Madras High Court
X.Victor De Rose vs State Represented By on 2 December, 2020
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.12.2020
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.A.(MD)No.506 of 2019 AND
CRL.A(MD)No.97 of 2020
CRL.A.(MD)No.506 of 2019
X.Victor De Rose ... Appellant/Sole Accused
Vs.
State Represented by,
The Deputy Superintendent of Police,
Vigilance and Anti-Corruption police station,
Tirunelveli,
Tirunelveli District.
(Crime No.8 of 2002) ... Respondent/Complainant
Prayer: Criminal Appeal is filed under Section 374(2)
of Cr.P.C., to call for the records in Special Case No.10 of
2014 on the file of the learned Special Judge, Special Court for
Trial of Cases under Prevention of Corruption Act, Tirunelveli,
Tirunelveli District and set aside the Judgment dated
16.10.2019 and acquit the accused/appellant of the charges.
CRL.A.(MD)No.97 of 2020
X.Victor De Rose ... Appellant/Petitioner/Convict
Vs.
State Represented by,
The Deputy Superintendent of Police,
Vigilance and Anti-Corruption police station,
Tirunelveli,
Tirunelveli District.
(Crime No.8 of 2002) ... Respondent/Respondent/
http://www.judis.nic.in
Complainant
2
Prayer: Criminal Appeal is filed under Section 454 of
Cr.P.C., to call for the records in Cr.M.P.No.12 of 2020 in
Special Case No.10 of 2014 on the file of the learned Special
Judge, Special Court for Trial of Cases under Prevention of
Corruption Act, Tirunelveli, Tirunelveli District and set aside
the order dated 13.01.2020.
(in both Crl. Appeals)
For Appellant : Mr.A.Ramesh,
Senior Counsel,
for Mr.A.Thiruvadi Kumar.
For Respondent : Mr.A.Robinson,
Government Advocate(Crl. Side).
***
COMMON JUDGMENT
Heard the learned Senior counsel appearing for the appellant and the learned Government Advocate(Crl. Side) appearing for the respondent.
2. Crl.A.(MD)No.506 of 2019 has been preferred against the Judgment dated 16.10.2019 passed by the Special Court for Trial of Cases under Prevention of Corruption Act, Tirunelveli, in Special Case No.10 of 2014.
3. By the impugned Judgment, the appellant was found guilty of the offences under Sections 7, 13(2) r/w. 13(1) http://www.judis.nic.in 3
(d) of Prevention of Corruption Act 1988 and sentenced as follows:-
Offence u/s.
7 of To undergo 3 years Simple Imprisonment and Prevention to pay a fine of Rs.10,000/- in default to of undergo Simple Imprisonment for 6 months.
Corruption Act 13(2) r/w. To undergo 3 years Simple Imprisonment and 13(1)(d) of to pay a fine of Rs.10,000/- in default to Prevention undergo Simple Imprisonment for 6 months. of Corruption Act The sentenced were ordered to run concurrently.
4. The case of the prosecution is as follows:-
The case of the prosecution is that the appellant was working as Revenue Divisional Officer, Tirunelveli, from 07.11.2001 to 05.09.2002. On 28.07.2002, the appellant along with other officials conducted a joint surprise check/inspection of the sand quarry run by the defacto complainant K.Mahendran and others. It was found that there was illicit quarrying of sand. The appellant issued show cause notice to the lessee Shanmuga Sundaram calling upon him to show cause as to why a sum of Rs.74,09,000/- should not be levied on him. On 29.08.2002 at about 8.00 p.m., the defacto http://www.judis.nic.in 4 complainant and his partner Paramasivaiyyappan met the appellant in his office in connection with the issuance of the show cause notice and they had explained to him that they were not responsible for the illicit sand quarrying. On the said day, the appellant demanded a sum of Rs.5,90,000/- towards illegal gratification for reducing the penalty to be imposed on them. He wanted initial payment of Rs.90,000/- to be made on
05.09.2002 at his residence at about 7.00 p.m. Mahendran lodged complaint before the Vigilance and Anti-corruption Detachment, Tirunelveli, on 05.09.2002 at 3.00 p.m. Crime No.8 of 2002 was registered under Section 7 of Prevention of Corruption Act. Trap proceedings were organized by the Deputy Superintendent of Police, Vigilance and Anti- Corruption Wing, Tirunelveli. The accused reiterated his demand at about 7.45 p.m. at 05.09.2002 at his residence and accepted the amount of Rs.90,000/- offered by K.Mahendran. Immediately thereafter, the trap laying party entered the house of the appellant and subjected him to Phenolphthalein test. The test was positive. The bribe amount of Rs.90,000/- was also recovered from the left side drawer of the table in the residence of the appellant. After conducting investigation, final report was filed before the Chief Judicial Magistrate, http://www.judis.nic.in 5 Tirunelveli who took cognizance of the same and issued summons to the accused.
