, the initial demand made by the first accused on 13.09.2002 and the reiterated demand on the date of trap, ie.,on 18.09.2002 has been established through the witnesses PW3, PW4 and PW5. The acceptance of the bribe money is proved by the prosecution through the witnesses PW4 and PW5 official witness and the recovery of the bribe money from the first accused is proved through the witnesses PW3, PW5 and PW7 and therefore, the prosecution has proved its case beyond reasonable doubt. http://www.judis.nic.in 26/65 Crl.A(MD)No.24 of 2012
21.The sanctioning authority only after perusing the materials placed before him, accorded sanction and he has to satisfy only whether prima facie material is available to prosecute the accused and therefore, the ground that PW1 accorded sanction without any application of mind is not sustainable.
22.Insofar as the ground that there are contradictions in preferring the complaint [ExP3] is concerned, he submitted that PW3 did not say that he wrote the complaint but he only said that he prepared the complaint and therefore, such a ground is not acceptable.
23.Since the prosecution has proved the demand, acceptance and recovery in this case, the presumption under Section 20 will come into play and the appellant has also not rebutted the presumption. Therefore, he prays for dismissal of this appeal.
24.This Court has paid its anxious consideration to the rival submissions made on either side and also perused the materials placed on record. http://www.judis.nic.in 27/65 Crl.A(MD)No.24 of 2012
25.In this case, the appellant/first accused was found guilty for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.
26.To constitute an offence under the provision of the Prevention of Corruption Act, the accused must be a public servant, as defined under Section 2(c) of the Prevention of Corruption Act and he must have obtained or accepted or attempted to obtain from any person, an undue advantage with an intention or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant.
27.Any public servant by corrupt or illegal means, or by abusing his official position obtains for himself or for any other person, any valuable thing or pecuniary advantage is said to have committed the offence under Section 13(1)(d) of the Prevention of Corruption Act. The demand, acceptance and the recovery are the necessary ingredients to be established by the prosecution to make out a case against a public servant. When a public servant accepts or obtains any undue advantage from any person, http://www.judis.nic.in 28/65 Crl.A(MD)No.24 of 2012 the presumption under Section 20 of the Act is against the said public servant.
28. Demand:
(i) In this case the prosecution has established the demand made by the accused officer, through PW3 complainant, his Advocate PW4 and through the shadow witness PW5.
(ii) PW3 Jeyabal is a Correspondent of a School at Madurai. He, with an intention to construct a school in the Park Town area, Madurai and also to develop a layout surrounding the school, entered into an agreement with the land owner of the property in Survey Nos.9/3B and 13/4B of Anaiyur village. The Power of Attorney granted by the land owner in favour of PW3 is marked as ExP5. After obtaining the power deed dated 26.06.2002, PW3 put up a shed, dug a bore-well and also appointed a Security to the property.
According to PW3, on 21.08.2002, 10 persons came to his land and threatened his Security personnel that those lands belong to one Karmegam. Therefore, PW3 lodged a complaint before the Oomatchikulam Police Station, which was treated as petition enquiry in CSR.No.454 of 2002 dated 23.08.2002. The said Karmegam also lodged a complaint before the DIG, Madurai with the patta issued by http://www.judis.nic.in 29/65 Crl.A(MD)No.24 of 2012 the appellant/first accused and therefore, the DIG directed both the parties to approach the Thasildar, Madurai North [appellant/first accused] and to get a report as to the genuineness of the patta produced by both the parties.
(iii) Accordingly, PW3 approached the Tahsildar, Madurai North along with PW4 his Advocate and PW6 a Doctor and also a relative of the land owner Jeyakothaiammal. They also produced the documents in support of their ownership on the property and after perusing the same, the Tahsildar, Madurai North suggested them to approach him on 13.09.2002. On 13.09.2002, as directed by the appellant / first accused, PW3 along with PW4 went to the Office of the Tahsildar and met him. The Thasildar accepting the mistake committed in having issued the patta in favour of Karmegam during the Jamabandhi, suggested PW3 to pay a sum of Rs.50,000/- for cancelling the patta in the name of Karmegam and to rectify the mistake, a sum of Rs.20,000/- was demanded by the Tahsildar for himself and Rs.30,000/- was demanded for RDO, who is supposed to pass an order to cancel the patta issued in the name of Karmegam.
http://www.judis.nic.in 30/65 Crl.A(MD)No.24 of 2012
(iv) PW3 expressed his displeasure that why he should pay such a huge amount for the mistake committed in the office of the appellant / first accused and therefore, the appellant/first accused reduced the bribe amount as Rs.20,000/- for himself and Rs.20,000/- for the RDO.
