Madras High Court
Appellant/Complainant vs Tr.P.Jawaharlal Pandian on 26 April, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
1 Crl.A(MD)No.43 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 26.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.A(MD)No.43 of 2018
State of Tamil Nadu rep by
The Public Prosecutor,
High Court,
Madras-600 104.
(V&AC Theni, Crime No.03 of 2013)
: Appellant/Complainant
Vs.
Tr.P.Jawaharlal Pandian,
Formerly Thasildar,
Uthamapalayam,
Theni District.
: Respondent/Accused
Prayer: Criminal Appeal filed under 374(2) of the
Criminal Procedure Code to set aside the judgment
passed in Spl.C.No.11 of 2014, dated 08.03.2017 by
the Special Judge/Chief Judicial Magistrate, Theni
and convict the respondent/accused as charged.
For Appellant : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
For Respondent : Mr.N.Anandhapadmanabhan
https://www.mhc.tn.gov.in/judis
2 Crl.A(MD)No.43 of 2018
JUDGMENT
The appeal has been preferred by the State against the judgment of acquittal that has been passed by the learned Special Judge/Chief Judicial Magistrate, Theni, in Spl.C.No.11 of 2014, dated 08.03.2017.
2.The case of the prosecution:-
P.W.2 lodged a complaint with the Inspector of Police, Vigilance and Anti Corruption, Theni, stating that the respondent demanded a sum of Rs.10,000/- for the purpose of issuing license for running a Pawn Broker shop. On the basis of the complaint given by the defacto complainant, a trap was laid while the respondent accepted the bribe amount of Rs.5,000/-. Further proceedings were undertaken and the respondent was arrested; After completing the investigation, final report was filed before the learned Special Judge/Chief Judicial Magistrate, Theni, stating that the respondent herein has committed the offence punishable under Sections 7 and 13(2) (d) r/w 13(1)(d) of the Prevention of https://www.mhc.tn.gov.in/judis 3 Crl.A(MD)No.43 of 2018 Corruption Act and the same was taken cognizance in Spl.C.No.11 of 2014 and framed the following charged against the accused.
3.Charge against the respondent:-
(i) The first charge against the accused person, respondent herein is that he demanded a sum of Rs.5,000/- as bribe amount for the purpose of issuance of license for running a Pawn Broker Shop.
On 18.06.2013, thereby, he committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
(ii) The second charge is that by demanding and accepting Rs.5,000/- as bribe amount, he has committed criminal misconduct and thereby, he is liable to punish for the offence under Section 13(2)
(d) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
4.After framing the above said charges, the respondent was questioned and he denied the charges. https://www.mhc.tn.gov.in/judis 4 Crl.A(MD)No.43 of 2018 For proving the above said charges, the prosecution examined 14 witnesses and marked 36 documents. On the side of the accused, namely the respondent herein, he himself was examined as D.W.1 and 9 documents were marked and 5 Material Objects were exhibited by the prosecution.
5.The case of the prosecution in brief as narrated through examination of witnesses:-
P.W.2 is a resident of Kamayakavundanpatti Village, Utthamapalayam Taluk, Theni District. He wanted to start a Pawn Broker Shop. So, on 03.06.2013, he approached the respondent, who was working as Tahsildar and also competent authority for granting license. He also remitted Rs.100 for issuance of license. On receiving the application, the respondent has instructed to come to the office after a week. Again on 10.06.2013, he contacted him through phone. At that time, he demanded Rs.10,000/-
as bribe. On 17.06.2013, he again approached the respondent and made an enquiry with regard to the https://www.mhc.tn.gov.in/judis 5 Crl.A(MD)No.43 of 2018 license. At the time also, he demanded the same. He stated his inability for arrangement of money. He asked him to reduce the same to Rs.5000/- from the original demand amount of Rs.10,000/-. The respondent has also accepted the same. Further, he is not willing to give bribe to the respondent. So, he preferred a complaint and lodged the same on 18.06.2013 before the Inspector of Police, Vigilance and Anti Corruption, Theni, at about 08.30 a.m. Which was received by the Inspector of Police, namely Muthuraj. He registered a case in Crime No.3 of 2013, which was marked as Ex.P.11 and further trap proceedings have been undertaken.
