Madras High Court
S.D.Amalraj vs State on 25 January, 2008
Author: S.Ashok Kumar
Bench: S.Ashok Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 25/01/2008 Coram THE HON'BLE Mr.Justice S.ASHOK KUMAR Criminal Appeal No.490 of 2002 S.D.Amalraj .. Appellant/ Accused Vs. State through Inspector of Police, Vigilance and Anti Corruption Wing Sivagangai Cr.No.3/88 .. Respondent/ Complainant Criminal Appeal filed under Section 374 Cr.P.C., filed against the judgment dated 3.4.2002 passed in C.C. No: 17 of 1999 on the file of the learned Addl District Judge cum Chief Judicial Magistrate, Sivagangai, and to set aside the conviction and sentence and acquit the accused. !For Appellant ... Mr. G.R.Edmund, S.C., for Mr.K.Vinayagam ^For Respondent ... Mr. Siva Ayyappan, Govt.,Advocate (Crl.Side) :JUDGMENT
This Criminal Appeal has been filed by the accused as against the judgment, dated 3.4.2002 passed in C.C. No: 17 of 1999 on the file of the learned Additional District Judge cum Chief Judicial Magistrate, Sivagangai, and to set aside the conviction under Sections 7, and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentence imposed upon him to undergo one year rigorous imprisonment for each of the offence and to pay a fine of Rs.2000/=, for each of the offence and in default to undergo 2 months rigorous imprisonment.
2. The brief facts of the case are as follows:-
P.W.2 Gunalan who is the Correspondent of Amaravathy Primary School at Kallal had applied for Licence fro running the school for which he has given an application to the appellant/accused on 15.7.1998. The appellant asked P.W.2 to come after 10 days and two others occasions whereby he was informed by the Deputy Tahsildar. It is further alleged that on 13.8.1998 at 11.00 a.m., P.W.2 met the appellant and he replied that he could issue licence only after inspection of the building. On 17.8.1998 the appellant inspected the building and asked P.W.2 to come to the office after one week. It is further alleged that on 28.8.1998 at 11.00 a.m., P.W.2 went to the Taluk Office and met the appellant and that the appellant told him that he has signed the licence and it will be given to him on payment of Rs.1000/=. Again, on 6.10.1998 it is alleged that PW.2 went to the office of the appellant along with his friend P.W.3 Karvannan and met him at 5.00 pm., Then also, the appellant demanded Rs.1,000/=, when agreed by P.W.2, the appellant had told PW.2 to come to his house between 7.00 p.m., and 9.00 pm.,
3. It is the further case of the prosecution that since P.W.2 was not willing to give bribe, he went to the respondent's office along with his friend P.W.3 and gave Ex.P.7 complaint which he signed in the presence of Inspector of Police, Vigilance and Anti Corruption, Sivagangai at about 2.30 pm., on 7.10.1998. The Inspector of Police asked P.W.2 to come at 4.00 pm., and that P.W.2 went to the Respondent's office at 4.00 p.m, where he was introduced to P.W.4, Chinnathambi and one Krishnaraj, Official witnesses. The usual procedures were followed by the Inspector of Police and asked P.w.2 whether he has brought Rs.1000/= and P.W.2 gave the same to the Inspector. The Inspector asked Krishnaraj to count the currency and he counted (Ten hundred rupee notes) and placed it on the table. The Inspector prepared Sodium Carbonate Solution and a demonstration of Phenolphthalein test was conducted for which Mahazars were prepared at 4.45 pm., which is marked as Ex.P.9.
4. The Inspector along with Police Party, P.W.2 and P.W.4 proceeded to Karaikudi. Thereafter the Inspector and his men got down from the Jeep and waited at a short distance near to the house of the appellant and he gave necessary instruction to P.W.2 and P.W.4 and asked them to go to the house of the appellant and hand over the currency sprinkled with phenolphthalein powder to the appellant when he demands. P.W.2 and P.W.4 went to the house of appellant at 8.40 p.m, The appellant asked PW.2 whether he brought the money and on that, P.W.2 gave the money to the appellant. P.W.2 and P.w.4 came to the Verandha and P.W.2 gave the signals to the Inspector of Police as instructed by him and on that the Investigating Officer and others went to the house of the appellant and the appellant on seeing the Inspector coming to his home went out the house through the back door and came to the front side. The Inspector asked the appellant whether he received the bribe and the appellant replied negative. The Inspector called P.W.2 and asked him that whether the appellant received any money from him. For that, the appellant had admitted having received the money from P.W.2. The Sodium Carbonate Solution was prepared by the Inspector and the appellant was asked to dip in his right hand finger and when the appellant did so, the solution turned pink colour. The same procedure was followed on the left hand, but there was no change of colour in the solution.
