Madras High Court
S.Baskaran vs The Inspector Of Police on 17 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 17.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.93 of 2012
S.Baskaran ...Appellant/Accused
Vs.
The Inspector of Police,
Vigilance and Anti Corruption Wing,
Thanjavur.
[Crime No.1 of 2004] ...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to set aside the judgment of the Special Court for
trial of cases under Prevention of Corruption Act, Tiruchirappalli
dated 30.04.2012 in Special Case No.50 of 2012 and acquit the
appellant by allowing this appeal.
For Appellant : Mr.S.Venkatesan
For Respondent : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor
JUDGMENT
This appeal has been filed seeking to set aside the judgment dated 30.04.2012 rendered by the Special Judge, Tiruchirappallai in Special Case No.50 of 2012. http://www.judis.nic.in 2
2.The case of the prosecution is that the de facto complainant [P.W.2] submitted an application for approval of plan for construction of marriage hall and for name transfer in his Town Panchayat Office at Vallam, where the accused was working as a Record Clerk, who had demanded Rs.2,000/- for getting the plan approved and Rs.1,000/- for getting the name transferred. The complainant had not paid the amount and got the plan approved and name transferred. After completion of the construction, the de facto complainant approached the Executive Officer of the said Panchayat for assessment of the tax and the tax was assessed at Rs. 18,000/- per year. Later on the de facto complainant approached the appellant for reduction of tax, for which the appellant demanded Rs.5,000/- as illegal gratification for reducing the tax from Rs.5,717/- to Rs.4,677/- and also for the earlier plan approval and name transfer and subsequently, on several occasions he had reiterated his demanded and finally, on 05.01.2004 the appellant had demanded the illegal gratification and unwilling to pay the bribe, PW.2 had lodged a complaint before the respondent Police on 06.01.2004. Based on the complaint a case was registered.
3.Based on the FIR [Ex.P.28], a trap was planned by the http://www.judis.nic.in 3 Trap Laying Officer- PW.16 (in short as 'TLO'). Two independent witnesses, namely one Balu [PW.3] and one Rethinasamy [PW.4] who are known as shadow witnesses were summoned by the TLO and the TLO explained about the complaint given by PW.2, to the shadow witnesses and conducted a pre trap demonstration proceedings. PW.2 brought Rs.5,000/- (Rs.500 x 10) and the serial number of the currencies were noted down in the entrustment mahazar [ExP.3] prepared by TLO and later coated the currencies with phenolphthalein powder and gave them to PW.2. The TLO instructed PW.2 to go and meet the appellant and if the appellant demanded the money, then only he should give the money to the appellant. PW.3 was also directed to accompany PW.2 and TLO instructed them to show signal, after the appellant accepted the money. Accordingly, on the same day 06.01.2004 ,at about 10.30 am, the TLO, along with his team and PW.2 to PW.4 to the place of occurrence. The appellant came to his office. PW.2, along with PW. 3 went to the office of the appellant and met him, on noticing PW.2, the appellant asked whether PW.3 came and then PW.3 came near to the accused and PW.2 handed over Rs.4,700/- for the tax amount Rs.4,677/- with PW.3, who in turn handed over the same to the appellant, who after receiving the amount, had kept the money in his shirt pocket and asked as to whether he had brought the money demanded by him and after his demand, PW.2 gave http://www.judis.nic.in 4 Rs.5,000/- to PW.3 and as received earlier, the appellant received the money from PW.3 and kept in his pocket. When receipt for the same was requested, he demanded a further sum of Rs.500/-
4.Then PW.2 came out of his office and gave the pre arranged signal to the TLO. On receiving the pre arranged signal from PW.2, the TLO along with PW.4 and his team entered into the office of the appellant and introduced himself to the appellant and conducted phenolphthalein test and the result proved positive. Then the TLO recovered the tainted money through recovery mahazar and obtained signatures from the appellant and shadow witnesses. Then the TLO placed the matter before the Investigating Officer - PW.17. The Investigating Officer after conducting investigation laid a charge sheet against the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 [herein after referred to as 'PC Act'] before the, Special Judge, Tiruchirappalli.
5.On the side of the prosecution 17 witnesses as PW.1 to PW.17 were examined, 34 documents as Ex.P.1 to Ex.P.34 were marked and 5 material objects as MO.1 to MO.5 were exhibited.
6.After completion of the prosecution side evidence, http://www.judis.nic.in 5 the incriminating circumstances culled out from the prosecution witnesses were put before the appellant and the same was denied as false. On the side of the appellant / accused, no witness was examined and 11 documents were marked as Ex.D.1 to Ex.D.11.