6.P.W.12 Mr.M.Muthuraj was working as Inspector of Police, Vigilance and Anti Corruption, Theni, during the relevant point of time and took the further process. He requested two official witnesses to assist the team for laying trap. Upon which, two official witnesses were also secured. When the official witnesses appeared, he introduced them to P.W.2. P.W.2 also handed over the amount of https://www.mhc.tn.gov.in/judis 6 Crl.A(MD)No.43 of 2018 Rs.5,000/-, which was demanded by the respondent as bribe. They preferred the mahazar noting down the currency note's number. They preferred Sodium Bicarbonate Solution. He also smeared the phenolphthalein powder on the currency notes and further process has been undertaken and advised P.W.2 and the official witnesses with regard to the trap process. After completing the above said preliminary work, at about 11.45 a.m, all of them started from the office. At about 01.00 p.m, they reached the office of the respondent. P.W.2 and one of the official witness namely, Baskaran were sent to the office of the respondent. They came out of the office after 10 minutes and informed that the respondent was attending a meeting at Veppampatti. He advised P.W.2 to contact the respondent through phone. He contacted him through phone. At that time, the respondent said to have asked P.W.2 to come to the Veppampatti Village. So, they started to go to the Veppampatti Village at about 02.30 p.m. They reached the spot and the Police Team was hiding in nearby place. P.W.2 and the official witness namely, https://www.mhc.tn.gov.in/judis 7 Crl.A(MD)No.43 of 2018 Baskaran were asked to go to the meeting spot and hand over the money already demanded by the respondent.
7.Further events were spoken by P.W.2. The respondent demanded P.W.2 whether he has brought Rs.5,000/-. He handed over the amount of Rs.5,000/-, which was smeared with phenolphthalein powder. After accepting the amount, he asked P.W.2 to come to the office in the evening and collect the license. He came out of the above said office and made a signal to the Police Team. Immediately, the Police Team entered into the meeting spot.
8.Further events were spoken to by the Inspector of Police, Muthuraj. The accused was identified by P.W.2. On seeing the Police Team, the respondent was found tensed. They prepared a solution containing Sodium Bicarbonate. They asked the respondent to dip his right hand fingers. The respondent has also dipped his finger. It turned pink. That solution was collected in the container and the same was sealed https://www.mhc.tn.gov.in/judis 8 Crl.A(MD)No.43 of 2018 and labelled. Similarly, another solution was also prepared and his left hand fingers were required to dip. He also washed his left hand in the above said solution. It turned purple. They collected the same in the another container. Labelled and sealed the same. The accused was arrested and further process of investigation was undertaken. The accused handed over Rs.5,000/-. He compared the note number with that of the Mahazar, which was prepared in the office. It was found tallied. The pant pocket of the accused was also dipped in the solution, which was separately prepared. It was turned purple. That solution was also collected in another container and it was sealed and labelled. Recovery mahazar was prepared and also recovered the relevant documents from the office. For that also, they prepared mahazar. They also searched the residence of the respondent and no document was seized.
9.Further investigation was also undertaken by P.W.13. He recorded the statement of the witnesses and sent the Material objects as well as the solution https://www.mhc.tn.gov.in/judis 9 Crl.A(MD)No.43 of 2018 for examination. He also collected the call particulars of the phone number, which belongs to the respondent and P.W.2.
10.Thereafter, further investigation was undertaken by P.W.14. He was working as Deputy Superintendent of Police, Vigilance and Anti Corruption, Theni. He perused the records and after completing the formalities and after obtaining the sanction, he laid the final report.
11.P.W.3, Baskaran, was working as Agricultural Officer, in the Office of the Assistant Director of Agriculture, Theni. He is a shadow witness. He corroborated P.W.2 in material particulars with regard to the acceptance of amount by the respondent and further process.
12.P.W.4, Surulivel, was working as Revenue Inspector, Tamilnadu Civil Supplies Corporation, Utthamapalayam, Theni District, during the relevant point of time. He also attended the meeting, which https://www.mhc.tn.gov.in/judis 10 Crl.A(MD)No.43 of 2018 was conducted on 18.06.2013 on Veppampatti Village. He has spoken about the arrival of Police Team to the spot, arrest particulars etc.,
13.P.W.5, Thirumurugan, was working as Deputy Tahsildar, Utthamapalayam, Theni Head quarters. The Vigilance Inspector contacted him and recovered the relevant document from the office.
14.Similarly P.W.6, Kumaravel was working as an Assistant in the Office of the Tahsildar, Utthamapalayam, Theni. He also handed over the required records to the Inspector of Police, Vigilance and Anti Corruption, Theni.
