Madras High Court
State Rep.By vs N.Panudurangan on 27 July, 2022
Crl.A.No.491 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[Judgment RESERVED ON : 14.07.2022]
[Judgment PRONOUNCED ON : 27.07.2022]
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.A.No.491 of 2012
State rep.by
The Inspector of Police,
Vigilance & Anti Corruption,
Chennai City - II,
Adyar, Chennai - 20.
[Crime No.01/AC/2005/CC-II] ......Appellant
.. Vs ..
N.Panudurangan ...Respondent
PRAYER: Petition filed under Section 378 of Cr.P.C, to set aside the
judgment of acquittal of the respondent/accused passed by the
Hon'ble Special Court for the cases under Prevention of Corruption Act
at Chennai in C.C.No.83/2011 [Old C.C.No.10/2006] dated
20.04.2012 and to convict the respondent/accused for the offences
framed against him, pass sentence against him in accordance with law.
For Petitioner : Mr.S.Udaya Kumar,
Government Advocate (Crl.Side)
For Respondent : Mr.K.Shankar
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Crl.A.No.491 of 2012
JUDGMENT
The State is the appellant herein, challenging the order of acquittal made in C.C.No.83 of 2011 [old C.C.No.10 of 2006).
2. This Criminal Appeal is filed against the judgment dated 20.04.2012 passed in C.C.No.83/2011 (Old C.C.No.10/2006) on the file of the Special Court for the cases under Prevention of Corruption Act at Chennai and prayed to set aside the judgment of acquittal and convict the respondent/accused for offences under Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
The case of the prosecution is that:
(i) the respondent/accused Pandurangan worked as Revenue Supervisor in the office of the Assistant Engineer (O&M), Tamil Nadu Electricity Board, J.J.Nagar (West), Chennai from 27.03.2001 to 12.01.2005 and as such he is a public servant as defined under Section 2(c) of the Prevention of Corruption Act, 1988.
(ii) The respondent/accused has demanded Rs.700/- as bribe from one M.Singaram (P.W.2), the defacto-complainant to make name 2/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 change for the Electricity Board service connection in the name of one G.Loganathan who is the son of complainant's brother.
(iii) In pursuance of the aforesaid demand made by the accused, on 12.01.2005 between 12.50 hours and 13.05 hours in the O/o. the Assistant Engineer (O&M), Tamil Nadu Electricity Board, J.J.Nagar (West), Chennai, when P.W.2-Singaram accompanied by an official witness P.W.3-Ramadoss met the accused, he reiterated his demand of Rs.700/- and accepted the bribe amount of Rs.700/- from the defacto-complainant as gratification other than legal remuneration as a motive or reward for making name change in the Electricity Board service connection, and thereby the accused had committed an offence punishable under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
(iv) Based on the above, a case was registered against the respondent/accused for offences under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 on the basis of the complaint lodged by P.W.2/Singaram in Cr.No.01/AC/2005/CC-II. 3/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012
(v) The respondent police, after registration of the above case, completed the investigation and charge sheet was laid against the respondent/accused for offences under Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and the same was submitted before the Special Court for the cases under Prevention of Corruption Act at Chennai and the above said Court had taken the same on file in C.C.No.83/2011 [Old C.C.No.10/2006]
(vi) The Special Court for the cases under Prevention of Corruption Act at Chennai after due trial was pleased to acquit the respondent/accused for offences under Sections 7, 13(2), r/w 13(1)(d) of the Prevention of Corruption Act, 1988 by its judgment passed in C.C.No.83/2011 [Old C.C.No.10/2006], dated 20.04.2012.
(vii) Hence the appeal.
3. Records reveals that the appellant had filed a final report in Crime No.1/AC/205/CC2 alleging that :
(i) On 28.12.2004 Singaram, S/o.Thiru Muthulingam residing at No.325/1, Kathiravan Colony, Chennai - 40 met the accused in his office and presented an application along with necessary documents to 4/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 the accused for processing and to effect name change for the electric service connection in the name of one Mr.Loganathan, his brother's son with respect to a flat in Tristal Residency Flat No.A/11, 6th Main Road, Mogappar Eri Scheme, Chennai purchased from Tamil Nadu Housing Board. The accused perused the application, documents and returned the same after making some oral remarks and demanded Rs.700/- from Mr.Singaram for processing the papers. Once again the papers were resubmitted on 11.01.2005 but the accused refused to receive the same and insisted his demand of Rs.700/-
(ii) Mr.Singaram was not inclined to pay the bribe amount and hence he approached the Vigilance and Anti Corruption Authorities.
