Madras High Court
P.Mani vs The State
Crl.A.No.431 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
01.09.2022 22.09.2022
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.A.No.431 of 2015
P.Mani,
Son of Pallaniappa Gounder,
5/478, Mosan Goundan Valsu,
Olakkai Chinnanallur Post,
Sankari Taluk,
Salem District. ... Appellant
Vs.
The State, Rep. by
Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Erode. ... Respondent
Prayer: Criminal Appeal filed under Section 374 (2) of Cr.P.C., to set aside the
Judgment passed in Special Case No.1 of 2015, dated 11.06.2015, on the file of
the learned Chief Judicial Magistrate, Thirupur, consequently allow the Appeal.
For Appellant : Mr.K.Prabakar
for Ms.P.T.Rama Devi
For Respondent : Mr.S.Udaya Kumar
Government Advocate (Crl. Side)
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https://www.mhc.tn.gov.in/judis
Crl.A.No.431 of 2015
JUDGMENT
The convicted sole Accused is the Appellant herein, challenging the order made in Special Case No.1 of 2015, dated 11.06.2015, on the file of the learned Chief Judicial Magistrate, Thirupur, for the alleged offences, under Section 7 and 13(2), r/w.13(1)(d) of the Prevention of Corruption Act.
2.The Respondent/Complainant filed a final report against the Appellant/Accused for the offences under Sections 7, 13(2) r/w 13(1(d) of Prevention of Corruption Act, 1988, before the learned Chief Judicial Magistrate and Special Judge, Erode, on completion of the investigation done in Crime No.9/AC/2004/ER, dated 08.06.2004. The learned Chief Judicial Magistrate and Special Judge, Erode has take the case on file in Spl.CC.No.69 of 2005. The said Special Calendar case had been transferred to the Special Court cum Court of Chief Judicial Magistrate, Coimbatore, wherein the said case was taken on file in Spl.C.C.No.79 of 2011. Later, based on the Government Order vide G.O.Ms.No.666 Home (Court-III) Department dated 10.09.2014, the said case transferred to the file of the Court of Chief Judicial 2/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 Magistrate and Special Court, Tiruppur in Spl.C.C.No.1 of 2015. Before the Court of Chief Judicial Magistrate and Special Court, Tirupur, trial has been conducted and the prosecution has examined 20 Witnesses, marked 32 Exhibits and 6 Material Objects on the prosecution side.
3.On consideration of the oral and documentary evidence, the trial Court has found the Appellant guilty for offences under Section 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act and thereby imposed punishment, based on the guidelines mentioned in Section 71 IPC, for offences under Sections 7 and 13(2), r/w. 13(1)(d) of the Prevention of Corruption Act, sentencing the Appellant, to undergo 1 year simple imprisonment and fine of Rs.1000/-, in default, to undergo 2 months simple imprisonment. And hence the appeal.
4.The learned counsel for the appellant would contend that
(a) The sanction order is defective.
(b) Pw2 is only a representative of PW4 (Contractor) and he is not a partner and
(c) The sample signature said to have been obtained from the accused is inadmissible in evidence, more so, Ex.P3, Ex.P.17 & Ex.P.21. 3/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015
(d) Trap proceedings was not properly conducted and with specific reference to the absence of Pre-trap signal, which is conspicuously absent in this case.
(e) The suggestive case of the defense is not considered by the trial Court in the proper perspective.
(d) The allegation of demand, acceptance and recovery, which are main ingredients to prove the charges under the prevention of corruption act has not been established by the prosecution, in the manner known to law.
5.The learned Government Advocate would draw attention to the charges framed by the trial Court and the evidence of PW2, with regard to first demand on 02.06.2004 @ Rs.9,300/- and second demand on 07.06.2004, with option to pay the said amount in three installments and subsequently filing of the complaint with annexure (Jz;L rPlL ; )/ Marking of Ex.P.3 was subject to objection, before the trial Court and also stated that third demand was accepted on 08.06.2004. He also draw my attention to the evidence of PW4, regarding the status of PW2 with PW4, in the business transaction and also deposed regarding the name explanation of C.Muthu which is equal to Chellamuthu. He 4/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 further draw my attention to PW3, who deposed about pre-trap proceedings and preparation of entrustment mahazar and preparation of seizure mahasar, Ex.P.5, Ex.P.16 & Ex.P.17, Registers and note book found on the table of the accused. He further draw my attention to the evidence of PW4/contractor, who had admitted that PW2 is a partner and also draw my attention to the Investigating Officer about the completion of investigation and taking note of the fact that the acceptance, demand and recovery of the tainted money from the custody of the accused and hence submitted that the prosecution is entitled for presumption under Section 20(1) of the Act.
