Madras High Court
D.Xavier Canute Raja vs The State Represented By on 9 October, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.10.2018 RESERVED ON : 01.10.2018 PRONOUNCED ON : 09.10.2018 CORAM THE HON'BLE DR.JUSTICE G.JAYACHANDRAN CRL.A(MD)No.303 of 2008 D.Xavier Canute Raja .. Appellant/Sole Accused -vs- The State represented by, The Inspector of Police, Vigilance and Anti-Corruption, Thoothukudi, Thoothukudi District. (Crime No.14 of 2003) .. Respondent/Complainant Prayer: Criminal Appeal is filed under Section 374 of Cr.P.C., against judgment and conviction rendered by the learned Special Judge cum Chief Judicial Magistrate, Thoothukudi, Thoothukudi District in Special Case No.4 of 2004 vide her judgment, dated 18.06.2008 by convicting the Appellant under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act in which without imposing any sentence in respect of 7 of the said Act, for the offence under Section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, a sentence of 2 years R.I has been imposed and to pay a fine of Rs.5,000/- in default to under go six months R.I. !For Petitioner : Mr.R.Anand ^For Respondent : Mr.K.K.Ramakrishnan Additional Public Prosecutor :JUDGMENT
The appellant herein is the sole accused convicted for offences under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act by the Special Judge-cum-Chief Judicial Magistrate, Thoothukudi in Special Case No.4/2014.
2.The case of the prosecution is that the appellant while serving as Office Assistant in Thoothukudi Municipality, on 16.07.2003, at 16.00 hours demanded a sum of Rs.5,000/- as gratification other than legal remuneration as motive or reward from one Mr.Manikavel for the purpose of assigning door numbers and fixing house tax for the newly constructed house by his employer Mr.John Anbunathan. Since Mr.John Anbunathan was not ready to pay any bribe money for getting new door numbers and fixation of house tax, a complaint was lodged to the Inspector of Police, Vigilance and Anti Corruption, Thoothukudi by Mr.Manickavel and Rs.5,000/- was also given by John Anbunathan to trap the accused with instructions to lodge complaint. Accordingly, Mr.Rajendran, the Inspector of Police, to whom the complaint was given, registered the complaint and arranged for trap. On 17.07.2003, the accused was contacted at Anbu Medical shop as per his instructions by Manickavel and shadow witness Rengaraj. When the accused reiterated his earlier demand of bribe, Manickavel tendered tainted money to the accused. The Trap Team led by Inspector of Police Rajendran apprehended the accused, conducted phenolphthalein test. Both the hands of the accused found positive. Rs.3,850/- was recovered from the accused along with the tainted currency of Rs.5,000/-. The accused was unable to give satisfactory reasons for receiving the money from Manickavel. Therefore, he was arrested. After examining the witnesses and recording the statement, the sanction to prosecute the accused was sought from the Commissioner of Thoothukudi Municipality, who is the competent authority to remove the accused/Office Assistant. After obtaining sanction, final report has been laid by the prosecution.
3.To prove the charges, the prosecution has examined 13 witnesses and marked 24 Exhibits and 12 material objects including the tainted money of Rs.5,000/-.
4.The trial Court, on appreciating evidence held the accused guilty of both the charges and convicted him to undergo two years Rigorous Imprisonment and pay a sum of Rs.5,000/- as fine. In default, six months Rigorous Imprisonment for offences under Section 13(2) and 13(1) of PC Act. No separate sentence under section 7 of PC Act was imposed. The period of detention already undergone by the accused ordered to be set off.
5.The accused aggrieved by the judgment of conviction has preferred the appeal on the following grounds.
a)The money received by the appellant is not an illegal gratification, but, it is the taxes payable by the de facto complainant towards water tax and property tax for the said property. As the appellant has properly explained the reason for receiving the money, the trial Court should have accepted the same and acquitted the accused. However, the Court below has erroneously convicted the appellant.
b)The work of assigning door number is not within the power of the appellant.
He is not in-charge of the area where the de facto complainant's property is situated. Without any requisition letter, door number cannot be assigned nor property tax can be assessed. In the absence of requisition letter, the case of the prosecution that for assigning door number and to fix property tax bribe was demanded and obtained by the appellant is not to believe. When, the prosecution has failed to prove neither demand nor acceptance, the Trial Court ought not to have presumed that the money alleged to have been recovered from the accused/appellant was towards illegal gratification.
6.Per contra, the learned Additional Public Prosecutor appearing for the state would submit that the prosecution has proved the guilty of the accused to the Court by letting out positive evidence to prove demand and acceptance of illegal gratification by the appellant/accused and therefore, the conviction of the Trial Court is sustainable. In fact, the learned Additional Public Prosecutor would submit that the Trial Court ought to have impose separate sentence for offence under Section 7 of PC Act also, since the statute prescribes minimum sentence for offence under Section 7 of PC Act and it is being distinct and separate offence, the trial Court should have also imposed sentence for the proved offence of Section 7 of PC Act.
7.Point for Consideration: Whether the trial Court has properly appreciated the evidence against the appellant.