(v) He also warned that without paying the amount, the patta issued in the name of Karmegam would not be cancelled in the near future and in the normal course, it would take not less than six months to one year to change the patta. PW3 called the Tahsildar again on 17.09.2002 and verified about his petition. The first accused has reiterated the earlier demand and suggested to pay the money as demanded by him through PW4 Murugesan. PW3, who did not want to pay the money as demanded by the accused officer, lodged a written complaint ExP3 before the Vigilance and Anticorruption Wing on 18.09.2002.
(vi) PW4 the Advocate of PW3 has also stated about this chain of events in his evidence. The demand made by the appellant/first accused on 13.09.2002 is established by the prosecution through the witnesses PW3 and PW4, but the defence could not demolish their evidence in their cross examination.
http://www.judis.nic.in 31/65 Crl.A(MD)No.24 of 2012
(vii) On receipt of the complaint, the Deputy Superintendent of Police, Madurai, after verification of the complaint and the background of PW3 and PW4 through the Inspector of Police [PW11], registered a case in Crime No.11 of 2002 and also made arrangements for shadow witnesses from the Tamil Nadu Electricity Board and the Highways Department. Accordingly, PW5 Rajendran, Assistant Executive Engineer in the Tamil Nadu Electricity Board at the relevant point of time and Devageorge, Divisional Engineer from the Highways Department appeared before the Vigilance and Anticorruption Wing, on the request made by the DSP. The DSP also explained the complaint and also arranged for a pre-trap demonstration in their presence and sent PW5 shadow witness along with PW4 and instructed him to inform that he is the Manager of the School run by PW3. Accordingly, PW4 and PW5 went to the office of the accused officer and in the presence of PW5, the accused officer verified with PW4 whether they have brought the money as demanded by him. The reiterated demand made by the accused officer on the date of trap on 18.09.2002 is also established through the evidence of PW4 Advocate and PW5 the Assistant Executive Engineer, Tamil Nadu Electricity Board.
http://www.judis.nic.in 32/65 Crl.A(MD)No.24 of 2012
(viii) The learned Counsel for the appellant raised a ground that there is no material for the demand on 17.09.2002, since PW3 is said to have contacted the accused officer over phone on 17.09.2002, but the call details were not collected by the investigation officer to establish the fact that PW3 has contacted the accused officer over phone on 17.09.2002. It is true that the investigation agency failed to collect the call details on 17.09.2002 of PW3 and failed to establish the call made by PW3 to the accused officer on 17.09.2002. Even assuming that this demand made by the accused officer on 17.09.2002 is not proved by the prosecution, the prosecution has sufficiently proved the demand made by the accused officer on 13.09.2002 through PW3 and PW4 as well as proved the reiterated demand made by the accused officer on 18.09.2002 through PW4 and PW5 and therefore, this Court is of the view that the demand made by the accused officer has been established by the prosecution without any ambiguity.
29. Acceptance:
After the complaint lodged by PW3, the DSP verified the contents and registered the case in Crime No.11 of 2002, as against the appellant and the RDO one http://www.judis.nic.in 33/65 Crl.A(MD)No.24 of 2012 Ananthasayanam in Crime No.11 of 2002 for the offence under Section 7 of the Prevention of corruption Act, 1988.
The printed FIR is marked as ExP12. After registering the complaint, he also made a request for the official witnesses from the Tamil Nadu Electricity Board and Highways Department and accordingly, PW5 Rajendran, Assistant Executive Engineer from Tamil Nadu Electricity Board and Devageorge, Divisional Engineer from the Highways Department were deputed to the Office of the Vigilance and Anticorruption Wing. In their presence, the DSP/Trap Laying Officer collected a sum of Rs.40,000/-, from PW3, meant for giving bribe as demanded by the accused officer. The serial numbers of these currencies were entered in the entrustment mahazar [ExP4] in the presence of witnesses PW3, PW4 and PW5 and the other witness Devageorge, Divisional Engineer from the Highways Department. Phenolphthalein powder was also applied on the currencies and the DSP instructed them to hand it over to the accused, but only after his demand. Accordingly, PW4 and PW5 went to the office of the accused around 6.50pm and on seeing the witness PW4, the accused officer verified whether he has brought the money demanded by him.
PW4 replied in the affirmative and thereafter, the accused http://www.judis.nic.in 34/65 Crl.A(MD)No.24 of 2012 officer took the witnesses PW4 and PW5 to the office of the RDO, Madurai. On the way to the RDO office, the accused officer collected the money from PW4, counted the same and divided it into two portions, kept a sum of Rs.