7.After completion of the trial and after hearing the arguments on either side, the Special Judge found the appellant / accused guilty under Sections 7 and 13(2) r/w 13(1)(d) of PC Act and convicted and sentenced him to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.2,000/-, in de fault to undergo simple imprisonment for a period of one month, for having committed the offence under Section 7 and sentenced him to undergo rigourous imprisonment for a period of two years and imposed a fine of Rs.2,000/-, in de fault to undergo simple imprisonment for a period of one month, for having committed the offence under Section 13(2) r/w 13(d)(1) of PC Act.
8.Aggrieved against the conviction and sentence, the appellant has preferred the present appeal.
9.The learned Counsel for the appellant would submit that there was a tax due for a sum of Rs.14,031/- and Rs.5,000/- was http://www.judis.nic.in 6 remitted by PW.2 and PW.2 refused to remit the balance amount. Since the appellant was collecting the tax very strictly, as there was target of Rs.8,000/- per day was fixed to be collected, PW.2 had given a false complaint against the appellant.
10.The learned Counsel for the appellant submitted that the appellant was working as a Record Clerk and he was holding the additional charge of bill collection, he is not the authority to reduce the tax or he has no power to reduce the tax. Thus he has no role to play in reduction of tax. When the prosecution witnesses had admitted that the appellant has no power to reduce the tax, it is not possible for the appellant to demand the money for reducing the tax. PW.2 is not an honest man and PW.3 used to give false complaints against almost all the officers. Therefore, their evidence are not trustworthy. The trail Court failed to consider the antecedents of the PW.3. Further the alleged offence is started in the year 2002 and 2003 and the complaint is made in the year 2004. The complaint is made very belatedly. The delay in lodging the complaint has not been properly explained. Only in order to avoid the payment of tax, PW.2 had given a false complaint against the respondent.
11.It is further submitted that immediately after receiving http://www.judis.nic.in 7 the tax money, the TLO had recovered the money from him even without giving sufficient time to issue receipt for the said amount, even though the appellant had explained that the amount collected was the tax amount. The appellant received Rs.4,700/- and returned Rs.23 as the tax was Rs.4,677/- and he received another Rs.5,000/- and when he was about to issue receipt, the trap laying team, recovered the money from him. Therefore, the appellant has offered plausible explanation in respect of the money recovered from him. Then it is for the prosecution to prove that the money recovered from the appellant is a bribe money. The trail Court has failed to consider the plausible explanation offered by him. Therefore, the judgment of the trial Court warrants interference of this Court.
12. He has placed reliance on the following judgments:
1.T.Subramanian Vs. State of Tamil Nadu, reported in (2006) 1 SCC 401;
2.C.M.Girish Babu Vs. CBI., High court of Kerala, reported in 2009 SAR (Criminal) 304;
3.Bansari Dass Vs. State of Haryana, reported in 2010 SAR (Criminal) 346;
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4.Ramakrishnan Vs State rep by the Inspector of Police, V& AC, Chennai, reported in (2007) 1 MLJ (Crl) 430;
5.M.Rajendran Vs State rep., by the Deputy Superintendent of Police, V & AC, Cuddalore;
6.Ulfat Raj Arya Vs State of Rajasthan, reported in 2007 CRI.L.K.1846;
and
7.P.Meganathan Vs. State of Tamil Nadu, reported in (2010) 3 MLJ (Crl) 182.
13. The learned Additional Public Prosecutor appearing for the respondent would submit that it is not one time the appellant demanded bribe from the de facto complainant, but right from the application made for plan approval and name transfer. Even after construction of the building he had demanded bribe for the already given approval of the plan. Further whenever the de facto complainant approached the office, the appellant had demanded bribe. At last the tax was assessed at Rs.18,000/- per year and in order to reduce the tax to Rs.4,700/-, the appellant had demanded Rs.5,000/-. The demand is proved from the evidence of P.W.2 and http://www.judis.nic.in 9 from the complainant. Further, the evidence of P.W.3 and P.W.4, TLO-P.W.13 the demand and acceptance of the bribe money is proved and also the recovery of the tainted money from the appellant is also proved, which also supported by the result of the sodium carbonate test and the presence of the phenolphthalein and presence of phenolphthalein in the solution, which is proved through the result of the chemical analysis report and the chemical analyst also corroborated the same through his evidence. The recovery as the tainted money is also substantiated with the entrustment mahazar and recovery mahazar. Hence, the prosecution has prove its case beyond reasonable doubt.
