Madras High Court
N.V. Kumaran vs State By Inspector Of Police, Sbe Cbi, ... on 3 August, 1994
Equivalent citations: 1995CRILJ1928
JUDGMENT
1. This appeal is against the conviction and sentence imposed by the learned IX Addl. Special Judge, Madras, in CC. No. 16/87 dated 8-4-1988 for the offences under Section 161 Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act of 1947 to undergo rigorous imprisonment for one year for each offence and to pay a fine of Rs. 1,000.
2. The Prosecution case is as follows :- ] The appellant was working as the Assistant Regional Director, Employees State Insurance Corporation, Inungambakkam, Madras. Metal Forms (P) Ltd., Redhills, was brought under the Employees State Insurance Corporation (hereinafter to be referred to as E.S.I. Corporation) from 29-5-1983. P.W. 1 is the Managing Director of Metal Forum (P) Ltd. and P.W. 2 is the Assistant Manager of this company. P.W. 4, the Inspector of E.S.I. Corporation, attached to its Villivakkam Officer, inspected Metal Form (P) Ltd. on 17-1-1985 and he found that the Security Guards were not brought under the E.S.I. Scheme. Therefore, he prepared the report Ex. P. 12, P.W. 5 was the Assistant Regional Director (Vigilance) and he inspected the Metal Form (P) Ltd. on 5-4-86. With regard to the detects, he found in the inspection he prepared the report Ex. P. 13. Notice was sent by the appellant in his capacity as Assistant Regional Director, to Metal Form Co. Under Ex. P. 1. in August 1986 directing the company to remit Rs. 17,783,60. P.W. 2, sent the reply Ex. P. 2 explaining that they were not liable to pay the amount. The appellant held personal enquiry on 16-9-86 and 1-10-86. Thereafter, as the final order was to communicated to Metal Form (P) Ltd., P.W. 2 enquired the appellant in his office as to the final order relating to his company. The appellant said that the orrderr would be issued in January, 1987. On 21-1-1987 P.W. 2 against met the appellant in his office and when he enquired about the final order, the appellant demanded Rs. 1,500 as bribe to reduce the amount mentioned in Ex.P1 notice. P.W. 2 answered the appellant stating that he would consult the Managing Director for payment and after coming to his office contacted P.W. 1 over phone and conveyed the demand of Rs. 1,500/- made by this appellant. P.W. 1 informed him not to pay any amount but to launch a complaint to the vigilance police. Therefore, he went to Central Bureau of Investigation office and met the Inspector P.W. 10 to whom the complaint Ex. P. 5 was given by him. P.W. 10 asked him to bring Rs. 1,500/- which was demanded by this appellant to lay the trap to catch the offender. Therefore, P.W. 2 collected Rs. 1,500/- from P.W. 1 and returned to the office of Central Bureau of Investigation. In the meanwhile, the Deputy Superintendent of Police, Central Bureau of Investigation, on the request of P.W. 10, contacted the Income-tax Officer to deput two persons to be the witnesses for a trap case and P.W. 3 and one Karthigeyan were deputed by their superior officers to be the witnesses for this trap case, when P.W. 2 returned to Central Bureau of Investigation office, he was introduced to P.W. 3 and Karthigeyan. P.W. 10 the Inspector sprayed phenopthalene powder over the currency notes M.O. 1 series brought by P.W. 2 in the presence of P.Ws. 2 and 3 and Karthigeyan and he explained to them the salient features of the chemical reaction when phenopthalene is dissolved in the solution of sodium carbonate. When the currency M.O. 1 series were touched by fingers and the fingers were dipped in sodium carbonate solution, it turned to pink colour. For this demonstration and also for the currency notes M.O. 1 series, Ex. P. 7 mahazar was prepared in the office of the Central Bureau of Investigation. The currency notes numbers also were given in Ex. P. 7. P.W. 10 instructed P.Ws. 2 and 3 to proceed to the office of the Assistant Regional Director Office, Nungambakkam and pay the amount to the appellant only when demanded and give a signal to him if the appellant had received the money. He requested P.W. 3 to be present with P.W. 2 and observe the conversation between the appellant and P.W. 2. Therefore, P.Ws. 