Madras High Court
P.Karuppasamy vs The State Represented By on 5 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.246 of 2010
P.Karuppasamy ...Appellant/Accused
Vs.
The State represented by
The Inspector of Police,
Vigilance and Corruption,
Tuticorin.
[Crime No.02 of 2006] ...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to set aside the judgment dated 09.07.2010 made
in Spl.CNo.9 of 2007 on the file of the Special Judge cum Chief
Judicial Magistrate, Tuticorin.
For Appellant : MrMayil Vahana Rajendran
For Respondent : Mr.S.Chandrasekar,
Additional Public Prosecutor
JUDGMENT
This appeal has been filed seeking to set aside the judgment dated 09.07.2010 made in Spl.CNo.9 of 2007 by the Special Judge cum Chief Judicial Magistrate, Tuticorin.
2.The case of the prosecution is that on 21.08.2006 the defacto complainant approached the respondent Police and gave a http://www.judis.nic.in complaint against the appellant that on 21.08.2006, at about 11.30 2 am, when the defacto complainant had approached the respondent seeking patta transfer in respect of his property, the appellant demanded Rs.500/- and the defacto complainant since was not willing to pay the bribe amount, made a complaint and based on the complaint, a case was registered.
3.Based on the FIR, trap was planned by the Trap Laying Officer (herein after shall be referred to as 'TLO'). Two independent witnesses, namely one Perumal (PW.3) and Sebastian who are known as shadow witnesses were summoned by the TLO and subsequently, PW.2, and the independent witnesses were present at the Office of the Vigilance and Anti Corruption, Thoothukudi on 22.08.2006 and the complainant was also present as directed by the TLO. The TLO explained about the complaint given by PW.2, to the independent witnesses and conducted a pre trap demonstration proceedings. PW.2 brought Rs.500/- (Rs.100 x 5) and the serial number of the currencies were noted down in the entrustment mahazar (ExP.7) prepared by TLO and later coated the currencies with phenolphthalein powder and gave them to PW.2. The TLO instructed PW.2 to approach the appellant and if the appellant demands the money, then only he should give the money to the appellant. PW.3 was also directed to accompany PW.2 and instructed them to show signal, after accepting the money by the http://www.judis.nic.in appellant. Accordingly, on 22.08.2006, at about 10.30 am, the TLO, 3 PW.2, shadow witness PW3 and Police Officials, went to the place of occurrence in their official vehicle bearing Registration No.TN 07 G 2509. Around 12.20 pm, the appellant came to his office. PW.2, along with PW.3 went to the office of the appellant and met him, on seeing PW.2, the appellant asked whether he had brought the money and asked him to give the money and after his demand, PW. 2 gave Rs.500/- (Rs.100 X 5) to the appellant, the appellant received the money and kept it in his shirt pocket at left side and assured to get signature from Tahsildar in the patta.
4.Then PW.2 came out of his office and gave the pre arranged signal to the TLO. On receiving the pre arranged signal from PW.2, the TLO along with PW.4, who is the independent witness entered into the office of the appellant and introduced himself to the appellant and conducted phenolphthalein test and the result proved positive. Then the TLO recovered the tainted money through recovery mahazar and obtained signatures from the appellant and shadow witnesses. Then the TLO placed the matter before the Investigating Officer - PW.11. The Investigating Officer after conducting investigation laid a charge sheet against the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 [herein after referred to as 'PC Act'] before the, Special Judge cum Chief Judicial Magistrate, http://www.judis.nic.in Thoothukudi.
4
5. In order to prove the case of the prosecution, on the side of the prosecution 12 witnesses as PW.1 to PW.12 were examined, 22 documents as Ex.P.1 to Ex.P.22 were marked and 11 material objects as MO.1 to MO.11 were exhibited.
6.After completion of the prosecution side evidence, the incriminating circumstances culled out from the prosecution witnesses were put before the appellant and the same were denied as false. On the side of the appellant / accused, 2 witnesses were examined as DW.1 and DW.2 and no document was marked.