14.Though the defence taken that the appellant being the Record Clerk had no role in reducing the tax, at the relevant point of time, he was entrusted with the work of bill collecting and assessment of tax, which is evident from Ex.P.19- the work order assignment register. So, it is clear that the relevant point of time, he was doing the work assessing the tax. Further, it is to be noted that the appellant himself had admitted the acceptance of money of Rs.4,700/- and Rs.5,000/- from the de facto complainant. Though the stand taken by the appellant that the received money is only a tax due from the de facto complainant, no receipt for the received amount had been given to the de facto complainant. Therefore, http://www.judis.nic.in 10 through the prosecution witnesses, demand, acceptance and recovery are proved. The trial Court has rightly considered all the entire materials placed on record, convicted and imposed sentence. Therefore, there is no reason to interfere with the well reasoned judgment of the Special Court.
15.Heard the learned Counsel on either side and perused the records.
16.The case of the prosecution is that the de facto complainant [P.W.2] submitted an application for approval of plan for construction of marriage hall and for name transfer in his Town Panchayat Office at Vallam, where the accused was working as a Record Clerk, who had demanded Rs.2,000/- for getting the plan approval and Rs.1,000/- for getting the name transferred. The complainant had not paid the amount and got the plan approved and name transferred. After completion of the construction, the de facto complainant approached the Executive Officer of the said Panchayat for assessment of the tax and the tax was assessed at Rs.18,000/- per year. Later on the de facto complainant approached the appellant for reduction of tax, for which the appellant demanded Rs.5,000/- as illegal gratification for reducing the tax from Rs.5,717/- to Rs.4,677/- and also for the http://www.judis.nic.in 11 earlier plan approval and name transfer and subsequently, on several occasion he had reiterated his demanded and finally, on 06.01.2004 the appellant had demanded the illegal gratification and accepted Rs.5,000/- from the appellant and hence the appellant stood charged for the offence under Sections 7 and 13(1)(d) r/w 13 (2) of PC Act and he was convicted and awarded punishment as mentioned supra.
17.A reading of the evidence of P.W.1 shows that the Sanction Authority had only after discussing with the Inspector of Vigilance and Anti Corruption and after perusing all the materials and only after satisfying herself had accorded sanction. Therefore, the sanction order holds good.
18.The evidence of P.W.2 shows that initial demand of Rs. 2,000/- made by the appellant from the de facto complainant on 18.07.2002 for having obtained the plan approval. When later on P.W.2 met the VAO on 31.01.2003, for name transfer, the appellant had demanded Rs.2,000/- as the earlier demand and further Rs. 1,000/- for name transfer. P.W.2 had not given any money. Further when the de facto complainant asked for reduction of the property tax, the appellant had reiterated the earlier demand and in all demanded Rs.5,000/- to reduce the tax, not once, but on several http://www.judis.nic.in 12 occasions and finally on 05.01.2004. Therefore, the continuous demand of bribe from Rs.2,000/- to Rs.5,000/- is clearly established. Further P.W.2 clearly deposed the acceptance of the money by the appellant on 06.01.2004 in his office and the recovery of the tainted money from the appellant. Therefore, the demand, acceptance and recovery are proved from the evidence of P.W.2 and also from the complaint – Ex.P.2 preferred by P.W.2.
19.P.W.3, K.Balu, who is the friend of P.W.2 had corroborated the evidence of P.W.2 and he had spoken about the pretrap demonstration and handing over the bribe money to the appellant and the acceptance and recovery of the tainted money.
20.P.W.4 namely Rethinasamy, who was working as Assistant in the Office of the Deputy Director of Horticulture, had stated that as he was directed by his Superintendent, he went to the Office of the Vigilance and Anticorruption Office, and met the TLO at 10.00 O'clock in, where, the TLO had explained him about the complaint preferred by the P.W.2 and he conducted the pre trap demonstrations and the serial numbers of the currency notes were noted down by preparing entrustment mahazar and the phenolphthalein powder coated money was given to the P.W.2 and the TLO instructed P.W.4 to accompany P.W.2 and to watch at the http://www.judis.nic.in 13 time when P.W.2 meets the appellant. Accordingly, they went to the office of the appellant and when they were waiting outside for the appellant and on seeing the de facto complainant, appellant asked as to where was Balu and P.W.2 had handed over the money of Rs. 4,700/- for the tax amount of Rs.4,677/-. Then appellant asked him where the money he demanded. Then P.W.2 gave the tainted money to the appellant through Balu and the appellant received the money by his hands and kept in his pocket and he further demanded Rs.500/-. Then they came out and gave the pre arranged signal. Subsequently, he had spoken about the recovery of money that TLO came inside the office of the appellant and conducted the phenolphthalein test on his hands, which proved positive and the comparison of the recovered money with the entrustment mahazar. He had spoken about the preparation of recovery mahazar also. So, from the evidence of P.W.4, it is clear that the appellant had demanded and accepted the money and the same was also recovered. Therefore, demand, acceptance and recovery are proved from the evidence of P.W.4 also.
