Madras High Court
Bavanandam vs State Represented By on 18 June, 2015
Pudukkottai.?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.06.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
CRIMINAL APPEAL (MD).No.311 of 2007
Bavanandam ...Appellant/Sole Accused
Vs
State represented by
The Deputy Superintendent of Police,
Vigilance & Anti-Corruption,
Pudukkottai District.
...Respondent/Complainant
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure
against the judgment in Spl.C.C.No.4 of 2002, on the file of the Chief
Judicial Magistrate Court, Pudukkottai, on 13.06.2007.
!For Appellant : Mr.K.Baalasundaram
^For Respondent : Mr.C.Mayilvahana Rajendran
Additional Public Prosecutor
:JUDGMENT
The appellant is the sole accused in Spl.C.C.No.4 of 2002, on the file of the learned Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Pudukkottai. He stood charged for the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. By judgment dated 13.06.2007, the trial Court found him guilty under both charges and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month for the offence under Section 7 of the Prevention of Corruption Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for two months for the offence under Sections 13(2) r/w 13(1)(d) of the prevention of Corruption Act. Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal.
2. The case of the prosecution in brief is as follows:
The accused at the relevant time, was the Village Administrative Officer of Lakshmi Narasimmapuram village in Pudukkottai District. P.W.2 ? Nagaraj, belongs to Pulichankadu hamlet, which falls within Lakshmi Narasimmapuram village limits. According to the case of the prosecution, there was a joint family property owned by P.W.2 and his brother in Survey Nos.56/8, 56/9, 56/10, 56/15, 56/16 and 56/17 in the same village. The patta for the said lands was in the name of his father Mr.M.Shanmugam. There was a partition effected between them in the year 1999, by means of an unregistered partition deed.
2.1. On 20.12.2001, according to the case of the prosecution, P.W.2 met the accused at his office and gave a written request to him for transfer of patta in his name, based on the above partition. It is alleged that at that time, for effecting transfer of patta, the accused demanded a sum of Rs.1,000/- as illegal gratification. P.W.2 told him that he would come again with Rs.1,000/-. Thereafter, P.W.2 went to the Scheme Office and made a written request for transfer of patta. Admittedly, the power to transfer patta was not with the Village Administrative Officer, but with the Scheme Officer. The Scheme Officer, on receiving the said written request (Ex.P.2), made an endorsement and returned the same to P.W.2 and wanted him to hand over the same to the Village Administrative Officer, namely, the accused.
Accordingly, according to P.W.2, he went to the office of the accused and handed over the said petition. At that time, it is alleged that the accused again demanded a sum of Rs.1,000/- as illegal gratification and told him that wherever he could go with any request, ultimately the said request would only reach him. He also wanted P.W.2 to bring his father on the next day.
2.2. On 21.12.2001, P.W.2 went to the office of the accused along with his father. The accused made enquiry with the father of P.W.2. He also expressed no objection for transfer of patta in the name of P.W.2. After the said enquiry, P.W.2 left the office of the accused along with his father. Again on 06.01.2002, P.W.2 went to the office of the accused and enquired about the patta transfer matter. At that time also, it is alleged that the accused demanded a sum of Rs.1,000/- as illegal gratification for the said purpose. P.W.2 assured him to come on the next day with the said amount.