5. Copies were also furnished under Section 209 of Cr.P.C. and charges were framed under Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act 1988. The charges were read over to the accused who pleaded not guilty and claimed to be tried. Subsequently, the case was transferred to the Special Court. The prosecution examined as many as 18 witnesses and marked Ex.P.1 to Ex.P.37. M.O.1 to M.O.4 were also marked. On the side of the accused, no witnesses were examined. The learned trial Judge put all the incriminating circumstances appearing against the accused during the examination under Section 313 of Cr.P.C. The accused denied the same and also filed his defence statement. After considering the entire evidence of record, the learned Judge held that the prosecution had proved its case against the accused beyond reasonable doubt. The accused was found guilty and sentenced as mentioned above. Challenging the same, Crl.A.(MD)No.506 of 2019 has been filed. http://www.judis.nic.in 6
6. The learned Senior counsel appearing for the appellant/accused took me through the entire evidence on record and contended that the prosecution case is riddled with serious lacunae and illegalities and wanted this Court to set aside the impugned Judgment. Detailed written submissions have also been filed.
7. Per contra the learned Government Advocate submitted that the impugned Judgment does not warrant any interference and wanted this Court to dismiss the appeal.
8. I carefully considered the rival contentions.
9. It is not in dispute that the appellant was working as Revenue Divisional Officer, Tirunelveli, from 07.11.2001 to 05.09.2002. It is also not in dispute that P.W.5 Shanmugasundaram was given the leasehold right to quarry Survey No.1782 of Sivalaperi Village for a sum of Rs.2,83,00,000/- vide Ex.P.13. P.W.5 in his deposition admitted that he had taken the quarry on lease along with 18 others. Barani Minerals is the name of the entity. P.W.2 Mahendran was also one of the partners. P.W.5 admitted that he had http://www.judis.nic.in 7 authorised P.W.2 Mahendran and one Iyyappan to run the quarry. Ex.P.2 is the consent letter given by him to the Government. It was Mahendran and Iyyappan who were managing the quarry operations. Vide Ex.P.3 dated 12.08.2002, the appellant in his capacity as Revenue Divisional Officer, Tirunelveli, issued notice to P.W.5 informing him that an inspection was conducted and it revealed that illicit sand quarrying had been committed and therefore, it was proposed to levy a sum of Rs.74,09,000/- representing the cost of mineral and seigniorage fee together with 15 times penalty. P.W.5 was called upon to offer his explanation in that regard. Though the evidence of P.W.5 does not implicate the appellant in any manner, it can be seen therefrom that it was P.W.2 Mahendran and Iyyappan who were actually carrying on the quarry operations.