2 and 3 came in advance to the office of the appellant followed by P.W. 10, Karthigeyan and the other members of the police party. P.Ws. 2 and 3 met the appellant in his room and P.W. 3 was introduced to the appellant as the Accountant of Metal Form (P) Ltd. The appellant asked P.W. 2 whether he had brought the amount. P.W. 2 Placed the M.O. 1 series currency notes on the table of the appellant as directed by him and he immediately placed a file over the currency notes. The appellant informed P.W. 2 that the Accountant of Metal Form (P) Ltd., could come and collect the order after the Pongal holidays. Both of them came out and P.W. 2 gave the signal to the Inspector P.W. 10 as instructed by him. P.W. 10 immediately entered the room of the appellant along with the P.W. 3 and others, other than P.W. 2, and he introduced himself to the appellant and asked him whether he received money from P.W. 2. The appellant got perplexed to answer to his questions. P.W. 10 prepared the sodium carbonate solution and asked the appellant to dip his fingers in the solution which turned to pink colour when dipped by the appellant. P.W. 10 collected the solution in two bottles M.O. 2 and M.O. 3 in the presence of P.W. 3 and others and he also prepared a mahazar Ex. P. 9 there itself, in the presence of the witnesses and the same was attested by P.W. 3 and Karthigeyan. He collected the file relating to the proceedings against Metal Form (P) Ltd. and issued the receipt Ex. P. 10 for the file. He searched the house of the appellant after intimation to the Court and prepared the search list Ex. P.P. 11. The Inspector thereafter, along with the appellant went to his office and registered a case against the appellant for which he prepared the First Information Report Ex. P. 20. He sent the articles seized, to the Court with a request Ex. P. 15 to send one of the sodium corbonate solutions to the Forensic Laboratory for chemical analysis. Ex. P. 16 is the Forensic Report prepared by P.W. 7 after the chemical analysis of the solution M.O. 2. P.W. 11 the Director General of E.S.I. Corporation, after perusing the records placed before him, sanctioned under perusing the records placed before him, sanctioned under Ex. P. 22 for the prosecution of the appellant. After the evidence, the appellant was questioned under Section 313 Criminal Procedure Code to explain the incriminating circumstances found against him in the evidence. The appellant denied the allegations and said that P.W. 1, who owns three companies, was not remitting the contribution amount to the E.S.I. Corporation properly and when notices were issued, the son of P.W. 1 threatened him stating that his uncle is an officer in the Central Bureau of Investigation and on account of these ill-feelings, he has been implicated. The learned Additional Special Judge has found that the prosecution has proved the case against the appellant and has convicted him in the manner stated above.
3. The point for consideration is whether the guilt of the accused has been brought home by the prosecution.
4. The accused was the Assistant Regional Director in E.S.I. Corporation in Nungambakkam Office and he sent the notice under Ex. P. 1 in August 1986 for remittance of Rs. 17,783,60 by Metal Forms (P) Ltd. Co. to which P.W. 1 is the Managing Director. P.W. 2 is the Assistant Manager of the said company. It is not in dispute that this company was brought under the purview of the E.S.I. Act and its code number is 51-9215-67. P.W. 4, the Inspector of E.S.I. Corporation, inspected Metal Form Pvt. Ltd. on 17-1-1985 for which he sent the report Ex. P. 12. Subsequently, P.W. 5, the Assistant Regional Manager (Vigilance) also inspected this company on 5-4-86 and sent his report Ex. P. 13. As it was found that a road was formed within the factory premises engaging labourers at a cost of Rs. 18,707/- P.W. 5 has stated in his report Ex. P. 13 that the contribution has to be made under the E.S.I. Act for the wages paid to the labourers. Further, as security expenses also were found in the account, P.W. 5 had pointed out in Ex. P. 13 that contribution for the security guards also should be made by the company. Only with reference to