Madras High Court
State Rep. By vs D.Sakthivel on 17 August, 2022
Crl.A.No.21 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.08.2022
PRONOUNCED ON : 17.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.No.21 of 2016
State Rep. By
The Public Prosecutor,
High Court,
Madras – 104.
(Crime No.07/2009
of Cuddalore V&AC) ... Appellant / Complainant
-Vs-
D.Sakthivel ... Respondent / Accused
PRAYER: Criminal Appeal is filed under Section 378 of Criminal Procedure
Code, praying to set aside the judgment of acquittal dated 13.04.2015 in
Special Case No.11/2010 on the file of the Court of Special Judge, Cuddalore
and to convict the respondent/accused charged.
For Appellant : Mr.S.Udaya Kumar.
Government Advocate (Crl. Side)
For Respondent : Mr.T.Sai Krishnan
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https://www.mhc.tn.gov.in/judis
Crl.A.No.21 of 2016
JUDGMENT
Appeal by State against the judgment of acquittal.
2. This Criminal Appeal is to set aside the judgment dated 13.04.2015 made in Special Case No.11/2010 on the file of the Court of Special Judge, Cuddalore and to convict the respondent/accused charged.
3. The case in brief, leading to the filing of the above appeal, is as under
(i) The respondent/ accused D.Sakthivel was working as Commercial Inspector, Office of the Assistant Engineer, TNEB, Town/Cuddalore Port, Cuddalore.
(ii) On 11.09.2009, at about 10.30 hours at the office of the accused (Assistant Engineer, TNEB, Town/Cuddalore Port] the accused demanded Rs.1,000/- from one M.K.Nowshath Ali, S/o.H.M.Mohamed Page 2 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 Kasim, No.54/78, Pallivasal Street, Cuddalore O.T., Cuddalore District, for himself as gratification other than legal remuneration as a motive for doing his official act of visiting the site and offering his remarks.
(iii) Pursuant to the aforesaid demand, on 17.09.2009 between 11.55 hours and 12.00 hours at the above said office of the accused, the accused reiterated the said demand Rs.1,000/- as gratification other than legal remuneration from M.K.Nowshath Ali.
(iv) In the course of same transaction and at the same time and place, the accused being a public servant, by corrupt and illegal means and abusing his official position obtained the above said sum of Rs.1,000/- as pecuniary advantage for himself from the said M.K.Nowshath Ali.
(v) The Charge sheet was filed before the Court of Special Judge, Cuddalore and the same was taken on file vide Spl. Case No.11 of 2020. Page 3 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016
(vi) To prove the case, the prosecution has examined 8 witnesses, exhibited 19 documents and marked two material objects. The defence did not examine any witnesses, but marked two exhibits from the prosecution documents itself and did not mark any material objects.
(vii) The Court of Special Judge, Cuddalore after full-fledged trial was pleased to acquit the respondent/ accused for the offences under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 in Special Case No.11/2010 by its judgment dated 13.04.2015 and hence, the appeal
4. The learned Government Advocate would contend that the trial Court has not considered that the presumption under Section 20 of the Prevention of Corruption Act, being legal and mandatory presumption, necessarily has to be invoked on the facts and circumstances of the case.
5. The finding of the trial court with regard to PW4 is not supported by Page 4 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 evidence. The finding of the trial Court on Ex.P4, Entrustment Mahazar has no bearing on the charge and hence, the learned Government Advocate would contend that the positive evidence has been let in by the prosecution by way of PW2, PW3-official accompanied (Shadow witness) and PW8, the Trap Laying Officer.
6. The learned counsel for the accused/respondent made his submissions in support of the judgment of acquittal passed by the trial Court viz., Special Judge / Chief Judicial Magistrate, Cuddalore.
7. After hearing the rival submissions and perusing the documents filed before the trial Court, I find that the accused D.Sakthivel, was working as Commercial Inspector, office of the Assistant Engineer, Tamil Nadu Electricity Board, Town/Cuddalore Port, Cuddalore O.T., Cuddalore District and as such he was a public servant as defined under Section 2 (c) of the Prevention of Corruption Act, 1988.