6.On reply, learned counsel for the Appellant would rely upon the different theory that the amount was planted by PW2. The evidence of PW2, PW3 and PW19/Trap Laying Officer in the cross examination has been relied upon and he has also relied upon the chief examination of PW8/Sounderrajan for probalising his suggestive case. He also draw my attention to the evidence of PW14/Dhandapani/Security Officer, who had deposed that, around 08.30 pm on the trap day, he had noticed the presence of Vigilance Officer, even before the trap.
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7.The rival submissions are taken into consideration and the documentary and oral evidences have been considered.
8(a).PW1 is the officer, who had issued sanction for prosecution/Ex.P1, PW2 is the defacto complainant, claims to be general power of attorney of PW4 (Contractor) for the lorry plying between the routes specified by Aavin to carry milk, collected from the village head points. Ex.P2 is the complaint, Ex.P3 is the piece of sheet, consisting some calculation, Ex.P3 was annexed with Ex.P.2. Ex.P5 is the entrustment mahazar, Ex.P7 is the scribble of notes alleged to have been seized by PW19/Trap laying officer during the Trap proceedings, which is discussed Infra. Ex.P21 is sample signature said to have been obtained from the accused, after he was released on bail by the investigating officer in the presence of PW9 and PW10 and Ex.P32 is the report of the handwriting expert marked through PW20/Investigating Officer.
8(b).Accused Mani, S/o.Palani Gounder, worked as Assistant Manager Dairy Aavin Milk Chilling Centre, Sankarandampalayam, Dharapuram Taluk, Erode is a Public servant as defined under Section 21 of IPC and 2(c) of Prevention of Corruption Act.
6/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 9(a).The case of the prosecution as could be seen from the final report and prosecution witnesses is that one PW4/Rathinasamy, S/o.Palanisamy Goudner, Nochipalayam, Sankarandampalayam, Dharapuram Taluk is a Contractor for rural milk collection routes of Madathupalayam and N.Kanipuram to Sankarandampalayam for transporting milk through his mini lorries bearing Reg. Nos.TN 37 H 5699 and TN 74 6468 for the period from 01.04.2004 to 31.03.2006 and PW2/T.Chellamuthu, S/o.Thirumalaisamy, Nochipalayam is his business representative, looking after the Milk transport.
9(b).P.Mani (Accused) was Assistant Manager (Dairy) incharge of the Milk Chilling Centre. On 02.06.2004, at his office P.Mani demanded Rs.9,300/- as bribe from Chellamuthu, with a threat that, if payment is not made, he would make entries in the records, as if their vehicles carrying milk, arrived late at the centre, after the prescribed time and fix the fault on the Contractor, for the spoiled milk, thereby will cause monetary loss to the Contractor.
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10.The alleged second demand was on 07.06.2004, when PW4/Chellamuthu met P.Mani(Accused), at his office, he demanded Rs.9,300/- and agreed for the payment in three installments. In pursuance of the aforesaid demand, on 08.06.2004 at about 8.10 pm at his office at Aavin Milk Chilling Centre, EDCMPU Ltd., Sankarandampalayam, P.Mani demanded and accepted Rs.3,000/-, the part payment, as gratification other than legal remuneration from Chellamuthu, in the presence of official witness PW3/Palanisamy, S/o.Ramasamy Gounder, Assistant Director/Project Manager, District Industries Centre, Erode as a motive or reward for not to execute his threat of making incorrect entries in the records. During the course of the said transaction, at the said time and place P.Mani being a public servant by corrupt and illegal means and by abusing his official position obtained for himself Rs.3,000/- as pecuniary advantage from Chellamuthu. The acts of the P.Mani/Assistant Manager, constitutes the offences punishable under Sections 7 and 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988.