8.PW2, Mr.O.Manickavel is the agent of John Anbunathan. Four new houses have been constructed by John Anbunathan at Kurinji Nagar, 3rd Street, Thoothukudi, for which, to assess tax and assign door numbers, PW2 has met the accused and requested him to inspect the buildings. The accused has gone with PW2 and has inspected the buildings at Kurinji Nagar. Next day, the accused again visited the buildings along with the Revenue Inspector. To get electricity connection, door number is essential, so, PW2 requested the accused to expedite the assessment process. But, till 16.07.2003, the accused did not assign door number. Therefore, PW2 on 16.07.2003, at about 4.00 p.m., met the accused at Thoothukudi Municipal Office and requested him to assign door numbers and told him that without door number he is unable to get electricity service. At that time, the accused has demanded Rs.5,000/- to arrange for allotting door number. This demand has prompted PW2 to give complaint Ex.P2. PW8 Rajendran has received the complaint and registered the F.I.R in Crime No.14 of 2003.
9.PW2, the de facto complainant, was introduced to the official witnesses Rengarajan and Anandan. In their presence entrustment Mahazar has been prepared after administering the significance of phenolphthalein?sodium carbonate solution test. The entrustment Mahazar has been marked as Ex.P4. The bribe money smeared with phenolphthalein (9 Nos. of five hundred rupees, 5 Nos. of hundred rupees) has been entrusted to PW2.
10.At about 4.00 p.m., PW2 and shadow witness Rengarajan along with the Trap Team had gone to Thoothukudi Municipality Office. PW2 and Rengarajan (PW3) met the accused at his chamber located in the first floor of the Municipality building. The accused has requested PW2 to come down to the ground floor. When both PW2 and PW3 came down to the ground floor, the accused has told them that he cannot receive the bribe in the office, so he wants to know when and where he can meet PW2 after office hour. PW2 has informed the accused that he will be at Anbu Medical Shop owned by his employer John Anbunathan. The accused has told PW2 to wait at Anbu Medical Shop and he will come and collect the money. This was informed by the PW2 to the Trap Team waiting outside the Thoothukudi Municipality office. They all went to Anbu Medical Shop and took position. PW2 and PW3 were waiting at the rear room of Anbu Medical Shop. At about 7.00 p.m. the accused came in a bike and parked his two wheeler in-front of Anbu Medical Shop. PW2 noticed his arrival and alerted the shadow witness Rengarajan. PW2 took the accused to the rear room of the shop. The accused demanded the money. PW2 offered the tainted money to him. The accused received the money, counted the same and kept it in his shirt pocket. When PW2 offered tea to the accused, he received the same. But before receiving the tea, the accused has taken out the bribe money and kept it on the table and placed his two wheeler key chain upon it. Rengarajan was watching all these incident. PW2 came out from the shop gave the pre-arranged signal to the Trap Team waiting in disguise. PW8 Rajendran who is the Trap Laying Officer has entered the Anbu Medical Shop. PW2 identified the accused to the Trap Team.
11. On seeing the Trap Team, the accused got perplexed. The accused was asked to dip his hands in the Sodium Carbonate solution. The colour changed into pink. Both the hand wash of the accused proved positive to phenolphthalein. Therefore, the hand wash sample was collected in two different bottles which were marked as M.O.Nos.3 and 4. When enquired about the money he received from the de facto complainant, the accused show currency found on the table placed under key chain. He has admitted that he received money from the de facto complainant and kept it in his pocket. He took out from the pocket to keep it in the rexin bag. Before that, he was offered with tea by the de facto complainant. Therefore, he kept the currency on the table and placed his key chain upon it. The shirt was recovered. The shirt pocket portion was tested with sodium carbonate solution, it was positive to phenolphthalein. The shirt pocket wash was also recovered.
12. On examining the rexin bag of the accused, they found a receipt book and 31 hundred rupees notes in a rubber band along with receipt No.034480 and 10 ten rupees notes, 5 hundred rupees notes and 3 fifty rupees notes. PW8 has recovered the tainted money of Rs.5,000/- and also Rs.3,500/- stated to be collected from Muthumathi, Night club Bar, towards water tap connection and Rs.650/- the tax collection of the day by the accused. The search of accused house resulted in recovery of house document of John Anbunathan.
13.From the evidence of PW2, the de facto complainant and the evidence of PW3, accompanying witness Mr.Rengarajan, the prosecution has proved that on 16.07.2003, at about 4.00 p.m both of them went to Thoothukudi Municipality office and had met the accused and as agreed by him, both the witnesses have gone to Anbu Medical Shop owned by PW5 John Anbunathan. At about 7.00 p.m., the accused has come to Anbu Medical Shop and had met PW2. The tainted money entrusted to PW2 under the entrustment mahazar were found on the table where the accused was sitting. The key chain of the accused found placed upon the tainted money. The demand and receipt of the tainted money is spoken by PW2 and corroborated by the shadow witness PW3.