8. The case of the prosecution as per the final report and the evidence Page 5 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 adduced before the trial Court is that on 11.09.2009 at about 10.30 hours at the office of the accused, the accused had demanded Rs.1,000/- from the defacto complainant-M.K.Nowshath Ali, S/o. H.M.Mohamed Kasim, No.54/78, Pallivasal Street, Cuddalore O.T. Cuddalore District, for himself as gratification other than legal remuneration as a motive or reward for doing his official act of visiting the sit and on offering his remarks and further alleged that in pursuance of the aforesaid demand, on 17.09.2009 between 11.55 and 12.00 hours at the office of the accused, the accused had reiterated the said demand of Rs.1,000/- as gratification other than legal remuneration from the defacto complainant and in the course of same transaction and at the same time and place, the accused being the public servant by corrupt and illegal means and by abusing his official position had obtained the above said sum of Rs.1,000/- as pecuniary advantage for him and hence the accused appears to have committed an offence punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
9. Thereafter, the trial Court framed the charges under Sections 7 and Page 6 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 13(2) r/w 13(1)(d) of Prevention of Corruption Act. On the side of the prosecution, PW1 to PW8 were examined and Ex.P1 to Ex.P19 were marked. M.O.1 and M.O.2 were also marked.
10. In order to probabilise the suggestion case, the defence have marked Ex.D1, application dated 17.01.2019 and Ex.D2, Endorsement found in Ex.D1-Application . As per prosecution, there were two demands. First demand was alleged on 11.09.2009. The second demand, reiterating the first demand and acceptance, was on 17.09.2009. PW2-Nowshad Ali is the defacto complainant. PW3-Pargunam, who is a Grade-III Librarian was a shadow witness working in the office of the Agricultural Department. He along with one Shanmugam was projected as a trap witness.
11. PW4-Govindarajulu, is the Junior Engineer attached to the Tamil Nadu Electricity Board, Cuddalore, wherein the accused is serving as a Commercial Inspector, who could depose about the receipt of the application of PW2 (Ex.D1), Application register (Ex.P11) and Attendance register of Page 7 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 the employees (Ex.P13) to show that the accused was working on that day. Ex.P5- is the seizure register.
12. The sum and substance of the evidence of PW2- defacto complainant is that he owns a house in Door No.54/78, Pallivasal Street, Cuddalore O.T., Cuddalore District. He had constructed a second floor a month back. He had applied for transferring the single phase electric connection in the said house in the ground floor to the 2nd floor after paying the necessary fee and 10 days prior the electric connection has been shifted to his house in the 2nd floor. Prior to 15 days, he had applied for a III phase electric connection to the ground floor and the officials of the Cuddalore Old Town Electricity Board had inspected the house and orally instructed him to pay Rs.7,450/- immediately through the employee of the Electricity Board. On the said information on 11.09.2009 at 10.30am, he had gone to the Tamil Nadu Electricity Board Office at Cuddalore Old Town and given Rs.7,450/- to Thiru.D.Sakthivel for the said connection. The said Sakthivel, the accused herein had counted the money and asked for a further amount of Rs.1,000/-. Page 8 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 The defacto complainant had questioned whether Rs.8,450/- has to be paid, then the accused Sakthivel had told him that he has to pay Rs.7,450/- towards the fees and Rs.1,000/- to them and then only the electric connection could be given. The defacto complainant had informed that he had brought only Rs.7,450/- and he would pay Rs.1,000/- later and sought for electricity.
13. It is the further evidence of PW2 that the accused had informed him that he would issue receipt only if he had given Rs.1,000/- and had returned the amount of Rs.7,450/- to him. The defacto complainant had informed him that he would come with Rs.1,000/- and came home. After having a thought in his house, he was not willing to offer bribe to get electric connection. Alleging this, he had launched the complaint Ex.P2 with the Vigilance and Anti Corruption Police on 17.09.2009 and as per his version in the witness box, he lodged the complaint against the accused under Ex.P2 and signature in the FIR is Ex.P3. Ex.P4 is the Entrustment mahazar, prepared by the trap laying officer.