11(a).On Ex.P.2/complaint of the said Chellamuthu, S/o.Thirumalaisamy, Nochipalayam, preferred on 08.06.2004 at 11.30 am before the Erode 8/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 department of Vigilance and Anti-Corruption, a case in Cr.No.09/2004/AC/ER, under Section 7 of the Prevention of Corruption Act, 1988 was registered and in the course of the trap organized on 08.06.2004, by the Inspector of Police, V & AC, Erode, P.Mani was arrested at his office at Erode and the bribe amount of Rs.3,000/- was recovered from his shirt pocket. To sum up, the case of the prosecution is that there was a demand on three occasions, first demand on 02.06.2004 and the demand amount is Rs.9,300/- and on the second occasion the same was reiterated on 07.06.2004 and agreed for payment in three installments and the third occasion was on 0806.2004, on the trap day, the offer and acceptance.
11(b).The suggestive case of the defense is that as there was a delay on the part of the lorry in bringing up the milk, within the stipulated time for prevention of spoilage of milk, the accused made orders of deduction of amount from Contractor (PW4) and PW4 had instigated PW2, who has no connection or contract job with Accused has planted the amount by arranging the investigation team, relied upon the answer elicited in the examination of PW4.
12.Sanction Order:
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https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 PW1 is a Sanctioning Officer and he would depose that by virtue of power delegated by the Commissioner for Milk Production and Dairy Development/Functional Registrar of Milk Cooperatives in ref. No.38155/B1/1983 dated 04.04.1984, he is the authority competent to remove from office the said Mani, Assistant Manager, Aavin Milk Chilling Centre, Erode District Cooperative Milk Producers' Union Ltd., Erode. He would further state that being satisfied with the materials placed before him copies of FIR, statement of witnesses and the accused officer, connected records and chemical examination report and investigation report of the Director of Vigilance and Anti Corruption, has accorded sanction. Admittedly letter of delegation of powers said to have been given by the Aavin Commissioner is not marked or enclosed with the Sanction Order. Though it is a defect, it is not fatal to the prosecution, since the same is not challenged by the Petitioner in the cross examination.
13.As stated Supra, the accused said to have been threatened PW4 (Contractor), who had got the contract of transporting milk through his Mini lorries bearing registration number TN 37 H 5699 and TN 74 6468 for the 10/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 period between 01.04.2004 to 31.03.2006. As contended by the learned counsel for the petitioner, both in Ex.P1 as well as Ex.P9 and Ex.P10, which is marked through PW13, I find that the vehicle number does not tallied. The approved vehicle was 5699 and not 6468, whereas Ex.P10 is for the vehicle bearing number 6742 and hence, the prosecution has not produced the necessary supporting documents, to show the vehicle number. Vehicle bearing No.TN 33 D 6742 was also engaged by PW4 for transporting milk collected from the village points is found to have force.
14.The prosecution has come forward with definite case that on 02.06.2004, the accused officer has demanded Rs.9,300/- as bribe from Chellamuthu/PW2 and also further threatened that, if the money is not paid, he would make entries in the records, as if their vehicles carrying milk arrived lated at the center, so as to cause monetary loss to the Aavin. The authorised contractor is admittedly PW4, has not given any complaint. Prosecution projected PW2 as the partner of PW4. In an attempt, to substantiate the said stand, they have examined PW15 and PW16, Branch Manager of Bank of Baroda and Manager (Production) and also marked Ex.P11, statement of 11/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 account which shows that PW4 and PW2 having joint account only and not as partners. Further no General Power of Attorney has produced by PW4 and marked before the trial Court also assumes significance.
15.It is the specific case of the prosecution that PW2 is the partner in the business, for which the vehicle contract was awarded by the Aavin. In such capacity, he said to have met accused officer and on such occasion, as stated supra, it is projected that there was a first demand on 02.06.2004. The trial Court has not appreciated Ex.P11 which was marked by PW15 and erroneously held that PW2 is the partner of PW4, which is only a joint account not a business account.
16.The procedure for collection of milk from various village points and transportation of the same, awarding of the contract and the payment made for the lorry owners are being spoken to by PW5, PW6, PW7 & PW8. PW11 is the Deputy Manager, PW12 is the Assistant General Manager, who would depose regarding payment procedures so also PW16, Manager (Production). Criminal law was set into force, by filing of Ex.P2, complaint along with Ex.P3 12/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 scribbling note by PW2. In the preceding paragraph, this Court has found that, there is no positive evidence by the prosecution, to show that PW2 is the partner of PW4 (Contractor) nor authorised representative of the same.