5. When the Inspector enquired the appellant about the currency notes he received from P.W.2, the appellant confessed that he has thrown all the notes on the thorny fence at the back side of his house and the appellant took the Inspector to the backyard from where the appellant took 10 numbers of Rs.100/= currency notes from the thorny fence and handed over the same to the Inspector. A Mahazar was prepared for seizure of the notes and also the solutions. The appellant was arrested and he was taken to the Taluk Office. The A.4 Section Clerk Subramaniyan arrived at the Taluk Office at 11.00 pm., and he has handed over Ex.P.2 to Ex.P.6. On the next day the appellant was remanded to judicial custody. The Deputy Superintendent of Police, V & AC, P..W.9 took up the investigation and after completion of investigation filed the final report.
6. Before the learned Chief Judicial Magistrate, Sivagangai, on behalf of the prosecution, 9 witnesses were examined and Exs.P.1 to P.25 were marked, besides M.Os.1 to 5. On behalf of the accused D.Ws.1 to 3 were examined and Exs D.1 and D.2 were marked. When the accused was examined under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, he denied the same.
7. The Learned Chief Judicial Magistrate, Sivagangai, on a consideration of the material evidence available on record, came to the conclusion that charges under Section 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act were proved against the appellant/accused and convicted as such and imposed sentence as stated supra. Challenging the said conviction and sentence, the present appeal is filed.
8. Learned counsel appearing for the appellant/accused would contend that the alleged demand on 28.8.1998 and 6.10.1998 by the appellant is false. Learned counsel would contend that on 15.7.1998 when the P.W.2 gave the application to get licence for running the school, the appellant did not demand any money. On 13.8.1998 when P.W.2 met the appellant, he replied that he will issue licence only after inspection of the building and at that time also he did not make any demand. On 17.8.1998, it is the admitted case of the prosecution that the appellant inspected the building and at that time also the appellant did not demand any money from P.w.2. According to the evidence of P.w.2, on 20.8.1998 at 11.00 a.m., when he met the appellant/accused at the Taluk Office, then the appellant told him that he has signed the licence and will be given to him on payment of Rs.1,000/=. Again on 6.10.1998 when P.W.2 along with P.w.3 went to the office of the appellant and met him by 5.00 p.m., the appellant demanded Rs.1,000/= and told P.w.2 to come to his house between 7.00 and 9.00 p.m., Therefore, on the earlier three occasions on 15.7.1998, 13.8.1998 and 17.8.1998 the appellant/accused has not demanded any money from P.W.2. The alleged demand is said to have been made on 28.8.1998 and 6.10.1998. According to the evidence of P.W.2, he met the accused at 11.00 am., at his office on 28.8.1998. But the contention of the accused is that on 28.8.1998 at 11.00 a.m., he was not present in the office. Ex.P.16 Diary maintained in the office of the Thasildar would show that on 28.8.1998 the accused has attended at Surakudi Temple Kumbabishegam and maintained law and order and returned to the Headquarters only in the afternoon. The contents of this Diary is supported by the evidence of P.W.5 and D.W.1. P.w.5 was the Deputy Thasildar cum Headclerk during the relevant period at Karaikudi. In the said diary there is an entry that on 28.8.1998 after noon the Thasildar after returning to the Headquarters maintained law and order with regard to a Pillaiyar temple procession. P.W.5 would say that the accused did not come to office on 28.8.1998 because he was engaged in the two duties mentioned in the Diary and on 6.10.1998 it is stated that according to him as per the Diary, he has gone to Samathurvapuram for petition enquiry. D.W.1 has also deposed that he was the Ex Panchayat President and Ambalakkarar of Surakudi Village and that on 28.8.1998 the accused came to his village on 5.00 a.m., and was at the Village till 2.00 pm., and he had breakfast and lunch in his village because there was dispute with regard to encroachment of the temple lands by certain persons and since the Kumbabishegam of the two temples were held on that day. Exs.D.1 and D.2 are the Invitations for the said temple Kumbabishegams. Therefore the admitted evidecne of P.W.5 and D.W.1 that the accused was present at Surakudi village from morning 5.00 a.m., to 2.00 pm., would falsify the evidence of P.w.2 that he met him at his office at 11.00 a.m., In this context it is useful to refer to the complaint Ex.p.7 given by P.w.2 to the Inspector of Police, Vigilance and Anti Corruption. In the complaint P.w.2 has not stated the time when he met the accused at the office on 28.8.1998. But in the evidence he has stated that he met the accused at his office on 11.00 a.m., on 28.8.1998. this averment that he met the accused on 28.8.1998 will be patently false.