these defects, this appellant issued the notice Ex. P. 1 under Form C. 18 on 13-8-86. But the company replied under Ex.P2, sent through P.W. 2, disputing the claim of the E.S.I. Corporation. The accused also has admitted that an enquiry was conducted on 16-9-86 and 1-10-86 on production of the statements and the matter was reserved for orders of the appellant. According to P.W. 2, as the order was not passed even in November 1986, he met this appellant in his office on 4-11-86 enquiring about the final order and according to P.W. 2, the appellant informed that the order would be issued in January. As the final order was not received by Metal Form Pvt. Ltd., till 11-1-87, P.W. 2 went to the appellant on 12-1-87 to enquire about that and the evidence of P.W. 2 is that only on that date, this accused demanded Rs. 1,500 as the bribe to reduce the contribution amount. Ex. P. 3, the register maintained in the reception room of the E.S.I, Corporation Office, shows that P.W. 2 went to the office of the accused on 12-1-87 at 10.10 a.m. It is the evidence of P.W. 2 that as this appellant demanded Rs. 1,500/- he told him that he would consult his boss and meet him thereafter and as the Managing Director P.W. 1, when contacted over phone, informed him not to pay any amount to this appellant, but to complain the matter to the vigilance police, he went to the officer of the Central Bureau of Investigation where he gave the complaint Ex. P. 5 to the Superintendent of Police who directed him to meet the Inspector of Police P.W. 10. It is the prosecution version that on the request of P.W. 10, the Deputy Superintendent of Police, Central Bureau of Investigation, requested the Income-tax Commissioner to depute two persons to be witnesses for this trap case and P.W. 3 and one Karthigeyan, belonging to the Income-tax Department, were deputed to the office of the Central Bureau of Investigation to be the witnesses and in their presence, the trap was laid by P.W. 10 by spraying the phenopthalene powder in M.O. 1 series currency notes brought by P.W. 2 and later on its was found after the trap, that this appellant had handled M.O. 1 series currency notes as the phenopthalene test revealed the change of colour of sodium carbonate solution. It is also in evidence from P.Ws. 2, 3 and 10 that the salient features of the phenopthalene test were demonstrated in the office of the Central Bureau of Investigation by P.W. 10 by spraying phenopthalene powder over M.O. 1 series currency notes and thereafter allowing Karthigeyan to handle those currencies and dip his fingers in the colourless sodium carbonate solution, which turned into pink colour indicating the change of colour when phenopthalene came into contact with sodium carbonate solution. Ex. P. 7 is the mahazar prepared in the office of the Central Bureau of Investigation for the demonstration of phenopthalene test and also for the currency notes brought by P.W. 2. The prosecution version is that the same currency notes were handed over by this appellant to P.W. 10 in his office when enquired by P.W. 10 and before handing over of this cash by him, when his fingers were dipped in sodium carbonate solution, it changed the colour of the solution indicating the handing of M.O. 1 series currency by this appellant and therefore the prosecution relies upon this phenopthalene test as a piece of evidence to establish the guilt of the accused.
5. The learned counsel for the E.S.I. Corporation would concede that the phenopthalene test or recovery of the money from the accused alone will not to be the conclusive proof for the guilt of the accused and according to him there is other evidence from the oral testimonies of P.Ws. 2, 3 and 10 corroborate the prosecution case. But the learned senior counsel for the appellant Mr. Natarajan would contend that P.Ws. 2 and 3 cannot be treated as independent witnesses and the testimony also has to be taken with a point of salt as P.W. 2 has grievance against this appellant as Rs. 17,783,60 was ordered to be remitted and though P.W. 3 was deputed from income-tax Department, he was very much interested in the success of the trap and therefore, they cannot be treated as independent witnesses.
