Madras High Court
The State Represented By vs T.Stalin on 15 March, 2023
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.11.2022
Pronounced on : 15.03.2023
CORAM
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.A(MD)No.440 of 2016
The State represented by
The Public Prosecutor,
High Court, Madras
[V & A.C., Nagercoil
Crime No.5/2007] : Appellant/Complainant
Vs.
T.Stalin : Respondent/Accused
Prayer: Criminal Appeal filed under section 378(1)
of the Criminal Procedure Code, to set aside the judgment
of acquittal of the respondent/accused passed in Special
Case No.4 of 2008, dated 08/08/2016 by the Special Judge
and Chief Judicial Magistrate, Nagercoil and convict the
respondent/accused for the charges framed against him.
For Appellant : Mr.S.Ravi
Additional Public Prosecutor
For Respondent : Mr.T.Mohan
for Mr.T.Lenin Kumar
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2
J U D G M E N T
This criminal appeal has been preferred against the judgment of acquittal, that has been passed in Special Case No.4 of 2008, dated 08/08/2016 by the Special Judge and Chief Judicial Magistrate, Nagercoil.
2.The case of the prosecution in brief:-
PW2 is the de-facto complainant and he is living in Villukuri Village. He intended to built a house in re- survey No.96/32C in Villukuri village. For that purpose, he wanted to apply loan. On 02/05/2007, he gave a petition before the Kalkulam Taluk Office. That petition was assigned to the accused for further process for making sub- division. On 03/07/2007, the accused demanded Rs.500/- as bribe amount for making sub-division and measuring the property. On the basis of the complaint given by the de- facto complainant, trap was laid, on 07/07/2007 and at about 12.55 hours, the accused was arrested, when he demanded and accepted bribe. He also admitted the demand and acceptance of the bribe amount of Rs.500/-. https://www.mhc.tn.gov.in/judis 2/4 3
3.After completing the formalities of investigation, final report was filed before the trial court and it was taken on file in Special Case No.4 of 2008 for the offences under sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
4.To prove the charges, on the side of the prosecution, 17 witnesses have been examined and 29 documents were marked, apart from 3 material objects. On the side of the defence, no oral and documentary evidence was adduced.
5.At the conclusion of trial, the trial court found the accused not guilty and acquitted him from the charges levelled against him.
6.Now challenging the above said acquittal, this appeal has been preferred by the State.
7.The case of the prosecution, as narrated through the examination of the witnesses:-
PW2 belongs to Villukuri Village and he intended to built a house in re-survey No.96/32C belongs to him and for that purpose, he intended to obtain loan and before that, https://www.mhc.tn.gov.in/judis 3/4 4 it required sub-division. For sub-dividing the property, he presented the petition along with challan, on 02/05/2007 to the Kalkulam Taluk Office. At that time, he handed over the petition to the Deputy Tashildar. On 25/06/2007, he received intimation from the Firka Surveyor to contact him on 27/06/2007 at about 12.00 noon along with documents. So he went to the Thasildar office to meet the accused. After going through the petition and records, the accused asked him to come on the next day, on 03/07/2007. On that day at about 10,00 am, he went to the Kalkulam Talk Office and met the accused. At that time, he demanded Rs.500/- as bribe amount for measuring the property and making recommendation for sub-division. He did not intend to bribe the accused. So on 06/07/2007 at about 04.00 pm, he lodged a complaint with the vigilance.
8.Further event is spoken by PW16, the Inspector of Police attached to the Vigilance and Anti Corruption Department. When he was working as Inspector of Police, in the above said Department in Kanyakumari District, on 06/07/2017 at about 04.00 pm, he received a complaint from PW2 and registered in Crime No.5 of 2007 under the Prevention of Corruption Act. By following due process of law, he requested the Government to depute two responsible persons for assisting the pre-trap and trap process. He https://www.mhc.tn.gov.in/judis 4/4 5 asked PW2 to come to the office on the next day, I.e., on 07/07/2007. After registration of the FIR, he despatched the original to the court and copies to the higher officials as per the procedure. After that, he made pre- trap arrangement by requesting the Government Officials to depute the responsible officer for assisting the Vigilance Department for the above process. In pursuance of the above said request, on 07/07/2007 at about 08.00 am, one Shanmugavel and Anbalagan attended the office and he introduced the above said witnesses to the de-facto complainant mutually and the pre-trap arrangement was made and the sodium carbonate solution demo was undertaken and the importance of the above said demo was explained to the witnesses and the de-facto complainant, handed over Rs. 500/-, which was intended to give as bribe and a mahazar was prepared by noting down the currency note numbers, in which all the witnesses were signed. It was smeared with phenolphthalein power and that was returned to PW2 with a direction to hand over the money to the accused on demanded by him and also given instructions to give a signal, if the above said money is accepted by the accused and for all the informations detailed mahazar has been prepared. The sodium carbonate solution which was undertaken for the demo was destroyed.