7.After completion of the trial and after hearing the arguments on either side, the Special Judge found the appellant / accused guilty under Sections 7 and 13(2) r/w 13(1)(d) of PC Act and convicted and sentenced him to undergo rigourous imprisonment for a period of two years and imposed a fine of Rs.1,000/-, in de fault to undergo rigourous imprisonment for a period of three months, for the each offence committed under Section 7 and Section 13(2) r/w 13(d)(1) of PC Act.
8.Aggrieved against the conviction and sentence, the appellant has preferred the present appeal. http://www.judis.nic.in 5
9.The learned Counsel for the appellant would submit that the defacto complainant has filed a false case against the appellant due to previous motive. Further he has given a complaint stating that for transferring patta the appellant demanded Rs.500/-from the defacto complainant. But, Ex.P.2, the application made by the defacto complainant to the Tahsildar and the Tahsildar also issued order for issuance of patta. Therefore, there is no role for the appellant in issuance of patta or transfer of patta. The appellant being a VAO can only carry out mutations in the revenue records. Therefore, the appellant has nothing to do with the issuance of patta or transfer of patta. Therefore, the allegations are levelled against the appellant, only due to previous motive. When the Tahsildar had already ordered transfer of patta, there is no need for the appellant to demand money from the defacto complainant. Moreover, the defacto complainant has approached the appellant for remitting Rs.500/- as tax and he informed that he would collect the balance amount later. The prosecution has not established its case beyond reasonable doubt. On that particular day, apart from the seized Rs.500/- there was more money, which was remitted by several other persons also. Therefore, the appellant has established his defence by preponderance of probabilities or probable defence, as the appellant need not establish by adducing direct evidence. Further, the defence witnesses have clearly spoken about the http://www.judis.nic.in motive between the appellant and the defacto complainant. 6 Therefore, the judgment of the trial Court needs to be set aside and the appellant ought to be acquitted from the charges.
10. The learned Additional Public Prosecutor appearing for the respondent would submit that it is not correct to state as stated by the learned Counsel for the appellant and Ex.P.4 is only an order to transfer the patta and based on that order, transferred patta to be issued. The order also indicates to report before VAO. Though, the learned Counsel for the appellant stated that defence witnesses have explained the previous motive between the defacto complainant and the appellant, the appellant has failed to estabilsh the same in the manner known to law.
11.The learned Additional Public Prosecutor would submit that the evidence of PW.2, the defacto complainant, PW.3- shadow witness, PW.10 -TLO, and Ex.P.2 application, Ex.P.5 - complaint, Ex.P.6 FIR, Ex.P.7 - Entrustment Mahazar, Ex.P.9 - Chemical Analysis Report, and Ex.P.15. Recovery Mahazar the prosecution has proved its case that the appellant had demanded Rs.500/- from the defacto complainant for patta transfer and accepted the money and the recovery of tainted money is also proved. The phenolphthalein test also proved positive. The Special Judge has rightly appreciated the evidence and considered the materials http://www.judis.nic.in placed on record and elaborately discussed the matter and rightly 7 convicted the appellant and sentenced as mentioned above. Therefore, there is no reason to interfere with the judgment of the trial Court.
12.Heard the learned Counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and perused the materials placed on record.
13.The case of the prosecution is that the defacto complainant gave a complaint against the appellant alleging that on 21.08.2006, at about 11.30 am, when the defacto complainant approached the respondent seeking patta transfer in respect of his property, the appellant demanded Rs.500/- and since he was not willing to pay the bribe amount, made a complaint and based on the complaint, FIR was registered and trap was planned by the TLO. Two independent witnesses, were summoned by the TLO and subsequently, PW.2, and the independent witnesses were present at the Office of the Vigilance and Anti Corruption, Thoothukudi on 22.08.2006 and TLO explained about the complaint, to the independent witnesses and conducted pre trap demonstration about the trap. On 22.08.2006, around 12.20pm PW.2 along with PW.3 went to the office of the appellant and met him, appellant demanded money and after demanding bribe money, PW.2 gave Rs. http://www.judis.nic.in 500/- the tainted money to the appellant, the appellant received the 8 money and kept it in his shirt pocket at left side. Then PW.2 came out of his office and gave the pre arranged signal to the TLO. Then the TLO along with PW.4, who is the independent witness and introduced himself to the appellant and conducted phenolphthalein test and the result proved positive. Then the TLO recovered the tainted money through recovery mahazar and obtained signatures from the appellant and shadow witnesses. Then the TLO placed the matter before the Investigating Officer, who after conducting investigation laid a charge sheet against the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of PC Act before the Special Judge cum Chief Judicial Magistrate, Thoothukudi and the Special Judge convicted the appellant and imposed sentenced as mentioned above.