6. The learned senior counsel refers to a decision of the Supreme Court in Pannalal v. State of Maharashtra, wherein it is observed that in a trap case, the trap witness is not in a better position than accomplice after introduction of Section 165-A, Indian Penal Code and corroboration in all material particulars is a must to accept the guilt of the accused. This appellant, basing upon the inspection report of P.W. 5, issued the notice Ex. P. 1 for remittance of Rs. 17,783.60 to E.S.I. Corporation for which the company had sent its reply Ex. P. 2 through P.W. 2 and it was expecting the final orders. This appellant did not make any personal inspection of the accounts of the Metal Form pvt. Ltd. and as he sent the report Ex. P. 1 basing on the particulars furnished by P.W. 5, there cannot be any grievance for P.W. 1 to implicate him in the offence. According to P.W. 2, as this appellant, when enquired on 12-1-87 as to the delay in passing of the final orders. Demanded Rs. 1,500 to reduce the contribution, he launched the compliant Ex. P. 5 as per the instruction of his boss P.W. 1 and on the direction of P.W. 10, he handed over the money sprayed with phenopthalene powder. In view of this evidence of P.W. 2 it cannot be stated that P.W. 2 had any other motive against this appellant to falsely implicate him in this crime. P.W. 3 was deputed by his superior officer, namely the Commissioner of Income-tax, to be with the Central Bureau of Investigation police as a witness and according to P.W. 3, he did not even know for what purpose, he was deputed by his Commissioner to the Central Bureau of Investigation office and only in the office, when he was introduced to P.W. 2, he came to know where he had to go with P.W. 2. P.W. 3 is a stranger to this appellant having no axe to grind. But according to the learned senior counsel Mr. Natarajan, as P.W. 3 came as a witness on the instructions of the Central Bureau of Investigation police, he was very much interested in the success of the trap and therefore, he cannot be an independent witness. Further his argument is that even though, he belongs to the Income-tax Department, he agreed to act before the appellant as an Accountant of the Metal Forms Pvt. Ltd. and according to the prosecution version, as he was introduced to this appellant by P.W. 2 as the Office Accountant for which P.W. 3 did not deny, this conduct proves his interest not only in the trap but also in its success to rope this appellant and therefore, he cannot be an independent witness. The learned senior counsel refers to the decision in Darshan Lal v. Delhi Administration, (1974 (2) SCJ 236) : (1974 Cri LJ 307) in which case, the evidences of the trap witnesses are disbelieved and the Supreme Court has insisted for independent and trustworthy corroboration apart from the complainant and trap witnesses and according to the senior counsel in this case also there is no independent and trustworthy evidence to support the prosecution case. That was a case in which the currency notes were not recovered from the accused person and the trap witness himself produced the currency notes stating that the accused threw away the currency notes sensing the arrival of the police and the trap witness picked up those currency notes and produced before the police officer. The currency notes planted for the purpose of detection were not found in the possession of the accused but with trap witness. In that case, it was found that there was no other independent evidence to prove the demand of the bribe. But in this case, it is not so and the evidence of P.W. 2 is supported by not only the oral testimony of the trap witness P.W. 3 and P.W. 10 but also the phenopthalene test.
7. P.W. 2 has stated that on 12-1-87 morning when he met this appellant to enquire about the final order, he demanded Rs. 1,500/- to reduce the contribution. Therefore, on his complaint, trap was laid and when P.W. 2, the complainant and the trap witness P.W. 3 entered into the room of this appellant, P.W. 3 was introduced by P.W. 2 to the appellant as the Accountant of Metal Form Pvt. Ltd. and that he would come to receive the final order. The evidence of P.Ws. 2 and 3 is that thereafter, this appellant asked P.W. 2 whether he had brought the money. Therefore, the demand of bribe by the appellant has been spoken not only by P.W. 2 but also by P.W. 3. For the reason that P.W. 3 was introduced as the Accountant of Metal Form Pvt. Ltd., that by itself will not lead to the conclusion that P.W. 3 was interested in the success of the trap. As he knew the purpose of the trap, he was interested in knowing the truth namely whether the appellant was really demanding bribe from P.W. 2. If he had denied before the appellant that he was not the accountant of Metal Form Pvt. Ltd., there was no possibility to find out the truth. The presence of P.W. 3 is only to observe what was happening between P.W. 2 and this appellant. If the real identity of P.W. 3 was made known to this appellant, he might have questioned him as to why he came there and the revelation of the truth to the appellant that he came there as a trap witness would gave set at naught the very purpose of the trap. Therefore, to observe the transaction and conversation between P.W. 2 and this appellant, P.W. 3 had to necessarily conceal his identity and therefore he was passive when introduced to this appellant that he was the Accountant of the Metal Form Pvt. Ltd. and this behaviour of P.W. 3 will not in any way characterize him as an interested witness.