10. P.W.2 Mahendran testified that on 28.07.2002, a surprise inspection was conducted and that on 12.08.2002 show cause notice was issued. An explanation was made ready and after obtaining the signature of P.W.5 Shanmugasundaram, the same was handed over to the accused/appellant on 29.08.2002 at about 8.00 p.m. The http://www.judis.nic.in 8 specific allegation of P.W.2 was that on that date (i.e) 29.08.2002, the accused made a demand for payment of Rs. 5,90,000/- as illegal gratification. According to P.W.2, the accused told him and Iyyappan to bring a sum of Rs.90,000/- on 05.09.2002 at about 7.00 p.m. to his residence and hand it over. He further stated that they would have to pay a further sum of Rs.5,00,000/- towards reduction of the amount set out in Ex.P.3 Show Cause Notice. Since they were not inclined to pay any bribe amount, they decided to approach the Vigilance and Anti-Corruption Detachment, Tirunelveli, on 05.09.2002. They withdrew a sum of Rs.90,000/- from their joint bank account and went to the office of the respondent at about 3.00 p.m. They met P.W.4 Deputy Superintendent of Police and narrated the events. P.W.4 Deputy Superintendent of Police recorded the statement of P.W.2. P.W.2 read the same and signed it. It was marked as Ex.P.5. Based on the same, P.W.4 Deputy Superintendent of Police registered Ex.P.11 First Information Report in Crime No.8 of 2002. At around 5.00p.m., the shadow witnesses, namely, Thiru.James Tharmabalan from Tamil Nadu Electricity Board and P.W.3 Thiru.Sundar from Agriculture Department had come. They were appraised the details of the case. P.W.2 handed over a http://www.judis.nic.in 9 sum of Rs.90,000/- to P.W.4 Deputy Superintendent of Police. Thiru.James Tharmabalan counted the same. Thereafter, pre- trap formalities were carried out. Phenolphthalein powder was applied on the currency notes. There were totally 180 currency notes each of which Rs.500 in denomination. Ex.P.7 Entrustment Mahazar containing all the currency particulars were also prepared by P.W.4 Deputy Superintendent of Police. The trap laying officer and the shadow witnesses and P.W.2 left for the residence of the accused in a police jeep. They reached the residence of the accused at around 7.30 p.m. They parked the vehicle at a distance. P.W.2 and Paramasivaiyyappan entered the house of the Revenue Divisional Officer. As instructed, P.W.2 had switched on the mobile phone kept in his shirt packet. The accused was available in the house. When P.W.2 enquired him regarding reduction of the penalty amount, the Revenue Divisional Officer took a file and wrote out certain figures as to how the penalty can be varyingly fixed. He is said to have rounded the lowest figure in green ink. This was marked as Ex.P.8 and it reads as under:-
http://www.judis.nic.in 10 http://www.judis.nic.in 11
11. According to P.W.2, the accused asked P.W.2 to hand over the amount brought by him. Thereupon P.W.2 took out a sum of Rs.90,000/- and gave it to him. The accused received the same with his right hand and kept it in his table drawer. This happened at about 7.45 p.m. Thereafter, as per prior arrangement, Paramasivaiyyappan from his mobile phone gave a message to the trap laying officer. Immediately, the trap laying officer, P.W.4 Deputy Superintendent of Police and the police personnel and the shadow witnesses entered the house of the accused. P.W.2 identified the accused to the trap laying officer and told him that he had kept the bribe amount in the left side drawer of the table and also the file in which the calculations for computing the penalty were made.
The bribe amount of Rs.90,000/- was marked as M.O.1.
12. P.W.3 Sundar was one of the shadow witnesses. He deposed that based on the instruction of his superior, he went to the office of the Vigilance and Anti-corruption Detachment on 05.09.2002 at about 4.00 p.m. He corroborated the testimony of P.W.2 with regard to what happened at the pre-trap stage. He claimed that he had switched on his mobile phone. He heard the conversation http://www.judis.nic.in 12 between P.W.2 Mahendran and the accused. P.W.2 Mahendran requested the accused to reduce the penalty amount and solve the issue. P.W.3 corroborated the testimony of P.W.2. He stated that he heard P.W.2 Mahendran asking whether for reducing the penalty to twice seigniorage fee, a sum of Rs.5,00,000/- is to be paid. He also stated that the accused was heard saying that it can be seen later and that P.W.2 can pay the amount he had brought. Thereafter, signal was received by P.W.4 Deputy Superintendent of Police. Immediately, the trap laying party entered the house of the accused. The accused was subjected to Phenolphthalein test. The right hand fingers of the accused were dipped into Sodium Carbonate Solution and the same turned Pink. After completing other formalities, Ex.P.9 Seizure Mahazar was prepared. The house was also subjected to search and certain articles were seized. This search list was marked as Ex.P.10.
13. P.W.4 was the trap laying officer. He was working as Deputy Superintendent of Police, Vigilance and Anti-corruption police station, Tirunelveli, during the relevant time. He stated that on 05.09.2002 at about 3.00 p.m., P.W.2 Mahendran came to his office and also lodged an oral http://www.judis.nic.in 13 complaint. It was recorded by him. On his request, P.W.3 Sundar and one James Tharmabalan came to his office to act as shadow witnesses. Crime No.8 of 2002 was registered. After appraising the defacto complainant and the shadow witnesses regarding the trap formalities, the entrustment mahazar was prepared. P.W.2 Mahendran, Paramasivaiyyappan and shadow witnesses were given prior instructions regarding the trap. Based on the same, when Paramasivaiyyappan gave a missed call signal, the trap laying officer P.W.4 and other members of the trap laying party entered the house of the accused. After introducing himself, P.W.4 subjected the accused to Phenolphthalein test. The right hand of the accused turned Pink and thus, the test was positive. The bribe amount was recovered from the table of the accused. The same was compared with the details set out in Ex.P.7 Entrustment Mahazar and they were found to tally. Ex.P.8 and other files that pertained to the defacto complainant, bribe amount of Rs.90,000/- and Phenolphthalein solutions were seized. The accused was arrested at 9.15 p.m. and mahazar was also prepared. In the said mahazar, the shadow witnesses as well as the police personnel signed. The Rough Sketch Ex.P.12 was also prepared. After completing his http://www.judis.nic.in 14 part of the investigation, P.W.4 handed over the case file to his superior for carrying on investigation.