20,000/- in his pants pocket and put the balance amount in a cover. After receipt of the amount, the accused officer has also taken them to the RDO office around 7.00pm and gave the balance amount of Rs.20,000/- in a cover to one Palraj, P.A to the RDO [second accused], who in turn, directed to hand it over to Stalin, an Assistant [third accused], working in his office. Accordingly, the balance amount was also given to the Assistant Stalin [third accused]. This portion of the acceptance by the accused officer/appellant and the third accused is also established through the evidence of PW4 Murugesan, who is an Advocate and PW5 Rajendran, Assistant Executive Engineer, Tamil Nadu Electricity Board. This part of the evidence was also not shattered by the defence. Therefore, this court concludes that the acceptance of the tainted money is also proved by the prosecution.
30. Recovery
(i) After passing the tainted money to the first and third accused, PW4 and PW5 returned to the office of http://www.judis.nic.in 35/65 Crl.A(MD)No.24 of 2012 the appellant and thereafter, came out of the office, shown the pre arranged signal. On seeing the signal from PW4 Murugesan, the DSP Sreenivasagam and his team rushed to the Madurai North Taluk Office and PW4 identified the appellant/accused officer to the Police and left the place.
(ii) The DSP after collecting the files pertaining to the change of patta, kept the appellant/accused officer in the custody of Inspector of Police [PW11] and other official witness Devageorge, Divisional Engineer, Highways Department and went to the office of the RDO along with PW5. PW5 identified the second and third accused also. On the request of the DSP Srinivasagam, Additional P.A to the District Collector has also accompanied them and in his presence, the phenolphthalein test was conducted by immersing both hands of the first accused separately in a tumbler and both solutions turned into pink in colour.
(iii) Thereafter, the accused officer was directed to give the tainted money and the accused officer took the money from his right pants pocket and handed it over to the DSP. The pants pocket was also subjected for phenolphthalein test in the presence of PW5, PW7 and PW11. http://www.judis.nic.in 36/65 Crl.A(MD)No.24 of 2012 The solutions used for the phenolphthalein test were also recovered in separate bottles in M.O.2 to M.O4 under a cover of mahazar [ExP6], in the presence of PW5 and PW7. Thereafter, they have also conducted similar test with the third accused, but the solution has not turned into pink in colour. The third accused also handed over a sum of Rs.20,000/- in a cover from his pants pocket. The serial numbers of the currencies recovered from this accused officer were also verified with the entrustment mahazar [ExP4] and a separate recovery mahazar was also prepared in ExP7 and the same was also attested by PW5 and PW7.
(iv) The sample of MOs 2 to 4 for the test conducted from the appellant/ first accused along with MOs.5 and 6 for the test conducted from the third accused were sent for the chemical analysis and the presence of phenolphthalein and sodium carbonate in MOs.2 to 4 were established through the Scientific Expert Vishalakshi [PW10] and through the chemical analysis report [ExP11], dated 10.10.2002. Thus the recovery of tainted money from the appellant/ first accused is established by the prosecution through the evidence of PW5, PW7 and PW10, through the entrustment mahazar [ExP4], the recovery http://www.judis.nic.in 37/65 Crl.A(MD)No.24 of 2012 mahazar [ExP7] and the chemical analysis report [ExP11]. The prosecution has established the recovery of the tainted money from the possession of the appellant/first accused without any doubt.
(v) Therefore, the prosecution has established in this case, the demand, acceptance and recovery beyond reasonable doubt.
31.Apart from the above, the report of the appellant/accused officer is also recovered from the accused officer and marked as ExP9. A perusal of the report [ExP9] would reveal the manner in which, the patta was transferred in the name of Karmegam. Originally the patta stood in the name of Jeyakothaiammal in patta No.108 and a request was made by Karmegam during the Jamabandhi on 17.04.2002 for the change of patta, as if, in Patta No.108, it was wrongly mentioned in the name of Jeyakothaiammal during the UDR. Though enquiry was ordered, without conducting enquiry, the joint patta was issued on 10.05.2002 for the survey Nos.9/3B and 13/4B in the name of Karmegam and Jeyakothaiammal and on the same day the said Karmegam gave another petition to issue http://www.judis.nic.in 38/65 Crl.A(MD)No.24 of 2012 individual patta in his name alone. Accordingly, the patta was also issued in his name without affording any opportunity to the Pattadhar Jeyakothaiammal. Though in ExP9 itself it is stated that the VAO attempted to send notice for the enquiry to the pattadhar Jeyakothaiammal, neither the copy of the notice nor the date of the notice is available in the document ExP8 recovered from the appellant/accused officer.