9. The next date of demand is 6.10.1998, on which date when P.w.2 and 3 met the accused, he again demanded Rs.1,000/=. According to P.w.2 and 3, they met the accused at 5.00 pm., in his office. P.W.5, Deputy Thasildar cum Head Clerk would say that on that date, the accused had gone to Samathuvapuram in connection with an enquiry on a petition. It is the admitted case of the prosecution that after inspection of the building for which P.W.2 sought licence, on 17.8.1998 on the very same date the accused has made the report that the building was strong enough and licnece can be issued for three years and in fact a licence was signed by him on 24.8.1998 and the file was sent to A.4 Section clerk after 24.8.1998. The allegation is that P.W.2 met the accused on 28.8.1998 which is patently false. Thereafter., P.W.2 has kept quiet till 6.10.1998, the previous date of trapping the accused. There is no explanation on the part of P.w.2 as to why he was silent for nearly 38 days after 28.8.1998. Since the complaint was lodged on 7.10.1998, it is probable that another demand on 6.10.1998 is introduced, so that there can be cause of action to file a complaint against the accused.
10. When the accused has already passed an order to issue licence and sent the file to A.4 clerk even on 24.8.1998, nothing remains to be done by the accused thereafter. It is the duty of A.4 Clerk to wait for three days or one week whether the applicant (P.W.2) comes and get the licence or otherwise A.4 clerk should have sent the licence to the applicant by post. P.W.1 Collector himelf has admitted as follows:-
@nkw;go iybrd;;!; bgWtJ bjhlh;ghd ghh;k; gotk; gp/,y; kw;Wk; gjpntl;oy; M$h; vjphp 21/8/1998 kw;Wk; 24/8/1998 ,y; ifbahg;gk; bra;Js;shh;/ mij jhrpy;jhh; mYtyf V/4 brf;rDf;F mDg;gpdhh; vd;why; rhpjhd;/ nkw;go gjpntl;il V/4 brf;rd; vGj;jh; xU thuj;jpw;Fs; (g[fhh;jhuh;-tpz;zg;gjhuh;) ghh;itf;F mDg;g ntz;Lk; vd;whh; rhpjhd;/ mJtpguk; o!;hpf;l; MgP!; khDtypy; tHpfhl;Lbewpfspy; fz;Ls;sd vd;why; ,Uf;fyhk;/ V/4 vGj;jUk; jghy;; bl!;ghl;r; fpshh;f;Fk; tpz;zg;gjhuUf;F mJ bjhlh;ghf jfty; mDg;ghky; ,Ue;jpUe;jhy; nkw;go braYf;F mth;jhd; bghWg;g[ vd;why; ,Uf;fyhk;/@
11. P.W.5, Head Clerk cum Deputy Thasildar ha also admitted as follows:-