2.3. But on the next day, that was on 07.01.2002, he went to the Vigilance and Anti-Corruption Police Station along with a written complaint about the above demand for illegal gratification made by the accused. P.W.12 was the then Inspector of Police attached to the Vigilance and Anti- Corruption Police Station, at Pudukkottai. On 07.01.2002 at about 10.30 a.m., P.W.2 presented the written complaint to him. On receipt of the same, he registered a case in Cr.No.1 of 2002 under Section 7 of the Prevention of Corruption Act. Ex.P.3 is the complaint and Ex.P.13 is the F.I.R. P.W.12 forwarded Ex.P.3 and Ex.P.13 to the Court and took up the matter for investigation. He planned to arrange for a trap. For that, he sought the help of two Official witnesses. One Ravichandran (P.W.3), Junior Assistant attached to the Highways Department and one Mr.Nagooran, Junior Assistant from H.R.&C.E. Department, came to the office of P.W.12 at his request. P.W.12 narrated to them about the complaint and also conducted demonstration of Phenolphthalein Test. Then, he received 10 Nos. of Hundred Rupees currency notes from P.W.2 (M.O.1 series) and stained the same with phenolphthalein powder. He handed over the same to P.W.2 under a Mahazar with instructions to him to give the said currency notes to the accused, after he demanded. Thereafter, P.W.12 took P.W.2 and P.W.3 to the office of the accused. At about 03.45 p.m., on 07.01.2002, P.W.2 and P.W.3 went into the office of the accused. The accused was sitting in his chair. On seeing P.W.2, the accused told him to sit in the bench nearby him. P.W.2 and P.W.3 sat on the bench. Then P.W.2, enquired the accused about the patta transfer matter. For that, the accused asked as to what had happened to the money demanded by him. He also further told that he made the demand for a sum of Rs.1,000/- not for himself, but for the others. Immediately, P.W.2 took out the above 10 Nos. of currency notes stained with phenolphthalein powder and handed over the same to the accused. The accused received the same and started counting. At that time, P.W.4- Mr.Arunachalam, the Village Assistant was standing behind him. The accused gave the entire amount of Rs.1,000/- to Mr.Arunachalam (P.W.4) and instructed him to give the said amount to the surveyor and to get the work for transfer of patta completed. P.W.4 received the said amount and kept it in his shirt pocket. The accused told P.W.2 that there was a due from him towards land revenue. P.W.2 told him that even this amount of Rs.1,000/- had been mobilized by him with great difficulty and therefore, he could not readily pay any more amount for the land revenue. Then, the accused told P.W.2 that he would take care of the petition for request for the transfer of patta, as the said petition was only in his hands.
2.4. After the above incident was over, P.W.2 and P.W.3 came out of the office of the accused and P.W.2 made a signal to the Inspector of Police. P.W.12, on receiving the signal, rushed into the office of the accused. At 03.50 p.m., he enquired P.W.2 as to what had happened and after having ascertained that the accused had received the money, he went near the accused. On seeing the police, the accused started shivering. Then, P.W.12 conducted Phenolphthalein Test on both his hands. The sodium carbonate solution turned into pink colour, when his fingers were dipped into the same, thereby indicating that in his fingers there was phenolphthalein powder. P.W.12 collected the said solution into two bottles and sealed the same for the purpose of being sent for chemical examination. When he enquired the accused about the money, he told P.W.12 that he had handed over the same to P.W.4. Then P.W.12, conducted a similar Phenolphthalein Test for the fingers of P.W.4, which also proved positive. He collected the said solution into two bottles and sealed the same. Then, when P.W.12 enquired about the money, P.W.4 took out the same from his pocket and handed over to P.W.12. P.W.12 recovered the same in the presence of the witnesses. The numbers of the currency notes tallied with the numbers mentioned in the mahazar. Then P.W.12, recovered the petition given by P.W.2 for transfer of patta under a mahazar (EX.P.2). Then he recovered the receipt book showing that there was payment made by P.W.2 towards any land revenue. When P.W.12 enquired P.W.4 about the money, he told that the accused gave the money to him to give the same to the surveyor to finish the job. Then P.W.12 arrested the accused, brought him to the Police Station and then forwarded him to the Court for judicial remand.