15.P.W.7, Rajaram, was working as an Assistant Revenue Inspector, Utthamapalayam, Theni, during the relevant point of time. He also attended the meeting on 18.06.2013 and saw the respondent talking with P.W.2. Later, he also saw the respondent arrested by the Vigilance and Anticorruption Police, Theni. https://www.mhc.tn.gov.in/judis 11 Crl.A(MD)No.43 of 2018
16. P.W.9, was working as an Assistant in the Forensic and Scientific Laboratory, Chennai. He has spoken about the examination of the Solution and Material Objects that have been submitted for analysis.
17.P.W.10, was working as Senior Executive Nodal Officer, Bharathi Airtel Ltd., Chennai, during the relevant point of time. On the request made by the Investigating Officer, he supplied the call details in respect of phone numbers 9629351481 and 944500596.
18.P.W.11, who was working as Tahsildar, Utthamayalam, Theni, in the place of the respondent. He has spoken about the phone, which was assigned to the respondent for official purpose.
19.Further examination of the prosecution side witnesses are over. The accused was put on Section 313 Cr.P.C proceedings. He denied the evidence that was submitted by the prosecution.
https://www.mhc.tn.gov.in/judis 12 Crl.A(MD)No.43 of 2018
20.On the side of the respondent he himself was examined as D.W.1 and he stated that on 03.06.2013, P.W.2 approached him for granting license for running Pawn Broker Shop. He assured him that license will be granted within a week. Again on 10.06.2013, he came to the office and threatened him for issuing license. On 18.06.2013, he contacted him over phone that he wanted a contribution amount for Flag Day celebration. He asked him to remit the money and get the receipt. But, P.W.2 came to the meeting spot and paid Rs.5,000/- and he appreciated P.W.2. There was some motive with regard to the confiscation of Tractors, which was used by P.W.2 for illegal transportation of stone.
21.After completing the examination of witnesses on either side, after hearing the parties and going through the records and evidence, the Trial Court found that the prosecution has failed to prove the case beyond all reasonable doubts and accordingly, acquitted the respondent.
https://www.mhc.tn.gov.in/judis 13 Crl.A(MD)No.43 of 2018
22.Against which, this appeal has been preferred by the State.
23.Heard both sides.
24.It is a case of illegal demand of Rs.5,000/- as bribe for the purpose of issuing license for running a Pawn Broker Shop by P.W.2.
25.Let us straightaway go to the evidence of P.W.2. Because, he has not supported the case of the prosecution during the evidence. Especially, during the course of cross-examination. In the course of chief examination, it is very clear in his evidence that on 3 occasion, the accused demanded bribe i.e., on 03.06.2013, 10.06.2013 and 17.06.2013 and the trap was laid on 18.06.2013. There was an original demand of Rs.10,000/- as bribe and after some persuasion, it was reduced to Rs.5,000/- by the respondent. Upto the trap proceedings and recovery, he supported the prosecution case. But, during the cross-examination, as mentioned earlier, there was https://www.mhc.tn.gov.in/judis 14 Crl.A(MD)No.43 of 2018 complete change with regard to the previous occurrence. He stated that the respondent herein seized JCB and Tractor vehicles, which belong to his employer and also imposed fine. Effort was made by him to get that vehicles. But, release did not succeed. Because of that, the employer had stopped him from his employment. Subsequently, he has also changed his version to the effect that there is different signature in Ex.P.2. He was aware that even before the date of trap, license was signed by the respondent i.e., on 10.06.2013 itself. He also thanked the respondent over the above said issuance of license. After receiving the amount in the place of meeting, the respondent appreciated him by his speech in the meeting itself.
26.According to him, what was accepted by the respondent was only a contribution towards donation to Flag Day celebration. So, because of this, he changed his version and he also turned hostile by the prosecution and extensive cross-examination was done. But, during the cross-examination by the prosecution, https://www.mhc.tn.gov.in/judis 15 Crl.A(MD)No.43 of 2018 he again changed his version that absolutely there is no connectivity between this case and the collection of Flag Day celebration donation. Because of disturbance in the mind, he changed his version during the course of cross-examination by the accused. So, a reading of the entire evidence of P.W.2 shows that he was not ..... even to his own conscience.
27.A reading of the entire evidence shows that at one point of time, he supported the prosecution. At another point, he supported the defence version. But, another point again he supported the prosecution. So, it clearly shows more swing. That is why I have stated that he was not true to his own conscience. So, the evidence of P.W.2 cannot be taken into account for any purpose.