14. The defence of the appellant is that the money was received towards water tax and property tax. The Trial court has rightly observed that if the accused has gone to the shop of the property owner and has received money towards property tax, there it should have been preceded by assessment for property tax or demand notice for the same. The accused, who was incharge of collection of tax can collect tax from the assesses. But there must be some material to show that the money collected is only towards tax and not otherwise. Therefore, without assessment of tax and tax demand notice, the trial Court has disbelieved the explanation given by the accused for the receipt of money.
16. In the appeal, contra to the defence taken before the trial court, it is contended that the appellant is not at all incharge of the said area for fixing door number or assess the property tax and the accused is not the appropriate authority to assign door number. Therefore, the alleged demand of illegal gratification for assigning door number is not genuine. It is also contended by the learned counsel for the appellant that without any requisition letter for assigning door number or to assign property tax, the allegation of demanding illegal gratification to do so is baseless.
17. From the evidence of PW2 and PW3 coupled with PW8 Trap Laying Officer, prosecution has clearly proved the fact that PW2 and PW3 met the accused at his office on 16.07.2003 at about 4.00 p.m. and later in the evening the accused gone to Anbu Medical Shop. His visit to Anbu Medical Shop is spoken by PW.2, PW3 and PW8 Trap Laying Officer.
18. If the contention of the appellant that without request for assigning tax, the demand of illegal gratification for assigning tax will not arise to be taken as correct, then without any assessment of tax, there is no need for the accused to visit the Anbu Medical Shop and receive water tax or property tax for a building where there was no request for assessment and no demand for the same.
19. Therefore, the explanation offered by the appellant for his visit to Anbu Medical Shop and receipt of money from PW2 does not provide any possible explanation to presume that the said money was towards tax collection and not an illegal gratification. From the evidence of PW2 and PW6, the buildings constructed by PW6 and his request to assign door numbers to the said buildings for getting electricity connection is found proved and for the said purpose the accused has demanded illegal gratification is also well established.
20.The learned counsel appearing for the appellant would contend that the Trap Team has failed to give opportunity to the accused immediately after trap to explain about the possession of the tainted money. To support his plea, he would rely upon Rule 47 of the Manual issued by Directorate of Vigilance and Anti corruption and also the judgment of the this Court in S.P.Tamilarasan Vs. State reported in 2017 (3) MLW (Crl.) 435.
21. In this case, there is no evidence to infer that the accused was given an opportunity to explain about the tainted money found in his possession immediately after the recovery. It is the lapse on the part of the Trap Laying Officer. However, Rule 47 is only a directory in nature but not mandatory. Non compliance will not vitiate the entire prosecution. It only taint the credibility of the prosecution. However, in this case, the evidences of PW2 and PW3 have established that the accused has gone to the premises of the building owner and received the tainted money. The explanation offered by the accused by way of suggesting to the prosecution witness, does not indicate that the tainted money recovered from his possession was not received by him with an intention to make pecuniary advantage or obtained as a reward to do an act favouring the complainant.
22.The learned counsel for the appellant would also contend that through PW5 the motive for giving false complaint against the accused has also been elucidated and therefore, the case of prosecution has to be disbelieved. In this regard, a reading of PW5 deposition discloses the fact that few months before the trap proceedings, Thoothukudi Municipality has taken action against PW6 John Anbunathan for putting up construction without planning permission. He has been prosecuted and made to pay fine of Rs.300/-. PW5 also admits in his cross examination that John Anbunathan at whose instance, the present complaint was lodged by PW2. No doubt John Anbunathan has been prosecuted by the Municipality Authority for deviation, that does not be a excuse for the appellant, an assistant in the Municipality Office for receiving Rs.5,000/- which is otherwise than any legal remuneration.
23.The trial Court, having found the demand and acceptance of the illegal gratification proved and the appellant has made pecuniary advantage by abusing his office, ought to have imposed separate sentence under Section 7 of PC Act without stopping with sentencing the appellant under Section 13(2) r/w 13(1(d) of the PC Act. However, the said lapse on the part of the trial Court, does not prejudice either of the party in view of the sentences imposed for the offence under Section 13(1)(d) of PC Act.
24. Therefore, this court pointing out the error in the Trial Court Judgment while sentencing the accused, confirms the conviction passed by the trial Court. In the light of the above said error, the sentence imposed by the trial Court warrants modification. Hence, the appeal is partly allowed. The sentence imposed is modified as below.
I)for the offence under Section 7 of PC Act one year Rigorous Imprisonment is imposed with fine of Rs.2,500/-, in default to undergo three months Rigorous Imprisonment and II)for the offence under Section 13(2) r/w 13(1)(d) one year Rigorous Imprisonment is imposed with fine of Rs.2,500/- in default to undergo three months Rigorous Imprisonment.
III)The period of sentence shall run concurrently. The Period of sentence already undergone shall be given set off under Section 428 of Cr.P.C. IV)The Trial Court is directed to secure the appellant and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by the appellant/accused shall stand cancelled.
To
1.The Special Judge cum Chief Judicial Magistrate, Thoothukudi.
2.The Inspector of Police, Vigilance and Anti-Corruption, Thoothukudi, Thoothukudi District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Criminal Section, Madurai Bench of Madras High Court, Madurai.
.