8. As mentioned above, P.W. 3 also would say that this appellant asked P.W. 2 whether the money was brought by him corroborating the version of P.W. 2 that the appellant demanded the bribe from him. After the question put by this appellant, M.O. 1 series cash Rs. 1,500/- was offered by P.W. 2 to the appellant and P.Ws. 2 and 3 would state that this appellant asked them to leave the cash on the table and when P.W. 2 did so, this appellant placed the file which he was reading, on the M.O. 1 series currency notes to conceal it under the file. The version of P.Ws. 2 and 3 is that only thereafter this appellant told P.W. 2 to come and receive the final order after the Pongal holidays and they came out and signal was given by P.W. 2 to P.W. 10 informing that the cash was paid. P.W. 10 reveals the events subsequent to that P.W. 2 was asked to wait outside the room and P.W. 10 along with P.W. 3 and others entered into the room and he after introducing himself as the inspector of the Central Bureau of Investigation questioned this appellant whether he received the money from P.W. 2 and according to the witnesses, this appellant got perplexed and thereafter answered to the questions of P.W. 10. P.W. 10 has stated in his evidence that the questions put by him to this appellant and the answers given by him are recorded in the mahazar Ex. P. 9. and thereafter prepared sodium carbonate solution in which this appellant was asked to dip his fingers and the solution turned to pink colour. The solution was preserved in two containers, which are marked as M.Os. 2 and 3. It is only thereafter P.W. 10 asked this appellant to handover the money and this appellant produced M.O. 1 series currency note which were kept in between telephone directory and the annual report on the left side of his table. This circumstance shows that even though P.W. 2 placed the M.O. 1 series currency notes on the table, the currencies have been concealed in another place in between the telephone directory and the Annual Report and the same also was produced by this appellant when demanded by P.W. 10. Therefore, the contention of the appellant that M.O. 1 series currency notes had been left in the table by P.W. 2 deliberately to implicate him by planting the currency notes, cannot be true because he himself had produced the currency notes, taking out from another place, namely, in between the telephone directory and the annual report. Further, the phenopthalene test also revealed the change of colour proving that this appellant had handled the money by his own hands, so that his fingers also got contaminated with phenopthalene powder, which turned the sodium carbonate solution to pink colour when his fingers were dipped in the solution.
9. Apart from the evidence of P.W. 3 that this accused demanded money from P.W. 2 after entering into the room, the handling of cash by this appellant proved by the phenopthalene test, production of the currency notes by the appellant himself when demanded P.W. 10, all support the prosecution case that this appellant had demanded bribe from P.W. 2. Therefore, even though the learned senior counsel Mr. Natarajan would contend that the M.O. 1 series currency notes were not seized from the person of the appellant but only from the table and this must have been planted by P.W. 2 cleverly, this argument holds no water when it is proved by evidence that this appellant himself had produced these currency notes from the place where it was concealed. There is no necessity for P.W. 3, an utter stranger to the appellant, and P.W. 10 to falsely depose against this appellant. Therefore, the argument of the learned senior counsel that there is no independent evidence to prove the guilt of the accused, carries no weight.
10. The learned senior counsel contended that the Supreme Court in a number of cases has directed that an independent preliminary enquiry should be conducted before laying a trap for the offences of this kind and in Sirajuddin v. State of Madras, the view of the Supreme Court that there must be some suitable preliminary enquiry into the allegations by a responsible officer before laying the trap, has been accepted by the subsequent decision in State of Haryana v. Bhajan Lal, but in this case that was not followed and though the complaint was given by 11.00 a.m. on 12-1-87, immediately everything moved so quick to trap this appellant and by 12.30 p.m. the appellant was trapped and this conduct of the police officer is against the direction of the Supreme Court and therefore the trap laid in this case should not be accepted. In Sirajuddin v. State of Madras, (1971 Cri LJ 523) (referred above) the Supreme Court taking into consideration of the dignity of the officers occupying the top position in a department when alleged baselessly, the trap laid by the police would do incalculable harm not only to the officer concerned but to the department he belonged to in general and therefore it was observed in that case to maintain the reputation of the department, a preliminary enquiry was desirable before laying the trap. In the subsequent decision (State of Haryana v. Bhajan Lal), (1992 Cri LJ 527) the accused was the former Chief Minister and also a Cabinet Minister in the Central Government on the date of registration of the case and the Superintendent of Police, in over enthusiasm, entrusted the investigation to an officer, who was not a designated officer under Section 5(a)(1) of the Act. Therefore, when the trap was laid against a former Chief Minister and also a Cabinet Minister of the Central Government, the Supreme Court observed that a preliminary enquiry was desirable. But in this case, P.W. 1 has stated that the appellant demanded the money to be paid on the same day and this fact also has been stated in the complaint Ex. P. 5. Therefore, as the money demanded was to be paid on the very same day P.W. 10 in his evidence has stated that as an enquiry about this appellant would not only take time, but also would make the appellant alert, he immediately took action for laying the trap. Therefore, it cannot be stated that P.W. 10 had not followed the procedure, violating any mandatory provision of law.