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9.At about 9.30 am, on that date, the police team along with the de-facto complainant started towards the office of the accused and arrived and the police team were hiding in a nearby place at about 10.00 am.
10.The further event is spoken by PW2. He would say that he along with PW3 entered into the office of the accused at about 10.10 am. At that time, the accused was not available. Only Krishna Prasad, the Village Assistant was available. They were waiting for the arrival of the accused. At about 12.50 hours in the after noon, the accused came in an auto and occupied the seat. The accused enquired him, whether he brought money, which was demanded by him. He gave Rs.500/- note, which was smeared with phenolphthalein power. The accused accepted the same, counted and put in the drawer and asked him to come later. He made a signal, as instructed and the police team enquired him about the accused and he has given full particulars with regard to the above said events.
11.The further event is spoken by PW16. He would say that after getting signal from the de-facto complaint, the police team entered the office of the accused. The accused was identified by the de-facto complainant. He asked the de-facto complainant to go to his house and https://www.mhc.tn.gov.in/judis 6/4 7 prepared the sodium carbonate solution and the accused was instructed to dip his right hand first and another solution was prepared and later, left hand was dipped. Both the solutions turned pink. They collected it in a separate container, labelled and sealed. He enquired about the bribe amount and the accused identified the drawer, where the above said money was put. The drawer was opened by the accused himself and Rs.500/- note was found and the witnesses Shanmugaval and Anbalagan were instructed to take money and count. It was also compared with the mahazar prepared at that time of the pre-trap. It was found to be tallied. So for that purpose, he prepared a detailed mahazar with regard to the event as well as the recovery of money. Later, he searched the house of the accused and during search, nothing was found, except the request that was made by the de-facto complainant for transfer of patta along with challan, etc.,. The entire file numbering about 38 pages was recovered. For that purpose also, they prepared a mahazar at 06.00 pm, the accused was taken to the office of the Vigilance Department and later he was released on bail.
12.Further investigation was undertaken by PW17, who was working as Inspector of Police Vigilance Department, Nagercoil. He received the file from PW16 and https://www.mhc.tn.gov.in/judis 7/4 8 recorded the statement of the witnesses and took efforts to send the material objects for chemical examination. After completing the formalities, receiving sanction order, he filed a final report implicating the accused.
13.PW3 is the shadow witness. He corroborated PW2 and PW6 with regard to pre-trap arrangement and actual trap, seizure, etc., facts. He also signed in all the mahazars, which were prepared in those occasions.
14.PW4-Krishna Prasad was the Village Assistant corroborated by PW2.
15.PW5 was working as Village Administrative Officer during the relevant time in Villukuri village and he supplied the documents, which are demanded by the Investigating Officer.
16.PW6 was working as Village Assistant during the relevant time and he identified the accused, who was working as Firka Surveyor.
17.PW7 supplied the service particulars of the accused to the Investigating Officer.
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18.PW8 was working as Taluk Surveyor in Kalkulam Taluk.
19.PW9 is the Land Surveyor, and he handed over the file of the de-facto complainant to the accused. He received the request made by PW2.
20.PW10 supplied the copies of the patta to the accused in respect of patta No.5688, on 03/07/2007.
21.PW11 entered the request made by the de-facto complainant in the relevant register, on 02/05/2007. In the above said file, recommendation that was made by the accused to issue joint patta was also available.
22.PW12 was the Auto Driver, who took PW2 and other witnesses to Villukuri VAO Office on that date.
23.PW13 was working as Village Administrative Officer during 1997-2000 in Kalkumal Rural Village and he made recommendation for joint patta. But there is a mistake with regard to the name of the person and that was also subsequently corrected.
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24.PW14 was the Scientific Assistant, who examined the material objects sent by the Investigating Officer and submitted the report.
25.At the conclusion of the trial, the accused was put to section 313 Cr.P.C questioning. The statement was filed by the accused at the time of 313 Cr.P.C proceedings. At the conclusion of the trial, the trial court acquitted the accused from the charges levelled against him. Challenging the order of acquittal, this criminal appeal has been preferred by the State.
26.Heard both sides.
27.It is a case of acquittal.
28.We can also remember familiar words of Justice V.Krishna Iyer on this principle in the case of Khem Karan and others Vs. The State of U.P and others (AIR 1954 SC 1567). In the word of Justice V.Krishna Iyer “The principle of law is well settled that merely because a different view of the evidence is possible mind, differ as rivers differ- you cannot cancel a finding against guilt.” https://www.mhc.tn.gov.in/judis 10/4 11
29.After this observation the Hon'ble Justice V.Krishna Iyer also emphasised the role of the appellate court in the following words:- “But the appellate Court is untrammeled in its power to re-evaluate the evidence bearing in mind the seriousness of overthrowing an acquittal once recorded.”