2.5. The bottles containing the solution were sent for chemical analysis. P.W.11 ? Mrs.Mariaselvi Roseline, Scientific Assistant in the Government Lab, has opined that there was phenolphthalein powder in those solutions. P.W.12 handed over the investigation to P.W.13. P.W.13 took up the case for investigation on the same day. He examined P.W.1 to P.W.12 and recorded their statements. The he laid charge sheet against the accused on 31.08.2002, after obtaining sanction for prosecution from P.W.1
3. Based on the above materials, the trial Court framed charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, against the accused and the accused denied the charges. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined and 15 documents were exhibited and seven material objects were also marked. Out of the said witnesses, P.W.1 was the then Revenue Divisional Officer of Pudukkottai and he has spoken about the sanction given by him, for launching prosecution as against the accused, as required under Section 19 of the Prevention of Corruption Act. P.W.2 had vividly spoken about the occurrence. But during cross-examination, he had shown hostility towards the prosecution and therefore, he was treated as hostile and he was cross- examined. P.W.3 is the official witness, who has accompanied P.W.2 during the trap and he has spoken about the same. P.W.4 is the village man, who has spoken about the happenings at the time of trap and the fact that the tainted money was given to him by the accused. P.W.5 is the surveyor, who has spoken about the procedure for transfer of patta and other details. So also the evidences of P.W.6 and P.W.7. P.W.9 is yet another Village Administrative Officer, who took charge of the office, after the arrest of the accused. P.W.10 is the Tahsildar concerned, who has stated that the power to pass order of transfer relating to patta lies with the Scheme Officer He has further stated that any request for transfer of patta given to the scheme officer will be forwarded to the Revenue Inspector and then to the Village Administrative Officer. P.W.11 is the scientific assistant. P.W.12 has spoken about the registration of case and the trap and P.W.13 is the Investigating Officer.
4. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. He took a specific stand that P.W.2 was running a lottery shop. The accused had purchased a lottery ticket and he won price of Rs.1,200/-. He surrendered the lottery ticket to P.W.2 and wanted him to give Rs.1,200/- But P.W.2 gave him only Rs.200/- and the balance was Rs.1,000/-. On several occasions, the accused demanded him to pay the amount, but he did not do so. While so, on one occasion, P.W.2 came to him with a written request for transfer of patta in his name based on the unregistered partition deed. He refused to concede with the said request and in fact, he tore the said petition as worthless. It was not to the liking of P.W.2. He developed a grudge against him. Then the petition given to the Scheme Officer was forwarded to him for his comment. He prepared a note that the patta transfer could not be effected, as there was no registered document for partition. According to the accused, this fact was known to P.W.4, who was closely moving with P.W.2 and P.W.4 inturn had informed the same to P.W.2 Thereafter, because of the above motive and having lost the hope of getting patta transfer, he made a false complaint against him, as though he demanded money. It is his further stand that on 16.01.2003, P.W.2 had written a letter under Ex.D.3 to one of his relatives, wherein he had stated that the complaint given in the present case to the Vigilance and Anti-Corruption police was false and that the accused never demanded any money as illegal gratification. He further admitted in the said letter that he gave Rs.1,000/- only towards the amount due to the accused on account of the above lottery ticket. Thus, according to the accused, a sum of Rs.1,000/-, which was paid by P.W.2 to him was nothing but, a legal due to him. Thus according to him, he has not committed any crime. Having considered the above materials, the trial Court convicted the accused and accordingly punished him. That is how the accused is before this Court with this Criminal Appeal.
5. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent State and also perused the records carefully.
3.The learned Counsel for the appellant would submit that P.W.2 was inimical towards the accused and the said fact has been admitted by him during cross-examination. He would further point out that during the cross- examination, P.W.2 has further admitted that on account of the above lottery ticket, a sum of Rs.1,000/- was due from him to the accused, for which, the accused was repeatedly demanding and harassing him. The learned Counsel would further contend that in Ex.D.3, which has been admitted by P.W.2, he has stated that there is no truth in the allegations in this case and that the accused never demanded any amount as illegal gratification. As a matter of fact, during the trap proceedings, the above sum of Rs.1,000/- paid by him was only towards the legal remuneration i.e. towards lottery ticket. The learned Counsel further submitted that though this witness was treated as hostile, these facts, which have been elicited by the defence, have not been disputed by the prosecution at all. The learned Counsel, therefore, submitted that if the facts elicited during cross-examination of P.W.2 are taken into consideration, the entire case of the prosecution would become doubtful and therefore, the accused is entitled for acquittal. He would further submit that regarding the fact that the accused had prepared a note declining to recommend for partition, as the patta transfer was requested based on the unregistered partition deed, the said note was seized at the time of trap by the police, but the same has been suppressed wantonly. The learned Counsel pointed out that this is also admitted by P.W.2 during cross-examination. The learned Counsel further submitted that though it may be true that the evidences of P.W.3 and P.W.4 are quite contrary to the evidence of P.W.2, their evidences are to be rejected, because as per the fundamental principles of criminal law, when there are conflicting evidences let in by the prosecution, the benefit arising out of such conflict giving rise to doubts should be given only to the accused. Thus, according to him, in the instant case, the prosecution has failed to prove the case beyond reasonable doubts and therefore, the accused is entitled for acquittal.
6. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, during the chief examination, P.W.2 has vividly spoken about the entire occurrence including the previous demand for illegal gratification made by the accused and the demand made at the time of trap and the receipt of illegal gratification. He would point out that however, he was not cross-examined by the defence immediately. He would point out that he was examined in chief on 21.07.2004, whereas, he was cross-examined only on 15.09.2004, i.e. after about 1+ months. During the interregnum period, according to the learned Additional Public Prosecutor, P.W.2 was won over and because of the same, during the cross-examination, P.W.2 has simply nodded his head for all the questions asked in favour of the accused. Therefore, he submitted that no weightage could be given to the evidence of P.W.2 elicited during the cross-examination. For this purpose, the learned Additional Public Prosecutor relies on the judgment of the Honourable Supreme Court in Akil Alias Javed Vs. State (NCT of Delhi) reported in (2013)7 Supreme Court Cases 125.
7. The learned Additional Public Prosecutor would further submit that there are no reasons to reject the evidence of P.W.3 and P.W.4, whose evidences would clearly go to show that during the trap proceedings, the accused demanded illegal gratification and that the above said tainted money of Rs.1,000/- was paid only as illegal gratification. He would further submit that the chief examination of P.W.2 and the evidences of P.W.3 and P.W.4 would clearly go to establish the case of the prosecution. So far as Ex.D.3 is concerned, according to the learned Additional Public Prosecutor, the said document has been cooked up for the purpose of defence and therefore, no weightage could be attached to the same. He would further submit that there was no such office note prepared by the accused, on the request made by P.W.2, declining to recommend for transfer of patta and no such document was seized by the police at that time and what were seized at the time of trap from the office of the accused were the petition given by P.W.2 and the receipt book. Thus, according to the learned Additional Public Prosecutor, the prosecution has clearly proved the case beyond any reasonable doubts.
8. I have considered the above submissions.
9. There are two parts in this case. The first part is regarding the alleged illegal demand for gratification made by the accused, prior to the registration of the case. Regarding the said event, the prosecution relies only on the evidence of P.W.2. In the chief examination, though P.W.2 has stated about such illegal demand, during cross-examination, he has given a complete go by. The said witness has been treated as hostile at the fag end. Thus, the prosecution itself does not want this witness to be fully believed. The prosecution wants this Court to believe the evidence let in, during the chief examination of P.W.2 and to disbelieve the evidence of P.W.2 during cross-examination. In other words, even according to the prosecution, P.W.2 is partly believable and partly unbelievable. It is too well settled by the Honourable Supreme Court in Vadivelu Thevar vs. State of Madras reported in AIR 1957 C.614 that if a witness is partly believable and partly unbelievable, as a rule of caution, the Court should look for corroboration from independent sources on material particulars. In the absence of any such corroboration, according to the Honourable Supreme Court, it would be imprudent to act upon the evidence of such witness. In this case, regarding the alleged demand made by the accused prior to the registration of case, except the evidence of P.W.2, the prosecution does not have any other evidence either substantive or corroborative in nature. Therefore, I am of the considered view, as has been held by the Honourable Supreme Court, it is highly unsafe to act upon the evidence of P.W.2 in respect of the alleged demand made prior to the registration of the case.