11. The next contention raised by the learned senior counsel Mr. Natarajan is that Ex. P. 17 pages 7 to 9 contain the notes prepared by this appellant even in October 1986 in respect of his notice Ex. P. 1 and he has reduced the contribution amount to Rs. 2007-95 after taking into consideration of the representation made by Metal Form Pvt. Ltd. and after the approval of the Joint Regional Director on 21-01-86, he kept it for dictation of the orders and as this document shows that even on 9-10-86 this appellant had passed and order favourable to Metal Form Pvt. Ltd. there was no chance for misusing the powers by this appellant for consideration demanding money from P.W. 2 on 12-1-87 and pages 7 to 9 in Ex. P. 17 completely falsifying the prosecution case. The learned senior counsel further argues that there was dearth of stenographers to type the orders as spoken by P.W. 8 and the delay in communicating the order to Metal Form Pvt. Ltd. was only due to the shortage of Stenographers for the transcription work and therefore no adverse inference can be drawn for not communicating the final order to P.W. 2. The contents in pages 7 to 9 of Ex. P. 17 are only the notes prepared by this appellant fixing the contribution amount payable by Metal Form Pvt. Ltd. at Rs. 2007.95, for approval of the Joint Regional Director. It is true that the Joint Regional Director has approved this on 21-10-86 and thereafter the appellant has made a note for dictation of orders accordingly". Therefore, the order was not passed by the appellant though his notes alone had been approved by the Joint Regional Director. Any how as per this note and also as spoken by P.W. 8, the final order has to be passed by this appellant in this case in line with the contents given in pages 7 to 9 of Ex. P. 17. It might have been proved that there was dearth of Stenographers in the office of the E.S.I. Corporation and therefore in this case also, the final order could not be dictated to the Stenographers by this appellant. Till the final order was dictated and signed by this appellant, the position is that no order was passed in this case, for the report Ex. P. 2 sent by this appellant. As Ex. P. 3 shows that on 12-1-87 morning by 10.10 a.m. P.W. 2 came to the office of this appellant to meet him, if really this appellant had no intention of demanding anything from the appellant, he could have stated that the approval had been obtained from the joint Regional Director for reducing the contribution to Rs. 2007-95. If that order had been brought to the knowledge of P.W. 2, he would not have gone to the office of the Central Bureau of Investigation to give the complaint Ex. P. 5. Therefore, it is clear that taking advantage of the situation that the final order was not passed, even though the note prepared by this appellant was approved by the Joint Managing Director on 21-10-86 the appellant wanted to collect the bribe money, before the final order was passed by him. Hence, it cannot be stated that the appellant could not have misused his official position demanding the bribe as already he had ordered on 9-10-86 itself for reduction of the contribution amount.
12. The last ground urged by the learned senior counsel is the difference in colour in the Sodium Carbonate solution preserved in M.Os. 2 and 3 bottles. It is the evidence of P.Ws. 8 and 10 that the sodium carbonate solution in which this appellant dipped his fingers, was divided into two parts, bottled in M.Os. 2 and 3 bottles with marking A and B and sealed. It is also their evidence that when this appellant dipped his fingers in that solution, it turned to pink colour. It is now pointed out that of these two bottles, the solution in M.O. 2 alone is pink in colour whereas the solution in M.O. 3 bottle is white in colour and when it is the evidence of P.Ws. 8 and 10 that the entire solution was pink in colour before the same was filed in M.Os. 2 and 3 bottles, the solution in M.O. 3 also must be pink in colour but as the same is white in colour, the evidence of these witnesses with regard to the phenopthalene test in the room of the appellant cannot be believed, otherwise, there is no reason for the difference in colours for the same solution. I also compared M.Os. 2 and 3 bottles and it is true that the solution M.O. 3 is not pink in colour whereas the solution in M.O. 2 is pink. Therefore, admittedly, now there is a difference in the colour. Normally, if the same solution is divided into two parts each part must contain the same colour and the properties must be identical to each other. But P.W. 7, the analyst attached to the Forensic Laboratory has given certain reasons for the possibility of being different in colours and they are (1) if sodium carbonate was more in quantity in one part, (2) if the water is hard, (3) if there was change in the climatic conditions or the atmosphere, (4) if the quantity of phenopthalene powder is less and lastly (5) lapse of time. Therefore, according to P.W. 7, the sodium corbonate solution which would become pink in colour when came into contact with the phenopthalene powder, may change its colour under the above circumstances. The learned counsel appearing for the Central Bureau of Investigation would contend that the water for dissolving the sodium carbonate was same for M.Os. 2 and 3 and therefore there was no change in the water and the climate condition also was same, but due to the quantity of the sodium carbonate and phenopthalene powder, the colour may vary between M.Os. 2 and 3.