30.The Constitution Bench judgment of the Hon'ble Supreme Court in the case of Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore, Cochin (A.I.R. 1952.S.C 478) is relevant:-
“The High Court, even though it is hearing an appeal from an order of acquittal, has full powers to review the entire evidence that the acquittal order should be set aside. In exercising these powers the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Court as to the credibility of witnesses; (2)presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial; (3)the right of the accused to the benefit of any doubt; (4)the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage https://www.mhc.tn.gov.in/judis 11/4 12 of seeing the witnesses. AIR 1934 PC 227(2). Ref.(Para 20) Anno: Cr.P.C.S.423 N. 14 and 15.”
31.In the light of the above said settled law, in simple terms we can go to the judgment of the subsequent cases.
32.Let me extract the principle that has been laid by the Hon'ble Supreme Court in the case of N.Vijayakumar Vs. State of Tamil Nadu (AIR-2021-SC-766). In the above said case, the Hon'ble Supreme Court has also relied upon the earlier judgment in the case of Chandrappa and others Vs. State of Karnataka [(2007)4 SCC 415].
33.In that judgment, the Hon'be Supreme court has extensively extracted the principle, that was stated in para 42 as under:-.
“42.From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge :
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on https://www.mhc.tn.gov.in/judis 12/4 13 exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as,
“substantial and compelling reasons”, “good and
sufficient grounds”, “very strong circumstances”,
“distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” Further in the judgment in the case of Murugesan (supra) relied on by https://www.mhc.tn.gov.in/judis 13/4 14 the learned senior counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court.”
34.Further, the Hon'ble Supreme court was also referring to the judgment in the case of Murugesan and others [(2012)10 SCC 383]. In para 21 after referring to the above said judgment the Hon'ble Supreme court extracted the para 32, 33, 34 and 35 in Murugesan's case, which may be extracted for better appreciation hereunder:-
“32.In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the appellant accused, on the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression “possible view” is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which, at first blush, may seem https://www.mhc.tn.gov.in/judis 14/4 15 to convey a similar meaning though a fine and subtle difference would be clearly discernible.
33.The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms:
“erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral.
possible.—(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.”
34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the https://www.mhc.tn.gov.in/judis 15/4 16 High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.
35.A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefor, relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power under Section 378 CrPC was not called for.”
35.In the light of the above said settled position of law, I need not load this judgment by extensively citing the judgments that were filed in the compilation.
36.Now the point, which arises for consideration is, in the light of the above said observation of the Hon'ble Supreme Court, whether the conclusion or reasoning assigned by the trial court in acquitting the accused is a possible view one, whether it is based upon the relevant consideration and not perverse in nature. If two views are possible, the appellate court cannot take a different view from that of the trial court. The reason is that the https://www.mhc.tn.gov.in/judis 16/4 17 appellate court cannot supplant its own view in the place of the trial court.
37.Before we go into the disputed factual aspect, let us bear in mind the background facts.
38.Now let us proceed to discuss, whether the judgement of acquittal passed by the trial court is perverse in nature?
39.The operative portion of the judgement of the trial court in vernacular language is extracted hereunder:-
37/m/rh/M/6d; go vjphpaplkpUe;J
y";rg;gzk; U:/500-? ifg;gw;wg;gl;L. rh/bg/2 kw;Wk;
rh/bgh/3y; fz;lgoa[k;. m/rh/M/6y; fz;lgoa[k;
gpdhg;jypd; ghpnrhjid neh;kiwahf muR
jug;g[ tHf;Ff;F rhjfkhf Kot[ fpilj;Js;sJ
vd;Wk;. nkw;go gFg;gha;t[ mwpf;if m/rh/M/22 Mf FwpaPL bra;ag;gl;Ls;sJ vd;Wk; Twg;gLfpwJ/ nkny Twpago. m/rh/M/2y;. 2/7/07 md;nw jdpg;gl;lh tH';f ,ayhJ vd;Wk;. Tl;Lg; gl;lh nrh;j;J tH';fyhk; vd;W mwpf;if mspj;J. mjd; bjhlh;r;rpahf gl;lhtpy;; khWjy;fs; bra;J. mwpf;if rkh;g;gpj;jgpwF vjphp. m/rh/2lk; y";rg; https://www.mhc.tn.gov.in/judis 17/4 18 gzj;ij nfl;L. bgw Jspa[k; tha;g;g[ ,y;iy/ mjw;fhd vz;zKk; vjphpf;F ,Ue;jpUf;f KoahJ/ vdnt. y";rg;gzk; vjphpaplkpUe;J ifg;gw;wg;gl;ljhf brhy;yg;gl;lhYk;. mt;thW ifg;gw;wg;gl;L tpl;ljhy;. muR jug;g[ tHf;F vz;gpf;;fg;gl;ljhf bfhs;s KoahJ vd;W fPH;fz;l Kd; jPh;g;g[ vLj;Jiuf;fpwJ/ 2013 (4) Crimes 334 (HP) Mere recovery of tainted money from the table drawer of the accused in the absence of demand and acceptance bribe money will not prove the case of the prosecution. vdnt. nkw;brhd;d fhuz';fspd; mog;gilapy;. muR jug;g[. vjphpf;F vjpuhd y";rk; m/rh/2lk;
nfl;L bgw;whh; vd;w Fw;wr;rhl;il
re;njfj;jpw;F ,lkpd;wp epU:gzk; bra;atpy;iy
vd;W ,e;ePjpkd;wk; jPh;khdpf;fpwJ/
38/ vjphpf;F vjpuhd y";rk; nfl;L
bgw;whh; vd;w Fw;wr;rhl;L epU:gzkhfhj
epiyapYk;. vjphp. jd;Dila flikia muR
gzpia tpjpfSf;Fl;gl;L bra;Js;shuh> vd;gJk;.