28.At this juncture, the learned Additional Public Prosecutor would rely upon the judgment of the Hon'ble Supreme Court of India in the case of Vinod https://www.mhc.tn.gov.in/judis 16 Crl.A(MD)No.43 of 2018 Kumar Vs State of Punjab in Crl.A.No.554 of 2012 for the purpose of argument that the evidence of hostile witness need not be effaced completely to the extent of reliability, it can be relied upon. But, I am unable to agree with the learned Additional Public Prosecutor for the simple reason that the Court can not swing itself in tune with the mood of P.W.2. As mentioned earlier evidence of such a person is totally unreliable.
29.Now, let us go to the other positive evidence by the prosecution. P.W.3 is a shadow witness. It is very clear in his evidence with regard to the pre-trap arrangements and the trap itself. With regard to the demand and acceptance of money as bribe, he has stated that at about 02.30 p.m, for a visit of Veppampatti Village, where the meeting was held, the accused was addressing the public. P.W.2 went to meet him and gave money to the respondent and the same was received by the respondent and that was put in his right pant pocket. As advised earlier, https://www.mhc.tn.gov.in/judis 17 Crl.A(MD)No.43 of 2018 P.W.2 made a signal. After receiving the signal, the Police Team reached the place and thereafter money was recovered from the respondent and Sodium Bicarbonate Solution also turned pink when respondent was asked to wash his hands. So, according to him, he saw the accused receiving the money from P.W.2. So, his evidence is heavily relied on by the learned Additional Public Prosecutor, for the purpose of argument, this evidence is sufficient enough to prove the demand and acceptance of bribe. But, during the course of cross-examination, he stated that at the place of occurrence, there was large gathering of public. P.W.2 went near the accused, after clearance of 50 number of people. P.W.3 was standing at 25 feet distance from them. What sort of conversation taken place between P.W.2 and the accused was not known to him. After having the conversation about 2 or 3 minutes P.W.2 has returned. He was not informed about the conversation particulars. So, this piece of evidence during the course of cross-examination given by him. At the time of chief examination shows that he is not aware of the conversation that was https://www.mhc.tn.gov.in/judis 18 Crl.A(MD)No.43 of 2018 taken place between the accused and P.W.2. So, his evidence is not at all helpful to the case of the prosecution to prove the demand and acceptance of money by the respondent.
30.The learned Additional Public Prosecutor would submit that the evidence of P.W.2 and P.W.3 was corroborated by P.W.4. What he stated is that when the Police Team arrived, the accused was appearing tensed and thereafter, the Sodium Bicarbonate Solution Test was undertaken and Rs.5,000/- was recovered from him. So, the learned Additional Public Prosecutor would submit that this is enough for proving the demand and acceptance. His evidence can be relied on only for a limited purpose of proving that money was recovered from the accused. But, mere recovery of money is not sufficient to prove the demand and acceptance. It is settled position of law and more particularly, in a recent judgment of the Hon'ble Supreme Court in the case of N.Vijayakumar Vs State of Tamil Nadu in [email protected].(Crl.)Nos.4729-30 https://www.mhc.tn.gov.in/judis 19 Crl.A(MD)No.43 of 2018 of 2020 that has been held that the mere recovery of money without proof of demand and acceptance is not sufficient enough to convict the accused. Moreover, the Hon'ble Supreme Court has also elaborately discussed about the power of the Appellate Court against the judgment of acquittal. It has been held that if the view that has been expressed by the Trial Court is the possible view, the Appellate Court must very slow in reversing the same. Here, the view that has been expressed by the Trial Court is only possible view.
31.I am of the considered view that no ground is made out by the appellant to reverse the findings of acquittal. In the light of the above said discussion, this Court need not go into the other aspects whether the money was received by the respondent towards the contribution to the Flag Day celebration. https://www.mhc.tn.gov.in/judis 20 Crl.A(MD)No.43 of 2018 G.ILANGOVAN,J., dss
32.In the result, the appeal fails and dismissed. The judgment of acquittal that has been passed by the learned Special Judge/Chief Judicial Magistrate, Theni, in Spl.C.No.11 of 2014, is confirmed.
26.04.2022 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order dss To The Special Judge/Chief Judicial Magistrate, Theni.
Crl.A(MD)No.43 of 2018 https://www.mhc.tn.gov.in/judis