17.Demand, Acceptance and Recovery:
PW2 would depose that on 02.06.2004, the accused made demand of Rs.9,300/- and second demand was on 07.06.2004, to receive payment in three installments and third one is on 08.06.2004 on the trap day, and hence, the prosecution projected, demand was on three occasions. PW2 is the defacto complainant, PW3 is the shadow witness, officiating witness accompanying to PW2. Both PW2 and PW3 had stated that, when they met on the trap day, the accused officer made the demand and PW2 paid the amount.
18.Though PW2 denied the suggestion made to him that, while Appellant left to office room situated in left hand side for getting the rate book, PW2 placed money in the table drawer, but accepted that he sat on the right hand side to Appellant and the money had been kept in the table right side drawer. The evidence of PW2 and PW3 has to be read in consonance with each other and 13/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 not with isolation as done by the trial court.
19(a).To substantiate the 1st occasion of demand of Rs.9,300/-, on 02.06.2004, Ex.P3 was relied upon, which does not contain any signature or any name, as the case may be. In an attempt to prove Ex.P.3, which was said to have been written by the accused Officer, reliance is also placed upon Ex.P.7, notebook, said to have been seized by PW19/Trap Laying Officer. After the trap proceedings, signature obtained from the accused, after he came out on bail, under Ex.P21 in the police station in the presence of PW9 and PW10. Ex.P32, report of the handwriting expert, placed for reliance.
19(b).After considering the evidence of PW 2 and PW3 in connection with Ex.P.3, Ex.P.17, Ex.P.21 & Ex.P.P32, with that of the answer elicited in the cross-examination of PW19, I find that Ex.P3 was marked with objection, it does not contain any name or signature, it is a scribble of certain amounts, indicating Rs.9,300/- in order to co-ordinate the same, Ex.P17 was projected by the prosecution said to have been seized by PW19/ Trap Laying Officer, during the trap proceedings. Further a signature was obtained as sample handwriting 14/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 from the accused after he came out on bail and the same was referred to forensic department. In Ex.P32, report of the handwriting expert, it was expressed that hand writings are similar in nature. For the reasons best known, the author of Ex.P32 was not examined, before the court below, thereby accused has been deprived of an opportunity of cross examination as to the expert opinion.
20.Further more, the sample signature said to have been obtained from accused under Ex.P21. Whether any photographs have been taken or enlargement has been made by the forensic expert is totally kept in dark and negatives of the said photographs is also not produced and on the above factors, I find that, it is hard to accept the case of the prosecution that the figures mentioned in Ex.P3 is that of the accused officer, for more than one reason.
21.From the evidence of PW20/Investigating Officer, the sample handwriting Ex.P21 said to have been extracted on 26.06.2004 and the same was sent for comparison through Court on 07.07.2004 and there was a delay of 12 days, in sending it for comparison and there is absolutely no evidence in 15/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 whose custody, those signature samples have been kept for the said 12 days. It remains to be stated that Ex.P17, small note book seized in the presence of PW3. On perusal of the evidence of PW3, Ex.P17/small note book was neither marked through PW3/shadow witness and nor identified by him. Further it was deposed by PW3 that attendance register along with small book were seized from the table of the Appellant. Admittedly, both attendance register/Ex.P16 and Ex.P17/small notebook were marked only through PW19/Trap Laying Officer, which was not even shown to PW 3, especially, when it was projected that those two documents have been seized under the seizure mahazar, in the presence of PW3 and hence, non examination of attester of the seizure mahazar also throw serious doubt about the prosecution and hence, the alleged demand at the first instance by the accused is not proved in the manner known to law, in view of the discussion made supra.
22.The subsequent demand on 07.06.2004, whereby the accused officer said to have been scale down from his oral demand and accepted to reduce the amount in installment and at trap day, there was another demand. As to the presence of PW2 and PW3 on the trap day, in the office of the accused officer, 16/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 around 8 p.m., PW14/Dandapani/Security Officer was examined. As pointed out by the learned counsel for the Appellant, in the entrustment mahazar Ex.P.5, there is no whisper regarding demand or the amount, so also the pre- arranged signal, which is regular and usual course in the matters of trap proceeding. As per the Vigilance manual, it is the duty of the Trap Laying officer to instruct the defacto complainant PW2 and PW3/shadow witness to give the signal upon receipt of demand amount. In this case, there is no such method of signaling is mentioned in Ex.P.5.