"17/8/1998 md;nw !;jyk; ghh;it bra;j md;nw nehl;oy; chpkk; tH';fyhk; vd;W nehl; Mh;lh; vGjptpl;lhh;/ me;j nehl;Mh;lhpd; mog;gilapy; mry; rhd;wpjH; efYk; jahhpf;fg;gl;L me;j rhd;wpjHfis 21/8/19998 md;nw vjphp ifbahg;gk; bra;Jtpl;lhh;/ mjw;f;Fg;gpwF me;j nfhg;g[ rk;ge;jkhf me;j nrd;wpjH; tH';FtJ rk;ge;jkhf vjphp bra;a ntz;oa gzp vJt[k; ghf;fp ,y;iy/ 21/8/1998 ,y; rh/M/19 kw;Wk; 20 y; ifbaGj;jpl;L vjphp me;j nfhg;ig vd;dplk;jhd; nehpilahf mDg;gpdhh;/ me;j nfhg;ig vjphp V/4 fpshh;f;fplk; nehpilahf mDg;gtpy;iy/ vd;dplk; nfhg;g[ mDg;g[k;nghJ vjphp bfhLf;ffntz;lhk; vd;W vjphp vd;dplk; brhy;ytpy;iy/ 3 ehl;fSf;Fs; me;j rhd;wpjiH th';f chpikahsh; tutpy;iy/ 3 ehl;fSf;Fs; me;j egh; te;J me;j rhd;wpjH;fis bgw;Wr; bry;ytpy;iy vd;why; rk;ge;;jg;gl;l fpshh;f; mij jghy; fpshh;Ff;F mDg;gntz;Lk;/ mjpy; vg;ggo bl!;ghl;Rf;F mDg;g[tjw;F V/4 fpshh;f; vd;idnah vjphpianah nfl;fntz;oa mtrpak; ,y;iy/ oghh;l;bkd;ly; MgP!;nkDty; vd;W xd;W cs;sJ/ mjd;go 3 ehisf;Fs; bl!;ghl;rpy; mDg;g ntz;Lk;/ mg;go bl!;ghl;r; mDg;gntz;oa bghWg;g[ V/4 f;F cz;L/ vjphp mDg;g ntz;lhk; vd;W jd;dplk; brhd;djhf V/4 fpshh;f; vd;dplk; bjhptpf;ftpy;iy/ mg;nghJ bry;yKj;J vd;gth; ,Ue;jhh;/ bry;yKj;Jtpw;f;F V/4 fpshh;f; mDg;gp itf;ftpy;iy/ bl!;ghl;r; gd;zpzjhft[k; hpf;fhh;l; ,y;iy/ V/4 fpshh;f;; vjphp te;jgpwF vjphp V/4f;F xJf;fpa ntiyfis Ml;nrgpj;J vd;dplk; g[fhh; bra;jhh;/ V/4 fpshh;f;fpd; rnfhjuh; fhiuf;Foapy; ouhgpf; rg; ,d;!;bgf;luhf ,Uf;fpwhh;/ jdJ rnfhjuh; ouhgpf; rg; ,d;!;bgf;luhf ,Ug;gjhy; mtUf;F bfhLf;fntz;oa gzpia chpa neuj;jpy; bra;tJ ,y;iy/ fhyk;jhH;j;jp bra;J te;jhh;/@
12. Therefore, the payment of bribe after completion of the official favour is a serious lacuna in the prosecution case as held by the Hon'ble Supreme Court in State of U.P. Vs. Jagdish Singh Malhotra, reported in 2003 SCC (Criminal) 1008. In the present case, on facts there is no official favour persisted at all when already the appellant has ordered for issue of licence.
13. In Ram Smugh Mourya Vs. State of Madhya Pradesh, reported in Vol.II (2002) CCR, 169, the Madhya Pradesh High Court has held as follows:-
"17. In the present case, the purpose for which the money was demanded as illegal gratification by the appellant, was already served much prior to the alleged demand of Rs.100/= to the appellant for releasing the complainant and his son Mohan. Complainant Rajaram was also given notice for appearance before the Court for filing the charge sheet, in the circumstances, it would be difficult to believe that the appellant was demanding money for the work which had already been done. If the money was not paid by the complainant, after his release on surety, Deokaran (PW.5) was never called and asked for the payment of money because as per the prosecution case, on his assurance, complainant Rajaram and his son were released on bail. This fact is also tilting balance of innocence in favour of the appellant."