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14. The evidence regarding the pre trap proceedings and formalities have been spoken to by PW2, PW3 and PW8, leading to preparation of Ex.P4, Entrustment mahazar. With regard to some discrepancies found in the judgment of the trial Court, will be discussed infra.
15. The prosecution has come out with a definite case that the accused has demanded a bribe of Rs.1,000/- on 11.09.2009 in his office and PW2 had launched a complaint [Ex.P1] with the police and in pursuance thereof, a trap was laid on 17.09.2009 and the accused had reiterated his earlier demand of bribe and obtained Rs.1,000/- from PW2. It is the case of the prosecution the said amount was recovered from the accused which was smeared with phenolphthalein and during the test through Sodium Carbonate Solution in 2 bottles prepared by PW8-the trap laying officer along with PW3 the official witness who had accompanied PW2 when he had offered the bribe amount, the Sodium Carbonate Solution had turned pale red and further, the prosecution has relied upon entrustment Mahazar [Ex.P4], handing over the phenolphthalein smeared 2 currency notes to PW2 at the office of the Page 10 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 Vigilance Police and the Seizure Mahazar Ex.P5. The accused in order to explain about the trap and about the alleged money had come forward with their case while cross examining the PW2.
16. The suggestive case of the defence as could be seen from the cross examination of PW2, PW3 and PW8 are to the effect that at the time of trap, he handed over Rs.7,500/- towards III phase electrical charges and while the accused was counting them, PW2 had offered the two 500 Rupees notes and the accused after counting them has stated, in the petition only 5000 watts capacity has been stated as such only Rs.7,500/- rupees is sufficient and handed over back Rs.1,000/- to PW2 and since PW2 had intended to trap the accused has wantonly kept two 500 rupees notes in the table of the accused. Page 11 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016
17. Now let us consider whether the evidence of PW2 is reliable or whether the defence has probabilised its suggestive case from the answer elicited in the cross examination of PW2-defacto complainant and PW3- shadow witness
18. It has come on evidence that PW2 was admittedly a Municipal Councillor and also a building contractor. The complaint was lodged only on 17.09.2009 after 6 days. The reason that was assigned for the delay of six days is that because of Ramzan, PW2 could not launch the complaint. Admittedly, on a perusal of Ex.P4 Entrustment Mahazar, there is no whisper about Rs.7,450/- towards electrical connection. The entrustment mahazar also does not disclose anything about the said Rs.7,450/-. So also, the evidence of PW2 and PW3 and PW8, the trap laying officer has not whispered anything about Rs.7,450/ and they confined only to Rs.1,000/- for bribe amount to be handed over. What was handed over by PW2 to the accused is Rs.7500/- + Rs.1,000/-. In otherwise at the time of trapping, the Page 12 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 PW2 has offered two Five Hundred Rupees notes towards electrical connection and after counting the same, the accused found that Rs.1,000/- was found to be in excess and hence, he returned the same.
19. In this connection, the evidence of PW5-Kaliamoorthy, the Revenue Inspector attached to the Tamil Nadu Electricity Board, who has turned hostile is that the PW2, is a Municipal Councillor belonging to DMK party and on that date he came to the office and paid Rs.7,500/- and immediately after receipt, the vigilance came and caught hold of the accused and hence he was treated as hostile. In the cross examination, he has also admitted that “rf;jpnty; et[rj; mypaplk; y";rkhf TLjyhf U:/1000 gzk; nfl;L bgw;whuh vd;why; mt;thW xd;Wk;
mtu; nfl;L bgwtpy;iy”
20. Therefore, this Court finds that PW1 has offered the amount under the pretext of payment of Rs.7,500/- prescribed fees for the load in the ground floor as projected by him appears to be more probable. With regard Page 13 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 to the alleged demand on 11.09.2009 there is no positive evidence, except the evidence of PW2. In this regard, it is pertinent to note that as per the version of PW2, he had presented the application to the accused, on 11.09.2009 and the first demand was made on that day. For the said, the suggestion case of the defence in the cross examination of PW2 is that since the sufficient meters were not available, as such the application was not received from PW2 and the same was not issued as per the direction of the Junior Engineer, since sufficient meters were not available in the office. So is the evidence of PW4- Junior Engineer that on 17.09.2009 also there was no meter in his possession. In this regard, I find that PW2 in his complaint has stated that had given a complaint on 17.09.2009 and 15 days even prior to the said date, he has got his service connection from the ground floor of his house transferred to the newly constructed second floor of his house and the defence was successfully able to elicit in the cross examination that since the PW2 being a municipality councillor, he had intervened to say that since meters are not available it is not possible for him to give electricity connection immediately hence, he has come forward with this complaint.