14. P.W.6 was working as Head Constable during the relevant time and based on the request of the trap laying officer P.W.4, he procured a mobile phone from his relative, by name Abbas. P.W.7 Veilappan was the bank official who testified that on 05.09.2002, a sum of Rs.90,000/- was deposited in the bank account of P.W.2 and withdrawn. P.W.8 Manikandan was working as Superintendent in the Department of Geology and Mining and he deposed regarding the quarry lease file of P.W.5. P.W.9 Venkatachalapathy was working as P.A. to District Supply Officer. He deposed that the calculations found in Ex.P.8 were written by one Assistant, by name, Ramasamy. P.W.10 Sankaran was working as Assistant and he deposed that on 29.08.2002, he had accompanied the accused, when he conducted two inquests and returned with him. P.W.11 was the driver for the accused during the relevant time. He had driven the official vehicle on 29.08.2002. He had entered in the log book that they left at 9.30 a.m. in the morning and returned at 9.30 p.m. P.W.12 Mohamed Iqbal was the Circle Inspector during the relevant http://www.judis.nic.in 15 time and he confirmed that on 29.08.2002, the accused had conducted two inquests. P.W.16 Vishalatchi was working as Assistant Director in the Forensic Science Department and she gave Ex.P.26 Chemical Analysis Report. P.W.17 Perumalsamy was working as Additional Superintendent during the relevant time and it was he who took over the investigation from the trap laying officer. He examined the remaining witnesses and after getting Ex.P.1 Sanction from P.W.1 filed final report on 12.08.2007. P.W.18 Abbas gave his mobile phone to his uncle P.W.6 on his request.
15. The learned Senior counsel appearing for the appellant would strongly contest the credibility of the prosecution version. According to him, there are two infirmities in the prosecution case that go to the root of the matter. He would point out that mere recovery of the bribe amount cannot lead to the conclusion of the prosecution to establish its case beyond reasonable doubt. The prosecution is obliged to prove that there was a demand for payment of illegal gratification. In this regard, the learned Senior counsel placed reliance on the decision of the Hon'ble Supreme Court reported in (2016) 12 SCC 150(V.Sejappa V. State) and also http://www.judis.nic.in 16 an unreported decision of this Court made in Crl.A.(MD)No. 262 and 272 of 2014 dated 11.05.2020. He would contend that there was absolutely no demand whatsoever by the appellant for payment of any illegal gratification. The learned Senior counsel would deny that there was any meeting between the accused and the defacto complainant on 29.08.2002 at about 8.00 p.m. in the office of the Revenue Divisional Officer as claimed by the prosecution. According to the defence, the accused conducted two inquests on the said date. After conducting the same, the accused reached his office only at 9.30 p.m and thereafter, straightaway went home.
16. The learned Senior counsel would also point out that there was undue delay in launching the prosecution by P.W.2. Though P.W.2 would claim that the demand for payment of illegal gratification was made on 29.08.2002, the information was lodged before the respondent only on 05.09.2002 at 3.00 p.m. There is absolutely no explanation forthcoming for this delay. Though P.W.2 would claim that he had discussed the issue with his partners, P.W.2 denied the knowledge of the same. He also pointed out that from the evidence of the bank official, it is seen that the amount of http://www.judis.nic.in 17 Rs.90,000/- was deposited only on 05.09.2002 and immediately withdrawn thereafter. The bank account contained negligible amount otherwise. He also commented, it is rather strange that the defacto complainant should have taken a sum of Rs.90,000/- along with him to the office of the Vigilance and Anti-corruption Detachment. The learned Senior counsel pointed out that there is discrepancy between the testimony of P.W.2 and that of P.W.4 in the matter of writing the complaint and registering the First Information Report. It is also strange that the shadow witnesses were present simultaneously. According to the defence, the time line is inherently improbable. The complaint is said to have been lodged at 3.00 p.m. But the entire complaint was reduced to writing immediately thereafter and the shadow witnesses were also present by 4.00 p.m. itself.