10. The learned Additional Public Prosecutor would further submit that since the cross-examination was conducted after 1 + of months of chief examination, there was every possibility that the witness would have been won over by the accused. Such possibility cannot be ruled out. But, it is also to be seen that the said witness was not treated as hostile and cross- examined immediately by the prosecution also. The witness was treated as hostile and cross-examined again after one month. It is also not suggested to P.W.2 during cross-examination that he had been won over by the accused. It is also curious to note that many facts spoken to by P.W.2, which go in favour of the accused, has not been disputed by the Special Public Prosecutor. Therefore, this argument made by the learned Additional Public Prosecutor deserves to be rejected.
11. Now turning to the trap proceedings, the prosecution relies on the evidences of P.W.2, P.W.3 and P.W.4. On one side, P.W.3 and P.W.4 have fully supported the case of the prosecution, whereas P.W.2 has not done so. But the vital document in this case, upon which the accused makes reliance has not been disputed by the prosecution, i.e, Ex.D.3. Ex.D.3 is a letter sent by P.W.2 to one of his relatives about this case, wherein he stated that the accused never demanded any amount as illegal gratification and during the trap proceedings, the said sum of Rs.1,000/- was paid by him only towards the legal remuneration i.e. towards the due under the lottery ticket. This document was proved through P.W.2. P.W.2 has admitted the contents of the same. Though P.W.2 was cross-examined after 1 + months by the prosecution with the permission of the Court, the genuineness of this letter has not been doubted and questioned. The cross-examination made by the Special Public Prosecutor would go to show that there is no dispute at all regarding the genuineness of this document. Though the learned Additional Public Prosecutor would now contend that this document had been cooked up by the defence for the purpose of this case, absolutely, there is no such case put forward to P.W.2 during cross-examination by the Special Public Prosecutor. Thus, in short, Ex.D.3 remains unassailed. When that be so, I do not find any reason to reject the contents of Ex.D.3. If this document is duly considered in favour of the accused, then, the evidences of P.W.3 and P.W.4 become highly doubtful. It is well settled that when there are two sets evidences let in by the prosecution, one contradicting the other, it is always desirable that the set off evidence in favour of the accused has to be taken into account, in tune with a fair trial to be afforded to the accused under Article 21 of the Constitution of India. In these kinds of cases, where the punishment is so stringent, the proof of guilt should be very strict. In other words, the prosecution is bound to prove the case beyond every reasonable doubt. Here, in this case, the oral evidence of P.W.2 during the cross-examination making admission of so many facts in favour of the accused and the documentary evidence by way of Ex.D.3 have completely destroyed the case of the prosecution. The benefit arising out of these documents should naturally go only in favour of the accused.
12. Nextly, it is pointed out by the accused that there was a motive between him and P.W.2. This motive was exclusively known to him and P.W.2 alone. P.W.2 has admitted the said motive and it is also his case that on one occasion when P.W.2 gave a written request for transfer of patta, he tore it, as it was not of worth considering, since the request was made based on the unregistered partition deed. This fact has also been admitted by P.W.2. Having failed to get a favourable order from the accused, P.W.2 had gone to the scheme office. The petition was again forwarded to the accused. According to the accused, he prepared a negative note declining to recommend for transfer of patta and this was seized by the police and the same was suppressed. P.W.2 has admitted that the said document was seized. This has also not been disputed seriously by the prosecution, while cross examining P.W.2. All these facts also create doubt in the case of the prosecution.
13. In view of the foregoing discussions, I find that the prosecution has succeed only in making out a very strong suspicion against the accused. The said suspicion would not take the place of proof. Therefore, I am constrained to hold that the prosecution has failed to prove the case against the accused beyond all reasonable doubts and therefore, the accused is entitled for acquittal.
14. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the accused/appellant by judgment dated 13.06.2007, passed in Spl.C.C.No.4 of 2002, by the learned Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Pudukkottai is set aside and the appellant is acquitted from all the charges levelled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond, if any, shall stand terminated.
To
1. The Court of Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Pudukkottai.
2.The Deputy Superintendent of Police, Vigilance & Anti-Corruption, Pudukkottai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court,