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21. PW4-Junior Engineer would depose that in Ex.P11, Application Register, the application of PW2 (defacto complainant) is entered only on 17.09.2009. On perusal of Ex.P9, I find that initial of PW4 is affixed with direction to the Commercial Inspector viz., the accused and the said portion is marked as Ex.D2 in the cross examination of PW4.
22. Though, PW4 in the cross examination would contend that it is only 11.09.2009 and not 17.09.2009, since there was smudging in ink, after perusing Ex.P9, I find that there are three initials and all of them are '17.09.2009'. The receipt has also been enclosed therein and hence, I find that in view of Ex.D2 marked during the cross examination of PW4 and the clear and legible endorsement made i.e. '17.09.2009', assumes significance. Furthermore, under Ex.P11, it is clearly mentioned as 17.09.2009 in Sl.No.189. There is no ink smudge on the numeric '7' and it is clearly seen as 17.09.2009, i.e. the date of the receipt of the application and therefore, I find that the version of PW4 and PW8 (Trap Laying Officer) that 11.09.2009 is corrected as 17.09.2009, cannot be countenanced.
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23. As stated supra, on a bare perusal of Ex.P11 [Serial No.189], it clearly shows that the application was received only on 17.09.2009. So also, the initial made by PW4 in Ex.P9 is also on 17.09.2009 and hence, I find that the oral evidence of PW8 (Trap Laying Officer) and PW4 (Junior Engineer) has to be eschewed in view of the documentary evidence viz., Ex.P9 and Ex.P11 for the reasons discussed supra and thus, from the documentary evidence of Ex.P1, Ex.D1 and Ex.D2, the application of PW2 has been received, entered and initialled only on 17.09.2009 and not on 11.09.2009.
24. In view of the above documentary evidence, the trial Court has come to the right conclusion that the application of the PW2 was in the hands of the accused as projected by the prosecution cannot be presumed during the intervening period nor can be stated the accused was keeping the application in his hands for bribe money. Therefore, I find that in view of the suggestion case being found to be more probable, the evidence of PW2 on the first demand on 11.09.2009, is doubtful and artificial. Furthermore, when the ground floor service connection has already been shifted to the second floor, Page 16 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 he has to pay Rs.7,500/- for the new connection for the ground floor with III phase and the same could not be taken up since the electricity meters were not available, as admitted by PW4 in the cross examination and hence, the suggestive case of the defence that PW2 was asked to come on some other day appears to be more probable.
25. At this juncture, it is worthwhile to refer to Paragraph No.11 of the decision of the Supreme Court in 2022 (4) SCC 574 in K.Shanthamma Vs. State of Telengana, which reads as follows:
“In P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, [(2016) 1 SCC (Cri) 11], this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus:
“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would Page 17 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis added)
26. Since PW2 is the Municipal Councillor appears to have been irritated by the reply given by the accused and PW4, it appears that he has given a complaint and hence, I find that the 1st demand and the 2nd demand along with the acceptance of bribe are not proved in the manner known to law and hence when the demand and acceptance are not proved in the manner known to law, following the decision stated supra, merely because recovery of tainted amount from the person accused of the offence would not entitle his conviction and the trial Court has rightly disbelieved the evidence of PW2 and also PW3.