32.The prosecution has also examined the then Tahsildar, Madurai North and through him, the land tax receipts of the said properties for the Fasali year 1400 – 1410 (1995-2000) were also marked as ExP10 series. ExP10 series shows that the land owner Jeyakothaiammal was regularly paying the land tax for her properties. Despite the same, it is stated in the report that an attempt was taken to serve the notice on the pattadhar, but her address was not known and therefore, the patta was transferred in the name of Karmegam. The duration taken for the change of patta would also expose the connivance of the appellant/accused officer with the said Karmegam to create bogus records. During the evidence, PW3 as well as PW6 admitted that even in the year 2010, when the witness http://www.judis.nic.in 39/65 Crl.A(MD)No.24 of 2012 was enquired with regard to the change of patta, the petition for change of patta was pending before the DRO. Even in the petition of Karmegam, it is averred that the patta has been wrongly entered in the name of Jeyakothaiammal during UDR survey. If any correction to be made on the UDR survey, the competent authority is the District Revenue Officer. However, the Tahsildar without affording any opportunity to the land owner /pattadhar passed an order for a joint patta on 10.05.2002 and also issued individual patta in the name of Karmegam on 17.05.2002.
33.The chain of events and the available records expose the manner, in which, the officials have acted in creating the bogus records in favour of one Karmegam to enrich themselves. PW3 and PW6 have appeared before the Tahsildar on the direction of the DIG on 05.09.2002 and also produced the documents in favour of Jeyakothaiammal. Even then the accused officer has not realised the mistake committed, went on exploiting the situation and demanded a sum of Rs.50,000/- for correcting the mistake committed in his office. The appellant / accused officer was working as a Tahsildar in Madurai North Taluk from 30.04.2002 to http://www.judis.nic.in 40/65 Crl.A(MD)No.24 of 2012 18.09.2002 and during this relevant period a joint patta was issued for Karmegam on 10.05.2002 and individual patta was issued on 17.05.2002 by cancelling the patta in the name of Jeyakothaiammal. The demand made on 13.09.2002 was also reiterated on 18.09.2002 on the date of trap in the presence of the witnesses PW3, PW4 and PW5, the acceptance of the tainted money by this accused officer is also established through the witnesses PW4 and PW5 and the recovery is also established through PW5, PW7 and PW10.
34.Therefore, the presumption is made out as against this appellant / accused officer under Section 20 of the Prevention of Corruption Act and though the appellant has made an attempt to rebut the same, he could not succeed in doing so.
35.The other ground raised on behalf of the appellant/accused that there is no valid sanction to prosecute the accused, is not correct, since the sanctioning authority PW1 D.Rajendran, I.A.S., is competent to remove the appellant / accused officer and he also examined the FIR in Crime No.11 of 2002 on the file of the Vigilance and Anti Corruption Wing, Mahazar http://www.judis.nic.in 41/65 Crl.A(MD)No.24 of 2012 used for search, chemical analysis report and the connected records as mentioned in the annexure and after satisfying that there are sufficient prima facie materials to prosecute the appellant/accused officer, has granted sanction as required under Section 19(1)(C) of the Act.
36.The Sanctioning authority while granting sanction as required under Section 19(1)(C) is not deciding the issue as to whether the accused is guilt or not. What is required for sanction is to find out, whether any prima facie materials are available to prosecute the accused officer for the charges levelled against him.
37.The second ground raised by the learned Counsel for the appellant that the genesis of the case was not established by the prosecution as the complaint preferred as against Karmegam before the Oomatchikulam Police Station on 22.08.2002 was not placed before the Court, could not be appreciated in the given circumstances of this case. On behalf of Karmegam, 10 persons went to PW3's land and created problem and pursuant to that PW3 lodged a complaint before the Oomatchikulam Police Station and the complaint was treated as petition enquiry in CSR No.454 of 2002 dated 23.08.2002. The said CSR Number is very much http://www.judis.nic.in 42/65 Crl.A(MD)No.24 of 2012 mentioned in the sanction order ExP1 issued by PW1, which shows that this CSR and the complaint are very much recovered and also placed along with the request for sanction. However, it was not placed during the trial and during the relevant point of time, the DSP Seenivasagam died and therefore, on his behalf, the Inspector of Police [PW11], who accompanied the DSP during the trap, was examined and therefore, this ground raised by the appellant cannot be appreciated in the given circumstances. Moreover, the witnesses were examined after several years.