Consequently, on 12.01.2005, pursuant to the demand made by the accused, Singaram accompanied by an official witness met the accused between 12.50 hrs and 13.05hrs at the accused office viz., TNEB, J.J.Nagar (West), Chennai - 37. At that time, the accused reiterated his demand of Rs.700/- and obtained the said amount from the complainant, as illegal gratification other than legal remuneration, as a motive or reward for processing the application and for effecting name change in the Electricity Board connection in the name of one G.Loganathan, his brother's son, the owner of the above said flat and 5/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 thereby the accused has committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988.
(iii) At the aforesaid place, time and date and in the course of the same transaction, the accused being a public servant by corrupt or illegal means and by abusing his official position, obtained Rs.700/- for himself as pecuniary advantage from Singaram and thereby has committed an offence punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 and hence, the case was taken on file under Sections 7, 13(2) r/w 13(i)(d) of the Prevention of Corruption Act.
4. After following the procedures, the matter was taken up for trial. In order to prove the guilt of the accused, prosecution has examined P.W.1 to P.W.8 and has marked Exhibits P1 to P15 and M.O.1 to M.O.5 were marked. Accused did not let in any oral or documentary evidence. The defacto-complainant was residing at 325/5 Kathiravan Colony and was doing Real Estate business and running a service station. His brother's son Loganathan had purchased a house from Tamil Nadu Housing Board.
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5. In the trial, the Sanction Authority is examined as P.W.1 and the defacto-complainant is P.W.2 and accompanying Government official witness is P.W.3 and Track Lying Officer is examined as P.W.4; P.W.7 is the Scientific Officer, Forensic Department; P.W.8 is the Investigation Officer. Ex.P1 is the Sanction Order and Ex.P8 is the complaint and Ex.P10 is the Seizure Mahazar and Ex.P11 is the F.I.R. M.O.1 is a stained shirt pocket and M.O.5 is the shirt of the accused.
6.The learned Government Advocate (Crl.Side) would submit that the evidence of P.W.2, P.W.3, P.W.5 & P.W.8 are not considered in accordance with law. Though P.W.2 turned hostile during the cross- examination, the cross-examination of defacto-complainant (P.W.2) was conducted after fourteen months and therefore, loses its credibility and further more.
7. He would further submit that the other reason assigned by the trial Court that P.W.8 has admitted in the cross-examination that he accompanied the raiding party is factually error. The suggestion put to P.W.8 was duly denied and therefore, the finding rendered by the trial Court that Vedarathinam/P.W.8/Investigating Officer, accompanied the raiding party is a factual error, which goes into the 7/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 root of the matter, so also as to the cross examination of P.W.3, coupled with Ex.10. The finding rendered by the learned trial Judge in Paragraph 53 of the judgment that does not found in Ex.P10-Seizure Mahazar so as to disbelieve the shadow witness P.W.3.
8. He would further submit that the finding of the trial Court, regarding non-compliance of Vigilance and Anti-Corruption Manual as per the judgment of this Court in the case of K.Selvaraj and others Vs. The State, reported in [2004 Crl.L.J 3754] was not considered in a proper prospective. Argument of the appellant herein heard.
9. Per contra, the learned counsel for the accused could made submission supporting the judgment of acquittal passed by the trial Court and relied upon the following decisions reported in:-
(i) (2010) 3 MLJ (Crl) 182 [Meganathan Vs.State]
(ii) (2002) 9 SCC Page 530 [State of Tamil Nadu Vs.S.Krishnamurthy]
(iii) 2012 (1) MWN (Crl) 448 [R.Venkatraj Vs.State of Tamil Nadu)
(iv) (2005) 8 SCC Page 364 [State Vs.Narasimhachary
(v) 1979 STPL (LE) 9855 SC [Suraj Mal Vs.State of Delhi] 8/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012
(vi) 2017 (2) L.W. (Crl) Page 92 [Dharmalingam Vs.State]
(vii) (2009) 3 NWN (Crl) 356 [State of Tamil Nadu Vs.Magalingam
(viii) 2018 (1) L.W. (crl.) 699 [Deenadayalan Vs.State]
(ix) 2013 (14) SCC 153 [State of Punjab Vs.Madhan Mohal Lal]
(x) 2016 (12) SCC 150 [V.Sejappa Vs.State] and
(xi) 2019 (3) MLJ (Crl) 713 [K.P.Kolanthai Vs.State] are considered.