14.Admittedly, there is no dispute that the property was purchased by PW.2 by way of a sale deed. PW.2 the defacto complainant applied for transfer of patta on 17.07.2006. Further on 10.08.2006 the defacto complainant approached the Clerk in the office of the Zonal Deputy Tahsildar, who in turn issued an order for transfer of patta on 10.08.2006, instructing him to produce the same to the VOA, for getting patta. Accordingly, PW.2 approached the VAO on 21.08.2006, but VAO demanded Rs.500/- as illegal gratification. Therefore, the contention raised by the learned http://www.judis.nic.in Counsel for the appellant that the VAO has no role in issue patta 9 cannot be accepted, since Ex.P.4 is only an order to transfer the patta, which itself is not the transferred patta, whereas a copy was also marked to the VAO, Araikulam. Hence the role of the appellant lies there. PW.1 has stated clearly that he approached the appellant several times and finally appellant has demanded Rs. 500/- on 21.08.2006 and complaint was also preferred on the same day itself. So the demand is clearly established from the complaint and the evidence of PW.2.
15.Further, PW.4 - the independent witness in his evidence has stated that as instructed by his superior, he went to the Vigilance and Anti Corruption Office, Thoothukudi on 22.08.2006 PW.10 was there and he introduced PW.2 and the other witness to him and explained about the complaint preferred by PW.2 and conducted the pre trap proceedings and instructed him to accompany PW.2 and to observe the happenings. As such, he went along with PW.2 to the office of the appellant, receipt was given in respect of his land and the defacto complainant enquired about the patta and the appellant demanded money and PW.2 gave Rs.100 X 5 to the appellant, the appellant accepted the said money and kept it in his shirt pocket at left side. They came out and PW2 showed the pre arranged signal to PW.10. Thus from the evidence of PW.4 the acceptance of money is proved.
http://www.judis.nic.in 10
16.Further PW.4 has stated that TLO came there and PW.2 identified the appellant. Then TLO introduced himself and the witnesses to the appellant. TLO has prepared sodium carbonate solution and when the appellant dipped his left hand fingers, the solution turned pink. On enquiry, the appellant, took the tainted money from his shirt pocket and he counted it and when compared, the serial number of the currencies tallied with the entrustment mahazar. The tainted money was recovered through recovery mahazar. Further his shirt pocket was subjected to phenolphthalein test, which also proved positive. Then, the appellant, TLO and himself had put signatures in the recovery mahazar. Therefore, the recovery of the tainted money is also proved from the evidence of PW.4. So from his evidence, the demand, acceptance and recovery of tainted money have been proved.
17.PW.10, the TLO in his evidence has stated that P.W.2 had preferred a complaint on 22.08.2006 against the appellant alleging that he demanded bribe for patta transfer and on the basis of the complaint, he registered a case and planned for trap proceedings. He summoned two independent witnesses and they appeared on 22.08.2006 before him. He introduced PW.2 to the witnesses and conducted pre trap proceedings. He gave the phenolphthalein coated currencies with denomination Rs.100 X5 to http://www.judis.nic.in PW.2 and instructed PW.2 to meet the appellant and give the 11 money, only if he demands and also instructed PW.4 to accompany PW.2 and asked PW.2 to give signal after accepting the money by the appellant. He prepared the entrustment mahazar by noting down the serial numbers of the currencies. Accordingly, they went inside the office of the appellant and after sometime came out and showed the pre arranged signal. On receiving the signal, PW.10 along with the independent witnesses went inside the office of the appellant and introduced themselves. The appellant appeared to be very nervous. He conducted the phenolphthalein test, which proved positive and collected the solution in a sealed bottle. Subsequently, he got the tainted money, which was taken from the appellant shirt pocket, the serial number of the currencies tallied with the entrustment mahazar. He recovered the tainted money through recovery mahazar and he obtained signatures from the shadow witnesses. Then he placed the case records before the Investigating Officer. On a reading of the evidence, PW.10 has clearly stated about the trap proceedings and the recovery of tainted money from the possession of the appellant.