17. The learned Senior counsel pointed out that the accused was holding the rank of Revenue Divisional Officer. But the shadow witnesses were not holding any higher position. The trap laying officer did not verify the general reputation of the accused. The Phenolphthalein test was not conducted on both the hands. After the trap was conducted, http://www.judis.nic.in 18 the statement of the accused was not recorded. The specific case of the prosecution was that P.W.2 Mahendran and Paramasivaiyyappan alone went to the residence of the accused. While P.W.4 and other police personnel were waiting outside, Paramasivaiyyappan was to give a missed call to the trap laying officer. P.W.3 Sundar had switched on his mobile phone and he claimed that he heard the entire conversation. If that be so, it was very easy to establish these aspects by simply procuring the call data in respect of the concerned mobile numbers. But it was not done. Since the best evidence was not produced before this Court, this Court ought to disbelieve the entire prosecution case.
18. According to the learned Senior counsel, several provisions of DVAC manual, such as Rule 41, Rule 42, Rule 46, Rule 47 and Rule 49 have been breached. Ex.P.12 Rough Sketch does not refer to the relevant position of the accused and the members of the trap laying party in the scene of crime. One Krishnan, Masalchi of the accused was said to have received the defacto complainant and Paramasivaiyyappan and asked them to wait when he went to fetch the accused from inside the house. Though the http://www.judis.nic.in 19 investigation officer admits that he recorded the statement of Krishnan, he did not choose to send the same to the Court. This deliberate omission of P.W.17 was strongly highlighted by the learned Senior counsel. He also pointed out that Krishnan was not even examined as witness. He was the only independent witness present who could have confirmed the prosecution case and his non-examination is fatal. He also pointed out that P.W.2 Mahendran and Paramasivaiyyappan had been acting as Siamese twins. Paramasivaiyyappan had accompanied P.W.2 on 29.08.2002 as well as on 05.09.2002. For reasons best known, Paramasivaiyyappan was not examined. Admittedly, Paramasivaiyyappan gave a missed call to the trap laying officer and therefore his non-examination is a serious infirmity. He also pointed out that though there were two shadow witnesses, James Tharmabalan was not examined and no explanation was forthcoming for his non-examination.
19. The core argument of the learned Senior counsel was that P.W.2 has not come to the Court with clean hands and since his testimony is doubtful, there was need for corroboration. Since there was no corroboration that there was a demand from the side of the accused, the entire case http://www.judis.nic.in 20 has to fail. In this regard, the learned Senior counsel placed reliance on the decision of the Hon'ble Supreme Court reported in 1997 SCC(Cri) 283(M.K.Harshan V. State of Kerala). He drew my attention to the following ratio set out in the aforesaid decision:-
“8. .. there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence.
Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.”
20. The learned Senior counsel reiterated all the contentions set out in the written submission and submitted that the prosecution had miserably failed to establish its case against the appellant herein.
http://www.judis.nic.in 21
21. I am not persuaded by the aforesaid submission of the learned Senior counsel. As pointed out by the learned Government Advocate, the decision of the Hon'ble Supreme Court reported in (2012) 11 SCC 642 (Mukut Bihari V. State of Rajasthan) answers atleast two of the contentions raised by the learned Senior counsel appearing for the appellant. It has been clearly held in the said case that the acceptance of submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration for the case of the prosecution. Only if the evidence is found to be unreliable or there is contradiction, corroboration may be necessary. Likewise non-observance of the instructions in the Vigilance manual will not vitiate the proceedings. They are merely instructions and guidelines and they do not have statutory force and therefore non-observance thereof would not vitiate the proceedings.