23(a).At this juncture, admission of PW3 is that the accused did not to know the plantation of money on his table and therefore, it is clear that the accused never demand are accepted the amount as put forth by the prosecution. It is the specific evidence of PW19 that, while he went inside the office of the accused, neither PW2 nor PW3 were there and he has recovered the amount from the accused officer and also seized small note book Ex.P17 and also recorded the statement of the accused, immediately, after trap, Trap Laying Officer enquired the accused, but no statement was recorded by PW19.
23(b).It remains to be stated that PW1 has categorically deposed that he 17/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 had perused the statement of the accused officer before sanctioning, and hence, I find that the evidence of PW11/Trap Laying Officer cannot be relied upon, since the statement of the accused said to have been obtained by the Trap Laying Officer was placed for the perusal of PW1 and he has also recorded the same in Ex.P1/Sanction Order. For the reasons best known the investigating officer has burked the statement of the accused officer given immediately after the trap also create suspicion and also dis-enables the Court from appreciating the defense theory.
24(a).The first limp of the trap proceedings is that PW2 and PW3 entered the office of the accused officer and it is projected that PW2 had paid the amount and it was received by the accused and they came out of the office and thereafter trap laying officer along with PW3 went inside and completed the second part of the trap of proceedings.
24(b).PW14/Dandapani/Security Officer, in the cross-examination has deposed that on 08.06.2004 around 8 p.m., two people came to see the Manager/Mani (Accused officer) and he has made entry that the vehicle bearing 18/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 registration number TN 74 6464 came to the office at 9 a.m., as per the maintenance register.
25(a).With regard to the alleged trap proceedings, though PW3 would state that he went along with PW2, to the office of the accused officer and the defacto complainant PW2 has introduced him as his relative viz., “uncle” and enquire about the Kangeyam-Allambadi milk route for his favour and also enquired about the rate that could be given by Aavin. The Manager (Accused) on verification of the chart has furnished details and at that time the accused had asked about what happened to the amount and received money and placed it in the table drawer and thereafter, they informed the Trap Laying Officer and they went inside the office and conducting of the chemical test also spoken to.
25(b).In the cross examination, PW3 had admitted that he has not the seen the partnership deed and both the the vehicles have been in the name of PW4/Rathinasamy and it is specifically admitted that PW3 sat on the left hand side while PW2 sat on the right hand side and enquired about the route rate for Kangeyam-Allambadi and after verification with the register, the accused has 19/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 furnished the details and also stated that in the next room other person was there and he was writing something and after the trap proceedings he has stated that “nki$ ouhahpy; gzk; itj;j tpguk; M$h; vjphpf;F bjhpahJ vd;W brhd;dhy; rhp jhd;”, i.e., he has answered in affirmative that the accused does not know about the money placed by PW2 in the table-drawer of the accused.
26(a).At this juncture, the suggestive case of the defense, as extracted supra is to the effect that PW2 along with another person came and inquired about the route rate and as he was unable to give the information immediately, he went to the next room and taken a ledger from the next room and furnished the details to them. At this juncture, when the accused went to the next room PW2 has planted the amount in the drawer and the same has not been known to the accused and thereafter, after PW2 and PW3 left the office, he has enquired the other members in the office as to who had kept the amount.
26(b).In this connection, in the cross examination of PW8, who is the Junior Assistant and Milk Inspector admitted that on the trap day, the 20/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 accused/Mani has asked for the file related to Kangeyam-Allambadi and thereafter, he came and took the file in connection with the route Kangeyam- Allambadi and furnish the details to PW2. PW8 in the cross examination deposed as follows: “kzp ouhahpy; cs;s gzk; ahUilaJ vd;W nfl;lhh; ehd; vdf;F bjhpahJ vd;W brhd;ndd;/ ,t;tsJ jhd; vd;dplk; ngrpdhh/; ” Hence, I find from the answer elicited from the cross examination of PW8 that the alleged enquiry said to have been made by the accused officer with PW8, after PW2 and PW3 left the office, probablise the suggestive case of the defense that the amount has been planted in the drawer of the accused table.