27. With regard to recovery under the seizure mahazar, this Court finds that various material contradictions have been noticed with the evidence of PW3 with that of PW8, the Trap Laying Officer. While PW3 Pargunan, the official witness accompanied PW2 in the cross examination has stated Page 18 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 that the complainant has asked for three phase connection with the accused and handed over Rs.7,500/- and it was counted by him by the accused and handed over to the person in the bill counter. It is his evidence in the cross examination that when questioned by the trap laying officer, the accused has stated that I have not demanded any amount and the PW2-defacto complainant has on his own, gave the money and the said amount has been taken from the table of the accused. However, the trap laying officer-PW8 in the cross examination stated that the accused has handed over the amount from the table draw two 500 rupees note and it is also his evidence that for what purpose the accused has demanded is not spoken to by PW2 during his recording of statement and hence, this Court finds that the seizure mahazar- Ex.P5 has not been proved and appears to be doubtful.
28. Therefore, I find that though the prosecution has come forward with the specific case, as rightly held by the trial Court that that the 1st demand was doubtful and the second demand was not proved as stated by PW2 and though the PW3 has spoken in a similar way about the handing over of the Page 19 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 amount, the suggestive case of the defence is found to be more probable and regarding the recovery, it is the specific case of the defence that the accused has given entire amount of Rs.8,500/- and on counting the same, he returned back the excess 1000 Rupees. It is the case of the prosecution that the said amount was seized in the office. PW3 who had accompanied PW2 has stated in his evidence the bribe amount was in the table and the accused handed over the same to PW8. PW8 in his evidence in chief examination has stated that in the mahazar, it has been recorded that the accused took the money from his table drawer and produced to him. But in his cross examination he has stated that in the seizure mahazar it is stated that accused took the money from the table and handed it over to him.
29. Accordingly, in view of the material contradiction with regard to the recovery of tainted amount, I find that the decision rendered by the Hon'ble Supreme Court in 2022 (4) SCC 574 in K.Shanthamma Vs. State of Telengana, is squarely applicable to the facts and circumstance of the case and also takes note of the scope of the appeal against the order of acquittal, Page 20 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016 as laid down by the Hon'ble Supreme Court in Crl.A.Nos.100 & 101 of 2021 [N.Vijayakumar Vs. The State of Tamil Nadu], which reads as follows:
“10....Further in the judgment in the case of Murugesan & Ors Vs. State through Inspector of Police (2012) 10 SCC 383, relied on by the learned senior counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of “possible view” to “erroneous view” or “wrong view” is explained. In clear terms, this Court has held that if the view taken by the trial court is a “possible view”, High Court not to reverse the acquittal to that of the conviction. The relevant paragraphs in this regard where meaning and implication of “possible view” distinguishing from “erroneous view” and “wrong view” is discussed.
In the case of Hakeem Khan & Ors. v. State of Madhya Pradesh [(2017) 5 SCC 719] this Court has considered powers of appellate court for interference in cases where acquittal is recorded by trial court. In the said judgment it is held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted. It is further held that so long as the view of trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of trial court cannot be interdicted and the High court cannot supplant over the view of the trial court.Page 21 of 24
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11. By applying the above said principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a “possible view”. By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. ...
12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M.Girish Babu v.
CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B.Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.” Page 22 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016
30. Therefore, in view of the decision stated supra, I find that the order of acquittal passed by the trial Court does not suffer from any irregularity or illegality. The view taken by the trial Court is a possible view and in view of the absence of any other possible view and taking note of the limitation of this Court and the scope of the appeal against the order of acquittal, I hereby hold that the judgment of the trial Court does not warrant any interference at this appellate jurisdiction.
31. In this view of the matter, the judgment of acquittal dated 13.04.2015 made in Special Case No.11/2010 on the file of the Court of Special Judge, Cuddalore, is hereby confirmed and the Criminal Appeal stands dismissed.
17.08.2022 Index: Yes / No Internet: Yes ars RMT. TEEKAA RAMAN, J.
ars To Page 23 of 24 https://www.mhc.tn.gov.in/judis Crl.A.No.21 of 2016
1. The Special Judge cum Chief Judicial Magistrate, Cuddalore.
2.The Public Prosecutor, High Court, Madras.
Pre-delivery Judgment made in CRL.A.No.21 of 2016 17.08.2022 Page 24 of 24 https://www.mhc.tn.gov.in/judis