38.The third ground raised by the learned counsel for the appellant is that the demand made by the first accused is not proved by the prosecution by referring that there was no material for the demand on 17.09.2002 and even before the first demand on 13.09.2002 itself, the accused officer has recommended for cancellation of patta issued in the name of Karmegam and therefore, after completing his work, there is no necessity for him to make the demand on 13.09.2002. It is true that the investigation agency failed to collect the call details of PW3 and the accused officer to establish that there was a http://www.judis.nic.in 43/65 Crl.A(MD)No.24 of 2012 demand on 17.09.2002. But however, the demand on 13.09.2002 is established through PW3 and PW4. ExP9 was prepared by the Assistant from the office of the RDO on 13.09.2002. He admitted that this ExP9 report was made ready without filling up the date. The report ExP9 was also recovered from the office of the appellant/accused officer and therefore, there is no merit in his contention.
39.Yet another ground raised by the appellant is that PW3 had grudge and enmity against the first accused for having issued patta in favour of Karmegam. In fact, on this issue only PW3 agitated before the Police and by lodging the complaint before the Vigilance and Anticorruption Wing. Apart from PW3, the Advocate PW4 and Assistant Executive Engineer [PW5] TNEB, have stated before the trial Court that there was a demand from this appellant/accused officer for correcting the patta. Recovery is also made in the presence of Additional P.A. to the District Collector [PW7] and PW5 Assistant Executive Engineer, TNEB/ the shadow witness. Apart from PW3 and PW4, the independent witnesses PW5 and PW7 also supported the case of the prosecution.
http://www.judis.nic.in 44/65 Crl.A(MD)No.24 of 2012
40.The learned Counsel for the appellant has also relied upon the following judgments and submits that the demand is not proved, therefore, the presumption cannot be raised against the accused.
B. Jayaraj Vs State of Andhra Pradesh, reported in 2014 (13) SCC 55;
P.Satyanarayanamurthy Vs State of Andhra Pradesh reported in 2015(10) SCC 152;
Khaleel Ahamed Vs State of Karnataka reported in 2015(16) SCC 350;
N.Sunkanna Vs State of Andhra Pradesh reported in 2016 (1) SCC 713;
V. Sejappa Vs State, reported in 2016(12) SCC 150; Mukhtiar Singh Vs State of Punjab reported in 2017(8) SCC 136 Crl.A(MD)Nos.269 & 272 of 2014 in the case of Mani and another Vs State of Tamilnadu;
41.The facts and circumstances of the case cannot be equated with the cases referred to by the learned Counsel for the appellant, since in this case, the prosecution has established the demand, acceptance and recovery without any iota of doubt and therefore, there is no reason to interfere with the orders of the trail Court. http://www.judis.nic.in 45/65 Crl.A(MD)No.24 of 2012
42.As discussed above, the demand in this case has been sufficiently established through the evidence of PW3, PW4 and PW5, the accused could not demolish the same during the cross examination of these witnesses and therefore, the presumption under Section 20 of the Act is made out. While the officer was questioned under Section 313 CrPC, the appellant/accused has taken a plea that he was summoned to the Vigilance and Anticorruption Office and from there he was arrested. But in contrary to the same, PW5 and PW7 independent witnesses, the responsible Officers, the Assistant Executive Engineer, TNEB, Additional P.A to the District Collector have clearly stated the manner in which, the recovery and the arrest are effected in this case.
43.The learned Counsel by referring the charge has also taken out a plea that the charge is defective. Though in the charge the learned trial Judge referred that for the purpose of changing the patta in the name of Murugesan, in the questions raised under Section 229 CrPC, the charges were read out clearly to the accused officer, the accused officer has also understood the charges and he denied the same and therefore, no prejudice would be http://www.judis.nic.in 46/65 Crl.A(MD)No.24 of 2012 caused to him on this mistake committed by the trial Court on oversight.
44.Since the prosecution has established its case, the appeal lacks merits and is liable to be dismissed. Accordingly, the criminal appeal is dismissed. However, this Court is of the view that the quantum of punishment imposed by the trial Court is not in proportionate to the offence committed in this case.
45.The corruption has ruined the system. Despite implementation of the Prevention of Corruption Act, corruption has not been eradicated and it has become a common affair. Nobody is having the sense of fear to the prevailing Act. The higher officials must act as an example to their subordinates in discharge of their duties. If the higher officials themselves commit mistakes, then they loose their morale to question their subordinates. Ultimately, the system fails. The Hon'ble Apex Court in Niranjan Hemchandra Sashittal v. State of Maharashtra reported in (2013) 4 SCC 642, painfully discussed the gravity of the corruption in the following terms:
“26. It can be stated without any fear of contradiction that corruption is not to be http://www.judis.nic.in 47/65 Crl.A(MD)No.24 of 2012 judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered.”