13. P.Ws. 2, 3 and 10 have stated that when sodium carbonate solution was prepared, both in the office of the C.B.I. at the time of demonstration and also in the office of this appellant, the solution was colourless. But the solution in M.O. 3 is not in the same condition remaining colourless, but its colour has become dirty white. Therefore, it shows that some chemical reaction has taken place in this part of the solution converting its colour to dirty white, from its colourless stage. Further I find there are sediments both in M.Os. 2 and 3 solution and these sediments also are of the same colour. Now, if we consider the evidence of P.W. 7 analyst, if the sodium carbonate is more in quantity in one part and the same is lesser in the other part, there are chances for the difference in colour. Similarly, the quantity of the phenopthalene powder also may cause difference in the colour. The learned counsel appearing for the C.B.I. would contend that when this appellant dipped his fingers in the sodium carbonate solution, the upper surface liquid reacting with phenopthalene powder, got the pink colour more concentrated in the upper part and when the solution was divided into two parts, the upper parts, where there was concentration of the phenopthalene powder, must have got into the M.O. 2 container and rest of the sodium carbonate solution in the bottom of the tumbler, must have gone to M.O. 3 and even though at that time, the difference could not have been noted or clearly visible between upper part and the lower part of the solution, the lower part in which there was no sufficient quantity of phenopthalene powder must have lost its pink colour due to the lapse of time, because the change of colour is possible due to the lapse of time, as the case came up for trial after eleven months, and therefore the difference in the colour of the solution between M.Os. 2 and 3 will not affect the prosecution case. The learned counsel for the C.B.I. would further argue that this court has hold in Damodharan v. State, (1990 Mad LW (Cri) 275) that the mixture of sodium carbonate and phenopthalene powder need not be preserved till the time of trial and therefore even without M.Os. 3 and 2, the court can rely upon the mahazars Ex. P-9 and therefore this colour difference itself is not having any significance in this case, when especially the evidence of P.W. 7 offers explanation for such differences. The explanation offered by the learned counsel for the C.B.I. appears to be true and acceptable. When phenopthalene test was done in the office of the appellant, he was asked to dip his fingers in the solution. Therefore, normally, he might have dipped his fingers only to some depth but not upto bottom. Hence, the phenopthalene powder sticking to the fingers of the appellant, should have got reached with the sodium carbonate solution in the upper portion of the solution and in the bottom portion of it, there might not have been the complete reaction. Therefore, when this solution was divided into two parts, there was chance for difference in colour between the upper part and the lower part, and the lower part, where there was no concentration of phenopthalene powder, there might not have been complete change in the colour, which could not have been noted at that time comparing it with the upper part, and even the slight change in colour might have been lost now during this period of preservation for about a year. But one thing cannot be forgotten. M.O. 2 solution in which this appellant dipped his fingers is found to be in pink colour and this was tested by the analyst P.W. 7, who has deposed that it contained the properties of sodium carbonate and phenopthalene. Unless this appellant had handled the currencies, M.O. 1 series, there is no possibility for his fingers getting contaminated with phenopthalene powder. Therefore, when he dipped his fingers, it changed the sodium carbonate solution into pink colour indicating that he had handled the currencies by his hand.
14. Phenopthalene test alone is not the conclusive evidence to decide the guilt of the accused and it is only a part of it. In this case, I have referred to the evidence of P.Ws. 2, 3 and 10 and also the mahazar Ex. P-9. They establish the demand made by this appellant from P.W. 2 for doing a favour of reducing the contribution amount. Therefore, taking into consideration of this abundant evidence, I have no hesitation to concur with the findings of the court below in finding the appellant guilty.
15. In the result, the conviction and sentence imposed by the court below is confirmed and the appeal is dismissed. The bail bond is cancelled.
16. Appeal dismissed.