14. In S.Suryanarayana Rao Vs. State of Karnataka, reported in 2000 Cri.L.J.,2377, the Karnataka High Court has held as follows:-
"6....Unless there is corroboration by other materials, it is difficult to hold that the prosecution has established beyond reasonable doubt that there was demand and acceptance. Moreover, the another hole in the jacket of the prosecution is that the file had left on 22.7.1986 itself to P.W2 to conduct the survey. In view of these facts and circumstances of the case, naturally the doubt arises as to the genuineness of the prosecution story. Hence benefit of doubt is extended to the appellant"
15. In M.K.Shanmugasundaram Vs. The Inspector of Police, V & AC, Salem, reported in 2007 (1) LW (Crl) 199, this court held that "like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge the said innocent is paramountly on the prosecution. However strong the suspicion against the accused if every reasonable possibility of innocence has not been excluded, he is entitled to acquittal. If therefore the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the charge cannot be said to have been established".
16. The money M.O.3 series have been recovered from the thorny bush behind the house of the accused. The prosecution case is that on seeing the police party, the accused went behind his house and threw the money in the thorny bush from where it was recovered. At the time of trap when the right hand of the accused was dipped in the Sodium Carbonate Solution, it turned pink colour and the bottle was sealed as M.O.No.3. When his left hand fingers were dipped in such solution, there was no change of colour of M.O.4. But, on the other hand, the evidence of the forensic scientist, P.w.8, is totally different. The sample in Ex.M.O.3 it is true the solution was pink in colour. But the sample in Ex.MO.4 also the solution was pink in colour and when analysed chemically the samples 3 and 4 both right and left hands proved to contain phenolphthalein. If that is so, there is no explanation as to how sample No.4 which was colourless at the time of drawing the trap mahazar was pink in colour when it was received in the Forensic Sciences Laboratory at Madras and how Phenolphthalein was tested positive in Sample NO.4 namely solution dipped by left hand of the accused also. Therefore, the contention of the accused that these solutions were prepared later b the police to implicate him cannot be simply brushed aside as one without force. In AIR 1979 SC page 148, the Hon'ble Supreme Court has held that in a case of bribery where recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable".
17. Apart from that, there is motive alleged between P.w.2 and the accused. P.W.5 has stated that P.w.2 and P.w.3 who belong to Communist Party often used to come to the office and take bulk applications for getting community certificates for others for which the accused objected and warned them and told that the applicants themselves must come and apply and one cannot apply for several persons for getting community certificates. P.w.3, Joint Secretary of the SC and ST Association also deposed about the occurrence earlier to the trap in which P.Ws 2 and 3 quarrelled with the accused and threatened him. Under such circumstances, it is hard to believe that the accused would dare to demand any money from P.W.2 that too when already order has been passed even before the alleged date of demand.
18. The Prevention of Corruption Act was intended to make effective provision for prevention of bribe and corruption rampant amongst the public servants. It is a social Legislation to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object as held in State of Madhya Pradesh Vs. Shri Ram Singh reported in 2000 Crl.LJ 1401 (SC). At the same time, we must bear in mind that conviction of the public servants on flimsy grounds leads to an economical death of the concerned person and convicted person will also lose his social status and will be put to shame in the public not only the public servant, his entire family will have such sufferings. Probably, that may be the reason why in 2005 SCC (Cri) 1424 (Ganga Kumar Srivastava Vs. State of Bihar) the Hon'ble Supreme Court has observed as follows:-
"20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government Officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid."
19. Neither the prosecution has put up a strong case in proper manner as warranted by law, nor the same had been properly investigated into, nor proved, much less beyond reasonable doubts. The case of the prosecution suffers from infirmities, inconsistencies, laxities and lacunae so as to become unreliable for a conviction to sustain. In view of the infirmities and lacunae in the prosecution case, and the appellants having established in defence the probabilities of his contention that no demand was made by him and by a conspiracy hatched by P.Ws 2 and 3 the false case has been foisted against them, the defence version is more probable to accept than the version of the prosecution.
20. In the result, the Criminal Appeal shall stand allowed. The conviction and sentence passed by the Court of Additional District Judge cum Chief Judicial Magistrae, Sivaganga in C.C.No.17 of 1999, dated 3.4.2002 are hereby set aside. The fine amount paid by the appellant shall be refunded to him. The bail bond executed by him shall also stand cancelled.
gkv.
Copy to:
1. Deputy Superintendent of Police, Vigilance and Anti-corruption Wing, Sivagangai Cr.No.3/98
2. Public Prosecutor, Madurai Bench.