46.The Hon'ble Apex Court has reiterated time and again that the punishment must be proportionate to the character and level of social dangerousness of the crime, the circumstances of its commission and the personal characteristics of the guilt person.
47.The duty of the Court is to perform with due respect to the rule of law. The principle of proportionality depends upon the seriousness of the offence and its impact on the society.
48.In Hallsbursy's Law, the object of the punishment is stated as follows:
http://www.judis.nic.in 48/65 Crl.A(MD)No.24 of 2012 “The punishment should fit the offence and also that like-offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law.”
49.In Dhananjoy Chatterjee Vs State of West Bengal 1994(20) SCC 220, the Hon'ble Supreme Court has held as follows:
“The quantum of punishment in a given case has to depend upon the atrocity of the crime, the conduct of the offender and the helpless state of the victim. The Courts must respond to the society's cry for justice against the criminals by imposing adequate punishment. Justice demands that courts impose punishment befitting the crime so as to reflect public abhorrence of the crime. The rights of the criminal, the rights of the victim and the interest of the Society at large have to be kept in view by the Courts while imposing appropriate punishment.” http://www.judis.nic.in 49/65 Crl.A(MD)No.24 of 2012
50.In the case of Raviji V State of Rajasthan 1996(2) SCC 175, the Hon'ble Supreme Court has held as under:
“The punishment to be awarded for a crime must be relevant and should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated and the enormity of the crime warranting public abhorrence and it should respondent to the society's cry for justice against the criminal.”
51.In Ahmed Hussain vali Mohammed Saiyed and another Vs State of Gujarat reported in 2009 (7) SCC 254, the Hon'ble Supreme Court has been held as follows:
“The Court would be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society for which the criminal and the victim belong.”
52.In State of M.P. Vs Babulu reported in (2014) 9 SCC 281, it has been held as follows:
http://www.judis.nic.in 50/65 Crl.A(MD)No.24 of 2012 “Imposing a sentence without considering its effect on the social order in many cases would in reality be a futile exercise. The social impact of the crime, for example, where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral trupitude or moral delinquency which completely adversely affect the social order and public interest, should not be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view just because of lapse of time in respect of such offences will be counter productive in the long run and will be against social interest which needs to be cared for and strengthened by a string of deterrence in built in the sentencing system.
10. It is well settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and http://www.judis.nic.in 51/65 Crl.A(MD)No.24 of 2012 nature of the crime. The punishment should not so lenient that its shocks the conscience of the society. It is, therefore, the solemn duty of the Court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers.”
53.The Hon'ble Supreme Court, in Sarjug Raj and Others v. State of Bihar, reported in 1958 AIR 127, has upheld that the High Court is having powers to enhance the sentence, beyond the limit of maximum sentence that could have been imposed by the trial Court. The Hon'ble Supreme Court has further held that there was no provision in the code that could limit the powers of the High Court and that if the appellate Court comes to the conclusion, on a careful consideration of the entire circumstances of the case, that the sentence imposed is inadequate, then the Court can enhance the same.
54.The Hon'ble Supreme Court in Govind Ramji Jadhav Vs State of Maharastra, reported in [1990] 4 SCC 718 held as follows:
http://www.judis.nic.in 52/65 Crl.A(MD)No.24 of 2012
6.'Let punishment fit the crime' is one of the main objects of the sentencing policy.
To achieve this object, the Code of Criminal Procedure empowers the High Court to enhance the sentence in appropriate cases where the sentence awarded by the Subordinate Courts is grossly inadequate or unconscionably lenient or 'flea-bite' or is not commensurate with the gravity of the offence. The High Court enjoys the power of enhancing the sentence either in exercise of its revisional jurisdiction under Section 397 read with Sec. 401 or in its appellate jurisdiction under Section 37 read with Sec. 386(c) of the Criminal Procedure Code (hereinafter referred to as the 'Code') subject to the provisos (1) and (2) to Sec. 386 of the Code. It may be stated in this connection that it is permissible for the High Court while exercising its revisional jurisdiction under Section 397 read with Sec. 401 IPC to exercise the power of a Court of Appeal under Section 386(c) for enhancement of sentence.
... ... ...
8. ... ... ... However, the High Court notwithstanding of the exercise of its powers under the appellate jurisdiction in an appeal preferred under Section 377 of the Code have powers to act suo motu to enhance the sentence http://www.judis.nic.in 53/65 Crl.A(MD)No.24 of 2012 in appropriate cases while exercising its revisional jurisdiction even in the absence of an appeal against the inadequacy of the sentence as provided under Section 377.