22. It is true that the prosecution is obliged to establish the demand for payment of illegal gratification by the accused. Now the question is whether this has been http://www.judis.nic.in 22 established beyond reasonable doubt. P.W.2 had stated that on 29.08.2002 at about 8.00 p.m., the accused made the demand. P.W.2 had categorically deposed in this regard. The stand of the defence is that on the said date, the accused was busy in conducting inquests in connection with two death cases and that there was no meeting as claimed by P.W.2. But then, this stand of the accused is falsified by the testimony of his own driver, namely, P.W.11 Ananthan. Though he had stated that after conducting two inquests they came to the office, he would further state that he spoke to P.W.2 Mahendran and Paramasivaiyyappan in the office of the accused on the said date. Thereafter, P.W.11 brought the accused as well as two other officials to the house and since the accused had to leave his native place, namely, Trichy, he was dropped in Thiruvallur bus stand. Though in the cross examination, he admitted that he did not see P.W.2 or Paramasivaiyyappan meeting the accused, he confirmed that on 29.08.2002, the accused returned to the office after the inquest was over and that he saw P.W.2 and Paramasivaiyyappan in the office of the accused. More than anything else, the explanation given by P.W.5 Shanmugasundaram to the show cause notice dated http://www.judis.nic.in 23 12.08.2002 was marked as Ex.P.4. It was received on 29.08.2002. This more than establishes the prosecution case beyond all reasonable doubt. According to the prosecution, the accused made the demand not only on 29.08.2002 but also on 05.09.2002 at his residence. P.W.3 the shadow witness categorically stated that he heard through his mobile phone the demand made by the accused.
23. It is true that the prosecution could have bolstered its case by producing the call data. Non-production of the call data is no doubt a lapse on the part of the prosecution. But we must remember that we are dealing with the case pertaining to the year 2002. In any event, this lapse is not so serious as to go to the root of the matter. P.W.3 is an independent witness. He has nothing personal against the accused.
24. I therefore hold that the prosecution had clearly and convincingly established the allegation of the demand made by the appellant beyond reasonable doubt. It is further corroborated by one other circumstance. Ex.P.8 contains certain figures. It is not in dispute that the accused had the http://www.judis.nic.in 24 authority to reduce the penalty amount indicated in Ex.P.3 notice. Ex.P.8 is said to have been written by one Ramasamy. Of course, Ramasamy is no more. But then, a particular figure which is double that of seigniorage fee has been rounded in green ink. Obviously, Ramasamy who was in the cadre of Assistant could not have used green ink. Ex.P.8 was seized from the house of the accused. P.W.9 Venkatachalapathy was working as Personal Assistant to the Revenue Divisional Officer during the relevant time. He had clearly deposed that the figure was rounded by the accused in green ink. He further deposed that during the relevant time, in the office except the Revenue Divisional Officer, no one would use green ink. He also deposed that on 29.08.2002, the relevant file was placed before the accused and in that file on the said date, he had made an endorsement “speak”. The same was marked. The file was marked as Ex.P.17. Ex.P.8 is the part of the said file handled by the accused. In Ex.P.8, it has been mentioned that if the penalty was levied at a particular rate, the amount would come to Rs.19,71,750/- and if the penalty was levied at twice the rate, the amount would come to Rs.23,60,125/- and if the penalty was levied at thrice the rate, the amount would come to Rs.27,48,500/-. The penalty fixed at seigniorage rate http://www.judis.nic.in 25 was rounded in green ink by the accused. Of course he admitted that he did not see the accused rounding the particular figure in green ink.
25. The learned Senior counsel commented that if really the accused had made the demand on 29.08.2002, P.W.2 would have lodged complaint immediately thereafter. It is true that there was a delay on the part of P.W.2 in lodging the complaint. But then, the delay by itself will not in any way vitiate the prosecution case. According to P.W.2, the accused had called upon them to pay the first installment of Rs.90,000/- on 05.09.2002 at about 7.00 p.m. in his residence. Since P.W.2 was not willing to pay the amount, he had approached the respondent on 05.09.2002 at about 3.00 p.m. The learned Senior counsel commented that the conduct of P.W.2 was improbable as he appears to be well acquainted with the procedures of the Vigilance and Anti-corruption Department.
26. This Court must take note of the fact that P.W.2 is a seasoned businessman. He has been engaged in quarrying operations and that it was a venture of about 19 persons. http://www.judis.nic.in 26 Authorisation was given to P.W.2 and one other person to conduct the quarry operations. From this, one can come to the conclusion that P.W.2 was probably well aware of the ways of the world. Therefore, the conduct of P.W.2 appears to be natural.