21.P.W.16 – TLO, who had deposed that he received a complaint against the appellant on 06.01.2004 from the de facto complainant that the appellant demanded bribe for reducing the tax amount. After going through the complaint, he planned for a trap http://www.judis.nic.in 14 and summoned two independent witnesses and held pre trap demonstrations in front of the P.W.2, P.W.3, P.W.4 and the independent witnesses and gave the phenolphthalein coated money to the P.W.2 and instructed him to meet the appellant and to give the money, only if demand was made by the appellant and asked P.W.4 to accompany him and to watch the happening when they met and prepared the entrustment mahazar and they left the place and assembled near the office of the appellant. Further, P.W.2, P.W. 3 and P.W.4 went inside the office of the appellant on the same day at 12.20 pm. He had further deposed about the receipt of the pre arranged signal from P.W.2. He along with his team went inside the office, P.W.2 identified the appellant then P.W.13 introduced himself and he conducted phenolphthalein test on both his hands, which proved positive and the money was compared with the entrustment mahazar and the same was matched and he recovered the tainted money through recovery mahazar and placed the matter before the Investigating Officer. Therefore, from his evidence the recovery of the tainted money is proved.
22.The evidence of P.W.14, who was the Scientific Officer, who conducted the chemical analysis, shows the presence of the phenolphthalein in the solution through which the test was conducted, which is corroborated by EX.P.23.
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23. The learned Counsel for the appellant submitted that there are many contradictions among the prosecution witnesses.
24.A reading of the entire materials placed on record shows that the above said contradictions are not material contradictions, which is not fatal to the case of the prosecution.
25.Though the defence taken by the appellant that the appellant has no role or power and he was not authorised to assess the tax, since he was the Record Clerk, it is to be seen that at the relevant point of time he was allotted the additional charge of bill collection and assessment of tax, which is established through EX.P. 19, the Registrar of Office Order. So the defence taken by the appellant is not acceptable. Even assuming that the appellant had no role in assessment of tax, as defended by the appellant, it is pertinent to note that the appellant himself had admitted the acceptance of Rs.4,700/- and Rs.5,000/-, as tax and he was about to give receipt for the same he was caught red handed. When he had no role or no power, under what authority he received the tax amount? Then it is to be presumed that there was impersonation, which also attracts Section 7 of PC Act.
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26.The further defence taken by the appellant that he had received the amount of Rs.4,700/- for Rs.4,677/- and Rs.5,000/- for the half yearly tax amount. From the evidence of P.W.2, P.W.3 and P.W.4, it is clear that he received the amount and kept in his pocket. If it was the tax amount, he could have kept in the table or drawer or cash box whatever it may be, but he had kept in his pocket. So it is clear that the amount accepted by him was not for tax but it is only as bribe. Further from the oral and documentary evidence, it is seen that there was no practice of issuing separate receipts when the whole tax amount is paid and only one receipt is issued for a year. Even assuming that he had collected the said money only for tax, no receipt or acknowledgment was given or produced to substantiate his defence. So, the presumption can be drawn that the accepted money is only bribe money. So defence taken by the appellant cannot be sustained.
27.Even though, the appellant need not prove his defence by direct evidence, he can very well establish his defence from preponderance of probabilities or probable defence. Whereas in this case, the appellant had made an attempt to do so, but failed to prove his defence in the manner known to law.
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28.Though there is no dispute or quarrel in respect of the legal proposition in the referred to citations, the citations referred to by the learned Senior Counsel for the appellant are not applicable to the case on hand, when the demand, acceptance and recovery are clearly proved with cogent oral and documentary evidence.
29.in view of the foregoing discussion, from the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.13 along with Ex.P.1, Ex.P. 3, Ex.P.7, Ex.P.11 and Ex.P.23, this Courts finds that the prosecution has proved its case beyond reasonable dount that the appellant had demanded illegal gratification and accepted it and the same was recovered from the appellant. In other words, the demand, accepted and recovery are proved.
30.In the result, the present criminal appeal is dismissed and the judgment dated 30.04.2012 made in SC.No.50 of 2012 by the Special Judge, Tiruchirappalli is hereby confirmed.
17.12.2018
Index : Yes/No
Internet : Yes/No
dsk
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To
1.The Special Judge,
for trial of Special Cases under
Prevention of Corruption Act,
Tiruchirappalli.
2.The Inspector of Police,
Vigilance and Anti Corruption Wing,
Thanjavur.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper (2 Copies),
VR Section,
Madurai Bench of Madras,
Madurai.
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P.VELMURUGAN, J.,
dsk
Crl.A.(MD)No.93 of 2012
17.12.2018
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