55. The Hon'ble Supreme Court in the case of Eknath Shankarrao Mukkawar vs State Of Maharashtra, reported in [1977 AIR 1177] has held as follows:
“ We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or 'the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extent under section 397 read with section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under section http://www.judis.nic.in 54/65 Crl.A(MD)No.24 of 2012 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues. as before in the new Code.”
56.The available materials and evidence expose the manner in which, the appellant/accused indulged in corruption, without any fear and within ten days from assuming his office as Tahsildar, the accused officer casually transferred the patta in the name of another, without even an enquiry and having committed this mistake for certain extraneous consideration, demanded huge amount of bribe for him and for the Revenue Divisional Officer. The accused officer also managed to drag on the proceedings for 18 long years during the trial and appeal. Whenever the appeal was taken up for hearing, the appellant changed the Counsel and dragged the appeal.
57.In the case of Jameel v. State of U.P. (2010) 12 SCC 532 the Hon'ble Supreme Court has held that the punishment must be appropriate and proportional to the gravity of the offence committed and in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts http://www.judis.nic.in 55/65 Crl.A(MD)No.24 of 2012 and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
58.The Hon'ble Supreme Court further held that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed and the sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
59.In yet another case, in Gopal Singh v. State of Uttarakhand reported in (2013) 7 SCC 545, the Hon'ble Supreme Court has held as under:
“ Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and http://www.judis.nic.in 56/65 Crl.A(MD)No.24 of 2012 punishment cannot be totally brushed aside.
The principle of just punishment is the
bedrock of sentencing in respect of a
criminal offence”
60.In view of the aforesaid pronouncements and the gravity of the offence involved in this case and its impact over the society in large, this Court deems it fit to enhance the quantum of punishment, as the punishment imposed by the trial Court is not in proportionate to the gravity of the offence committed.
61. The Hon'ble Supreme Court in Govind Ramji Jadhav's case cited supra, has held as follows:
“ From the above discussion, it is clear that the High Court both in exercise of its revisional jurisdiction under Section 397 read with Sec. 40 1 Cr.P.C. and its appellate jurisdiction under Section 377 read with Sec. 386(c) of Cr.P.C. in matters of enhancement of sentence should give the accused a reasonable opportunity of showing cause against such enhancement as comtemplated under the first proviso to Section 386 as well under Sub-Section (3) of Section 377 of the Code. As pointed out in Surjit Singh's case, the rules of natural justice as also the prescribed procedure require http://www.judis.nic.in 57/65 Crl.A(MD)No.24 of 2012 issuing of notice to the appellant and affording an opportunity to be heard on the proposed action for enhancement of sentence.”
62. Since this Court has rejected the grounds raised in support of this appeal and found the appellant guilty for the offences charged and has held that the punishment imposed by the trial Court is not proportionate to the aggravating circumstances in this case, as per the guidelines of the Hon'ble Supreme Court in the above cited judgments and on the powers conferred upon this Court under Section 397 and 401 of CrPC, issued a notice to the appellant, to get his views on the proposed enhancement of punishment and posted the matter on 16.09.2020.
63.On 16.09.2020 the appellant did not appear, but filed an affidavit through his counsel that he underwent a cataract surgery and therefore, he is not appearing before this Court. In the said affidavit, the appellant has also raised certain other legal grounds on the enhancement of punishment. In support of this affidavit, he did not enclose any proof for the so called cataract surgery underwent by him and the date of the said surgery was also not mentioned. Not satisfying with the reason, this Court directed the appellant to appear before this Court today.
http://www.judis.nic.in 58/65 Crl.A(MD)No.24 of 2012 The respondent Police was also directed to produce the appellant before this Court today. The appellant did not appear and the respondent Police has also not produced the appellant.
64.Earlier, this Court by order dated 03.03.2020 issued a non bailable warrant of arrest to the appellant, but the respondent Police did not take any efforts to comply with the orders till 08.07.2020 and this Court has also directed the appearance of the concerned Officer before this Court to ascertain the reason for non compliance. Only thereafter, the appellant, came forward to proceed with the appeal. The conduct of the appellant and the steps taken by the respondent Police in executing the orders of this Court is not appreciable. Since neither the appellant nor the respondent Police inclined to comply with the orders of this Court, this Court proceeded further with this appeal. As per the guidelines of the Hon'ble Supreme Court as referred above, this Court enhances the punishment for the offences under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1998 on the following aggravating circumstances:
http://www.judis.nic.in 59/65 Crl.A(MD)No.24 of 2012 ● The appellant was the Thasildar, Madurai North at the relevant point of time and within 10 days from assuming his office, issued joint patta on 10.05.2002 to a third party. A further request was made to issue individual patta, which was also granted on 17.05.2002 within few days without any notice to the land owner, record has been created with the help of the VAO that the whereabouts of the land owner could not be ascertained.