10. Heard the rival submissions and also taken note of the contentions of the learned Government Advocate.
11. The main contention of the learned Government Advocate (Crl.Side) is that "evidence adduced by the hostile witness can be relied upon to the extent to which it supports the prosecution version and the evidence of hostile witnesses cannot be treated as base of the record and it remains admissible and there is no legal bar to base his conviction upon his testimony, if corroborated by other.
12. The defacto-complainant was residing at 325/5 Kathiravan Colony and was doing Real Estate business and running a 9/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 service station. His brother's son Loganathan had purchased a house from Tamil Nadu Housing Board.
13. The defacto-complainant was examined as P.W.2. He was given a letter of authorization for effecting name change for Electricity service connection for the house purchased by Loganathan. The authorization letter is marked as Ex.P2. P2 was given by Loganathan since he was working as a Computer Engineer and for want of time P.W.2 was authorized.
14.The chief-examination of P.W.2 is to the effect that P.W.2 had met the J.J.Nagar T.N.E.B Supervisor Pandurangan on 28.12.2004. P.W.2 had taken with him the N.O.C letter, E.B card, name transfer form, indemnity bond for Rs.80, Xerox copy of the sale deed and showed it to Pandurangan. The name transfer application form is marked as Ex.P4. E.B card is marked as Ex.P5. Xerox copy of the Sale Deed is marked as Ex.P6. Indemnity Bond is marked as Ex.P7. Pandurangan received the above documents, verified the same and expressed that they were in order. He also added that in order to expedite the processing P.W.2 Singaram has to pay Rs.700/- as bribe. Since P.W.2 was not inclined to give the bribe amount he returned. 10/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 Once again on 11.01.05 at 4.50 p.m P.W.2 met accused-Pandurangan. The accused reiterated his demand of Rs.700/- and further documents mentioned by him failing which, P.W.2 has to run from pillar to post.
15.On 12.01.2005 at 9.00 am P.W.2 had prepared a complaint narrating the demand of bribe by the accused and handed over the same to the Deputy Superintendent of Police, Vigilance and Anti Corruption at Adyar office. The said complaint is marked as Ex.P8. After perusing the complaint, the DSP questioned P.W.2 whether he had brought the bribe money. P.W.2 answered in the affirmative. After a short time, the DSP handed over the complaint Ex.P8 to Inspector Ravichandran and directed him to investigate the matter. Mr.Ravichandran was examined as P.W.4. He perused the complaint and enquired P.W.2. P.W.2 was directed to wait and after half-an-hour he brought two persons alleging that they are from Labour Welfare Department. P.W.4 made mutual introduction to P.W.2 and the two employees. P.W.4 handed over the complaint to the witnesses and asked them to read and clarify the doubts with P.W.2, if any.
16. The other portion of the chief-examination of P.W.2 (defacto-complainant) is with regard to trap formalities and modalities 11/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 of execution of trap. As advised by P.W.4, the trap was materialized as could be seen from the evidence of P.W.2 and P.W.3. However, there are inconsistencies as stated by the evidence of P.W.2 and P.W.3 which is discussed infra.
17. It is a specific case of the prosecution that P.W.2 is the defacto complainant. According to the prosecution and P.W.2, he was authorized by his brother's son Loganathan to give an application to effect name transfer for electricity connection with respect to the house purchased by the said Loganathan. According to P.W.2 he had taken certain records and handed over the same to the accused to effect name transfer. But he did not produce the house tax receipt and water tax receipt. The non-production of the above two documents is admitted by P.W.4, the trap laying officer.