18. PW.3, was the Scientific Assistant, who has spoken about the presence of sodium carbonate and phenolphthalein, in the solution marked as MO.1 to MO.3, which is also supported by Ex.P. 9, the chemical report.
http://www.judis.nic.in 12
19. A conjoint reading of the evidence of PW.2, PW.4, PW. 10, PW.1, PW.6, Ex.P.1, Ex.P.5, Ex.P.7, Ex.P.9, Ex.P.15, and Ex.P17, the prosecution has proved the demand, acceptance and recovery beyond reasonable doubt.
20.The learned Counsel for the appellant submitted that a false case has been foisted against the appellant, only due to the previous motive and it is evident from the defence witnesses. Though he cited previous motive as a reason for the complaint, the same is not proved in the manner known to law. Therefore, the contention that previous motive is the reason for the complaint is not acceptable.
21.Further, the appellant he himself had admitted that he had received the amount of Rs.500/-, only as a tax amount. If at all it was the tax amount as stated by the appellant, there is no receipt given towards the same.
22.The learned Counsel for the appellant submitted that that Rs.182/- was due from the defacto complainant as tax. But, it is not explained the period for which this amount is due and there is no record to show that the defacto complainant has paid tax once in a two years or three years. Even if the contention that Rs.182/- was http://www.judis.nic.in due from the defacto complainant, the balance amount out of Rs. 13 500/-, in not properly accounted for. So, in the absence of any acceptable explanation, the contention raised by the learned Counsel for the appellant cannot be sustained.
23.It is contended that VAO is not the competent authority, to pass an order of transfer of patta, but it is the Thasildar. Of course, the competency is not in dispute. Ex.P.2, though has been addressed to Tashildar, the appellant not being competent enough for ordering transfer of patta, had demanded and accepted the money. A reading of the entire evidence of PW.2 and PW.4, the prosecution has proved the demand and also proved the acceptance on 22.08.2006. In continuance of the same, the recovery of the tainted money is also proved by entrustment mahazar and also recovery mahazar and from the evidence of PW.2, PW.4 and TLO.
24. The learned Counsel for the appellant submitted that there are many contradictions among the prosecution witnesses.
25. A reading of the entire materials placed on record show that the above said contradictions are not material contradictions, which does not vitiate the case of the prosecution. http://www.judis.nic.in 14
26.Even though, the appellant need not prove his defence by direct evidence, he can very well establish his defence from preponderance of probabilities or probable evidence. Whereas in this case, the appellant had made an attempt to do so, but failed to prove his defence in the manner known to law.
27.In view of the foregoing discussion, this Court does not find any merit in the appeal and the same is liable to be dismissed.
28.In the result, the present criminal appeal is dismissed and the judgment dated 09.07.2010 made in Spl.CNo.9 of 2007 on by Special Judge cum Chief Judicial Magistrate, Tuticorin, is hereby confirmed. Consequently, connected miscellaneous petition is closed. The respondent is directed to secure the custody of the appellant forthwith to undergo the remaining period of sentence.
05.12.2018 dsk Index : Yes/No Internet : Yes /No To
1.The Special Judge cum Chief Judicial Magistrate, Thoothukudi
2.The Inspector of Police, Vigilance and Corruption, Thoothukudi District.
3.The Additional Pubic Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper (2 Copies), http://www.judis.nic.in Criminal Section, Madurai Bench of Madras High Court, Madurai.
15
P.VELMURUGAN, J., dsk Crl.A.(MD)No.246 of 2010 05.12.2018 http://www.judis.nic.in