27.To sum up, PW3/shadow witness (official accompanying witness) has categorically admitted the money kept in the drawer is not known to the Accused. PW2 enquired about the route rate for Kangeyam-Allambadi and it is also admitted by PW3 that to furnish the details the accused left the office room and went and collected the files from the next room and in the next room one person was also seated and doing the work. The said person has been examined as PW8. He in the cross examination also corrobated the said 21/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 evidence that the accused Mani came in search of the Kangeyam-Allambadi route file and thereafter, he himself picked up from the bureau and after PW2 & PW3 left office, the accused officer enquired him and other staff as to who had placed the money in the drawer and hence, the case of the prosecution is shattered by the answer elicited in the cross-examination of PW3 and PW8, thereby, I find it has probablised the defense case.
28.Yet another point is that though the prosecution has come forward with the specific case that two vehicles belonged to PW4 has been in contract. The vehicle number furnished by the investigating officer through Ex.P9 & Ex.P10 does not tally with Ex.P1/Sanction Order and as per the evidence of PW15/Bank Manager of Bank of Baroda, Ex.P11 is the joint account and not partnership account of PW4 and as per the evidence of PW12 Assistant General Manager PW2 is not a representative of PW4 and he has no link with aavin transaction and coupled with the answer elicited with the PW3 and PW8. Hence, I find that the suggestive case is more probablise than the prosecution's case.
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29.Admittedly, without any pre-arranged signal, it appears that the Investigating Officer has entered the office of the accused also assumes significance. The Security Officer/PW14 would depose that team of two persons from Vigilance, waiting outside, which arises doubt that, whether it is a trap proceedings or it is a arranged proceedings, to implant the money and hence I find that the credibility of evidence of PW2 in lodging exhibit P2/complaint is highly doubtful. PW4 though projected PW2 as his partner, for the reason recorded supra, the same is not established in the manner known to law, in the absence of any pre-trap signal, which is neither reflected in the entrustment mahazar/Ex.P.5 and not spoken by PW3 or by Trap Laying Officer. It is hard to believe that the Trap Laying Officer had entered the office after seeing PW2 coming out of the alleged office of the accused.
30.The contention of the learned Government Advocate that amount has been recovered from the office of the accused and chemical examination test is also proved positive and hence, they are entitled for presumption under section 20 of the Prevention of Corruption Act. I am unable to accept the said contention, for more than one reason, mere recovery of money from the accused 23/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 will not lead to the presumption, the prosecution has to prove demand and acceptance.
31.For the reasons disclosed supra, PW2 is no way connected with the office affairs of PW4, though he was projected as partner, subsequently as representative, there is a material contradiction between the evidence of PW1 with that of PW2 and PW4, which has been duly elicited and discussed in the preceding paragraphs. Even on production of Ex.P.3, Ex.P.16 & Ex.P.17, this Court rejected the case of the prosecution that it is a signature of the accused and hence I find that without proving the foundation of facts, the prosecution is not entitled for presumption.
32.Even assuming for the sake of argument that prosecution is entitled for presumption, for the reason discussed in the preceding paragraphs, the suggestive case of the defense appears to be more probable than the case of the prosecution. Hence I find that the suggestive case of the defense that since the accused officer has made endorsement in the invoices with regard to spoilage of 73 litres of milk on 02.06.2004 and spoilage of 600 litres, for the month of 24/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 April and May, having aggrieved with the said endorsement, PW4 has instigated PW2 with false complaint appears to be more probable and further more, the seizure of the short notebook under Ex.P.17 is not proved in the manner known to law. There is no positive evidence proving Ex.P3, with that of the accused, in the absence of any positive evidence to prove the charges, I find that the trial Court erroneously laid conviction, since the prosecution failed to prove the charges beyond reasonable doubt, giving benefit of doubt, the conviction and sentence passed by the learned Chief Judicial Magistrate, Thirupur in Special Case No.1 of 2015, dated 11.06.2015, as against the accused/Appellant herein is set aside and the Appellant/accused is acquitted of all charges. Fine amount is ordered to be refunded, if already paid. Bail bond stands cancelled. Accordingly, the Appeal is allowed.
22.09.2022 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order sai 25/26 https://www.mhc.tn.gov.in/judis Crl.A.No.431 of 2015 RMT.TEEKAA RAMAN.J, sai To
1.The learned Chief Judicial Magistrate, Thirupur.
2.The Public Prosecutor, High Court, Chennai 600 104.
Pre-delivery Judgment made in Crl.A.No.431 of 2015 Dated: 22.09.2022 26/26 https://www.mhc.tn.gov.in/judis