18. The sheet anchor of the prosecution case is the version of P.W.2. The defacto-complainant was examined as P.W.2 in chief on 28.11.2005. It is seen from the records that upto P.W.2, P.W.3 & P.W.4, the cross-examination was deferred on filing petition; P.W.3 shadow witness was examined in-chief on 18.06.2008 and P.W.4 was examined. Thereafter, on petition, P.W.2 was cross-examined on 12/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 05.01.2009. However, he turned hostile and hence, he was declared hostile by the prosecution.
19. According to the prosecution, the accused demanded bribe from P.W.2 for effecting name transfer in the Electricity Board records. Once the evidence of P.W.2 regarding the alleged demand is turned hostile, the trial Court has come to the conclusion that where two views are possible from the same set of evidence, prosecution cannot said to have been proved its case beyond reasonable doubt and further followed the judgment of the Supreme Court that if two views are possible where witnesses made two inconsistency statement in their evidence either at one stage or at two stages, the testimony of such witnesses become unreliable and unworthy of evidence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses.
20. Accordingly, in view of the hostile nature of P.W.2, the trial Court has come to the right conclusion that as two views are possible from the evidence on record, the view in favour of the accused favours consideration, when there is a possible and acceptable explanation from the accused.
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21. At this juncture, it remains to be stated that the case of the defence is that he was made as victim of conspiracy. While the prosecution claimed that the accused had received the money as a bribe, it was refuted by the respondent/accused that money was thrusted into his pocket inspite of his protest while he was taking lunch in his office.
22. The case of the defence is discussed separately infra. As stated supra, the prosecution has come forward with specific case that the first demand was made on 28.12.2004 by the accused and the second demand was made on 11.01.2005 and on 12.01.2005 in the presence of P.W.3, a demand and acceptance was made during the lunch time of the office hours, in this regard, P.W.3 evidence in the cross-examination assumes significance.
23. On a perusal of the evidence of P.W.2, he has not whispered anything about the accused was taking lunch at the time of the trap. In the cross-examination, he had admitted that there was opened tiffin box when entered into the room of the accused to give the bribe and went out of the accused office, at the instance of 14/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 Inspector once again P.W.2 went inside the office and met the accused who was taking lunch. While so, P.W.3 has stated that the accused after receiving the application from the complaint, went inside the office to take the lunch. In the cross-examination, he could deposed that the accused was taking lunch when P.W.3 and P.W.2 went to meet the accused.
24. Admittedly, the case of the defence is that while the accused was taking lunch, P.W.2 came and thrusted Rs.700/- in his pocket. Since he was taking lunch he could not make his best effort to prevent P.W.2 in putting the money in his pocket and hence he took the money from his pocket and was giving back to P.W.2 assumes significance. In this regard, the trial Court has taken note of the case of the defence projected during the cross examination of the prosecution witnesses and also the reply given by the accused under Section 313(1)(b) of the Cr.P.C with 243(1) of Cr.P.C., wherein, the defence have categorically narrated that on 12.01.2005, when he was taking lunch in his office at that time P.W.2 Singaram came and handed over application along with annexure for the mutation of name transfer and offered the money for which he had refused and sent him back. Thereafter, he went out and again interrupted when he was 15/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012 taking the lunch and thrusted the money in his pocket and though the accused had prevented P.W.2 in putting the money in his pocket and despite the same he has forcibly put it in the pocket and he took the money on his left hand to give it back to P.W.2 and thus, I find that right from the cross-examination of P.W.2 to P.W.9 and also the statement of defence under Section 243 of Cr.P.C., the accused has taken the stand that the money was thrusted into his pocket.
25. It is to be stated that when the accused was not afforded any opportunity to offer his explanation for the receipt of the trapped amount at the time of his arrest the probability that the money was thrusted in his pocket as explained by the accused at the time of questioning of 313 of Cr.P.C ought to have been accepted as laid in 2008 (1) MLJ Crl.774 [T. Danial Manickaraj Versus The State rep. by the Inspector of Police, Vigilance and Anti Corruption, Tirunelveli ] 26 (a) P.W.3 has admitted in the cross-examination that when P.W.2 went inside to give money, the accused was taking food. In such a situation this Court, is unable to agree with the version put forward by the prosecution that he received the amount. On the contrary, it appears that as projected by the defence the money it was thrusted in his pocket by P.W.2 appears to be more probable.