● The land owner in this case is a Vice Chancellor of an University and was also paying land tax regularly before the VAO concerned. (The tax receipts are marked as ExP10 series) ● In the strength of the patta issued by the appellant, the third party created problem with the land owner and the land owner was driven to lodge a police complaint.
● Both the complainant and the third party produced their pattas before the Police Official and therefore, the police officials unable to identify the real owner, referred the issue to the appellant / Thasildar to ascertain, which one is true. http://www.judis.nic.in 60/65 Crl.A(MD)No.24 of 2012 ● The appellant Thasildar admitted the mistake committed in his office, but demanded Rs. 50,000/- as illegal gratification for correcting the same. (His report ExP9 would expose the title of the property and the manner in which, the patta was changed.) ● A trap was laid successfully in the year 2002 and the final report was filed by the respondent police in the year 2004 the trial was dragged for 8 long years and finally concluded on 10.02.2012.
● When the appellant demanded money for correcting the mistake, the victim PW4 questioned him why he has to pay such a huge amount for correcting their mistake, for which, the Tahsildar informed him that if he is not paying the money, patta would not be restored in the near future. The fact remains that the patta proceedings were pending even in the year 2010, when PW6 was examined before the trial Court. ● The trial Court found him guilty, convicted and sentenced for the offence with a minimum punishment of one year rigorous imprisonment, as against the same the appellant preferred the present appeal. When the appeal was taken up for hearing, the appellant http://www.judis.nic.in 61/65 Crl.A(MD)No.24 of 2012 changed the counsel in order to evade the final hearing and also left the appeal unrepresented. ● The appeal was remanded by the Hon'ble Supreme Court by order dated 14.10.2019 and even thereafter, the counsel did not proceed with the appeal and took time on lame reasons and therefore, this Court was constrained to issue Non Bailable Warrant of arrest against the appellant on 03.03.2020.
● After this order the appellant neither surrendered nor had taken any steps to proceed with the appeal, instead adjournments were sought on the ground that the appellant proposed to challenge the order of issuance of the non bailable warrant of arrest by this Court.
● Evaded the arrest from 03.03.2020 to 29.07.2020. ● When the matter was taken up for final hearing, again he changed the counsel and sought time to proceed with the appeal.
● On the request of the present counsel that he has to get instructions from the appellant to proceed with the appeal, this Court by order dated 29.07.2020 recalled the non bailable warrant issued against the appellant.
http://www.judis.nic.in 62/65 Crl.A(MD)No.24 of 2012 ● This court by order dated 09.09.2020, found this appellant guilty for the offence and also deem fit that the quantum of punishment was not proportionate to the nature of the offence committed and issued notice to the appellant and directed him to appear before this Court on 16.09.2020 on the question of sentence to be imposed on the appellant. ● The appellant did not appear before this Court on 16.09.2020. However, filed an affidavit through counsel with certain excuses for his non appearance. ● For providing one more opportunity to the appellant, the case was adjourned to 28.09.2020, i.e., today. ● Even today, he did not appear before this Court. The appellant, who served as a Tahsildar, is not having any due respect to the rule of law while discharging his duty as Tahsildar and also before this court.
65.In view of the above discussion and also in view of the aggravating circumstances, this Court enhances the sentence of imprisonment from one year to three years for each offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1998 and imposes a fine of Rs.1,000/- (Rupees One Thousand Only) each, http://www.judis.nic.in 63/65 Crl.A(MD)No.24 of 2012 in default to undergo one month simple imprisonment and the sentences shall run concurrently.
66.In the result the appeal is dismissed and the sentence is enhanced as stated supra. The trial Court is directed to secure the appellant and confine him to prison to undergo the sentence and the bail bonds, if any executed by him, shall stand terminated.
28.09.2020 Index : Yes/No dsk To
1.The Special Court for Trial of Cases under the Prevention of Corruption Act, Madurai.
2.The Inspector of Police, Vigilance and Anticorruption, Sivagangai.
3.The Additional Pubic Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper (2 Copies), Criminal Section, Madurai Bench of Madras, Madurai.
http://www.judis.nic.in 64/65 Crl.A(MD)No.24 of 2012 B.PUGALENDHI.J., dsk Judgment made in Crl.A(MD)No.24 of 2012 28.09.2020 http://www.judis.nic.in 65/65