27. The learned Senior counsel also pointed out that the amount of Rs.90,000/- was deposited only on the said date and immediately withdrawn thereafter. There is no merit in this contention. As rightly pointed out by the learned Government Advocate, the lease amount itself is more than Rs.2,83,00,000/-. Therefore, the amount of Rs.90,000/- could not have been difficult to mobilise at all. The complaint was made ready at 3.00 p.m. as per Section 154 of Cr.P.C. The officer received the oral complaint placed it on record. There is nothing exceptional in the fact that the shadow witnesses reached the office of the respondent at around 4.00 p.m. In any event, the First Information Report as well as the Entrustment Mahazar(Ex.P.5 and Ex.P.7) reached the jurisdictional Court on the same date at about 7.45 p.m. The trap had taken place at the same time. That the First Information Report as well as the Entrustment Mahazar http://www.judis.nic.in 27 reached the Court in time reinforces the credibility of the prosecution case.
28. It is true that Masalchi of the accused, namely, Krishnan was not examined as a witness. The learned Senior counsel pointed out that this Court should draw adverse inference against the prosecution case. P.W.17 admitted that he examined Krishnan but did not send the statement recorded under Section 161 of Cr.P.C. to the Court. I am of the view that no adverse inference need to be taken against the prosecution on this score. Krishnan was a Government employee. The accused admitted having met P.W.2 and Paramasivaiyyappan at his residence during the relevant time. His only defence is that P.W.2 held his hands and begged him to oblige him and that he had told them sternly to go away and not discuss official matters at his residence. The contention is that Krishnan received P.W.2 and Paramasivaiyyappan and asked them to wait in the front office, when he went to fetch the accused. During that time, according to the defence, the bribe amount of Rs.90,000/- was placed by P.W.2 in the left hand side drawer of the table. If Krishnan was actually present throughout and no demand was made by the accused, nothing http://www.judis.nic.in 28 stopped the accused from examining the said Krishnan. Krishnan was a Government Employee. Even if he had retired, his whereabouts could have been very easily traced. Since the meeting itself is not denied by the accused, non-examination of Krishnan does not in any way weaken the prosecution case. The testimony of P.W.3 Sundar and recovery of Ex.P.8 along with file would go a long way in corroborating the testimony of P.W.2. As pointed out earlier, the stand of the accused was one of total denial of even the meeting said to have taken place on 29.08.2002. Since this denial has been found to be false, this Court will have to draw adverse inference.
29. Of course, Paramasivaiyyappan who was also a material witness was not examined by the prosecution. It is quite possible that he had been won over or some difference of opinion had developed between P.W.2 on the one hand and Paramasivaiyyappan on the other. Since the evidence on record is more than sufficient to sustain the finding of guilt, non-examination of Paramasivaiyyappan does not weaken the case of the prosecution. The Court below had exhaustively analysed the evidence on record and came to a clear finding that the prosecution had established its case beyond reasonable doubt.
http://www.judis.nic.in 29
30. After carefully going through the entire evidence on record and after considering the contentions advanced by the learned Senior counsel, I am of the view that no case has been made out for interfering with the finding rendered by the trial Court. The conviction imposed on the appellant is confirmed. However, taking note of the age of the appellant, I am of the view that the interest of justice will be served by imposing only minimum sentence on the appellant. The sentence of imprisonment imposed on the appellant is reduced from three years Simple Imprisonment to one year Simple Imprisonment.
31. With this modification in the matter of sentence, Crl.A.(MD)No.506 of 2019 stands partly allowed. It appears that the appellant was not let out on bail immediately. He had only come out on statutory bail. Therefore, the period of incarceration already undergone by the appellant shall be set off in terms of Section 428 of Cr.P.C.
32. The appellant has also taken out an application for return of a sum of Rs.42,520/- recovered from his residence. http://www.judis.nic.in 30 Since it has not been shown that the said amount represents illegal gratification, the Court below ought to have returned the said amount to the appellant herein. The impugned order in Crl.A.(MD)No.97 of 2020 stands set aside. Crl.A.(MD)No.97 of 2020 stands allowed.
02.12.2020
Index : Yes / No
Internet : Yes/ No
pmu
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
1. The Special Judge, Special Court for Trial of Cases under Prevention of Corruption Act, Tirunelveli, Tirunelveli District
2. The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 31 G.R.SWAMINATHAN,J.
pmu Crl.A.(MD)No.506 of 2019 AND CRL.A(MD)No.97 of 2020 02.12.2020 http://www.judis.nic.in