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(b) Furthermore, both P.W.2 and P.W.3 have categorically admitted in the cross-examination that at the first instance, when P.W.2 gave the application along with document to the accused there was no demand and no receipt of any amount and they returned, went out of his office. Only thereafter at the instance of the Inspector, P.W.4 trap laying officer, he went inside to give money. At that time, the accused was taking lunch as spoken to by P.W.3 appears to be more probable.
27 (a). In this connection, this Court has also noticed certain infirmity in Ex.P8 complaint and Ex.P11.F.I.R. On perusal of the original records, I find that the date of complaint is altered from 11.01.2005 to 12.01.2005 so also, in the last paragraph the word in the second line is corrected as "new;W" in the place of ",d;W" and hence, I find that all is not well in the commencement of the trap proceedings and receipt of the complaint and coming into the existence of Ex.P11 F.I.R. It has been launched after 14 days of delay, though the delay in giving the complaint to the Vigilance by itself is not a fatal affecting the prosecution. However, it is one of the fact which has to be led in cumulative with other factors as discussed supra and 17/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012
(b) thus, in view of the fact that P.W.2 has turned hostile during the cross-examination and in the cross-examination, he has negatived the plea of demand alleged to have been made by the accused, the presumption under Section 20 of the P.C.Act cannot be invoked in favour of the prosecution.
(c)The similar finding arrived at by the Trial Court is well considered and well merited and does not warrant any interference at this appellate stage.
28(a). Furthermore, it is no doubt true that presumption can be drawn if a public servant is found in possession of currency notes dipped with phenolphthalein. The prosecution does not have any further duty to prove beyond the fact that the prosecution witnesses had paid the demand money to the appellant public servant.
(b) However in the instant case, P.W.2 in his cross examination admitted that no demand has been made by the accused and hence, when the alleged demand by the accused is doubtful presumption under Section 20 cannot be invoked and a similar finding rendered by the Tribunal by the trial Court cannot be termed as erroneous.
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(c) hence, I find that there is a mutual contradiction, among the prosecution witnesses especially with P.W.2 complainant and P.W.4 trap witness and P.Ws.3 & 5 trap laying officer and hence, I find that the finding rendered by the Trial Court that the evidence of P.W.2 having turned hostile cannot canvas the case of the prosecution and evidence of the accompanying official witness (trap proceedings witness P.W.3) suffers from infirmity in respect of the charge and in view of the fact that there is a inconsistency between the evidence of P.W.2 and P.W.3, the prosecution is not entitled for presumption under Section 20 of the Prevention of Corruption Act and there is a material alteration in Ex.P8, complaint and Ex.P11 F.I.R as to the dates of the registration of the complaint and coupled with the fact that there is a delay of 14 days in preferring the F.I.R.
29.On an a cumulative analysis of all the above factual factors, I find that the prosecution has not let in any positive evidence much less any legal evidence to prove that the charges are proved beyond reasonable doubt and hence by operation of law 'benefit of doubt' goes to the accused. Accordingly,the trial Court has rightly come to the conclusion that the charges are not proved beyond reasonable doubt and rightly acquitted the accused. 19/21 https://www.mhc.tn.gov.in/judis Crl.A.No.491 of 2012
30.In view of the fact that in the absence of proof of demand on recovery is not sufficient for conviction as laid down in 2013 (14) SCC 153 [State of Punjab Vs.Madan Mohal Lal] and 2019 (3) MLJ (Crl) 713 [K.P.Kolanthai Vs.State]'s case, the trial Court has rightly held that the prosecution has failed to prove the charges beyond reasonable doubt and the same does not warrant any interference at this appellate stage.
31. In this view of the matter this Criminal Appeal is dismissed. The judgment of the acquittal passed by the trial Court in C.C.No.83/2011 [Old C.C.No.10/2006] dated 20.04.2012 is hereby confirmed.
27.07.2022
Internet :Yes / No
Speaking Order : Yes/No
nvi
To
1. The Inspector of Police,
Vigilance & Anti Corruption,
Chennai City - II,
Adyar, Chennai - 20.
2. The Public Prosecutor,
High Court, Madras.
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Crl.A.No.491 of 2012
RMT.TEEKAA RAMAN, J.
nvi
Judgment made in
Crl.A.No.491 of 2012
27.07.2022
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