y";rg;gzk; jd;dplkpUe;J ifg;gw;wg;gl;ljhf
brhy;yg;gLk; epiyapy;. mjid kWj;J rhl;rpak;
mspj;J jd;dplkpUe;J y";rg;gzk;
ifg;gw;wg;gltpy;iy vd;gij epU:gpj;Js;shuh>
vd;Wk; ghh;f;f ntz;oaJ tHf;fpd; jd;ikapy;
mtrpak; MFk;/
39/ m/rh/8 jpU/nrh;kuh$;. mf!;jP!;tuk;
tl;lhl;rpah; mYtyfj;jpy; tl;lrhh; Ma;thsh; epy
msitauhf gzpg[hpe;J tUgth;/ 7/6/07 Kjy;
fy;Fsk; tl;lhl;rpah; mYtyfj;jpy; tl;l rhh;
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19
Ma;thsh; epy msitauhf gzpg[hpe;Js;shh;/
mtUf;F fPH; tl;l Jiz Ma;thsh;fs;. gph;fh
rh;ntah;fs;. rhh;gha;thsh;fs;. tl;l KJepiy
tiuthsh; Mfpnahh; gzpg[hpe;J te;Js;sdh;/
nkw;go rhl;rpapd; rhl;;rpak;. xU epyj;ij
cl;gphpt[ bra;J gl;lh tH';FtJ rk;ge;jkhf vd;d tifahd eilKiw gpd;gw;wg;gl ntz;Lk; vd;W bjspthf vLj;Jiuj;Js;shh;/ m/rh/8 jd;Dila Kjy; tprhuiz rhl;rpaj;jpy;. @m/rh/M/2 tpz;zg;gj;jpy; nfl;Lf;bfhz;lgo mse;J. cl;gphpt[ bra;ag;glhky; Tl;Lg;gl;lhthf n$hrg;uh$; bgaiua[k; nrh;j;J vjphp !;lhypd; vGjpa[s;shh;/ cl;gphpt[ bra;a ntz;oa ntiy jhd; gph;fh rh;ntah; bra;a ntz;oa gzpahFk;/ 3/7/07y; fzpzp gl;lh. Tl;L gl;lh cs;s egh;fSf;F tl;lhl;rpah; mYtyfj;jpy; tH';fg;gl;Ls;sJ/ 2/7/07y; vjphp !;lhypd; ifbahg;gk; bra;Js;shh;/ 1/6/07 Kjy; 30/6/07 Koa cs;s vjphpapd;
ehl;Fwpg;gpy; nkw;fz;l gzpfis Fwpg;gpl;Ls;shh;/ mjpy; Mh;/o/Mh;/4604 epYitapy; ,Ug;gjhf Fwpg;gpl;Ls;shh;/ me;j ehl;Fwpg;g[ m/rh/M/15/ me;j ehl;Fwpg;gpy; 2/7/07y; ehd; RUf;bfhg;gk; bra;Js;nsd;/@ nkw;go rhl;rpaj;jpypUe;J rk;ge;jg;gl;l ,lj;ijg; ghh;itapl;L. mse;njh.
my;yJ msf;f ,aytpy;iy vd;why;
msf;f ,aytpy;iy vd;nwh mwpf;if jhf;fy;
bra;ahky;. Tl;L gl;lh tH';f mwpf;if
rkh;g;gpj;Js;sJ vjphpapd; tuk;ig kPwpa bray;
vd;gJ bjhpa tUfpwJ/ vjphp 3/7/2007y; fzpzp
gl;lhit tl;lhl;rpah; mYtyfj;jpy; bgw;W. mjpy;
m/rh/2d; bgaiu nrh;j;J jpUj;j';fs; nkw;bfhz;L 2/7/2007 vd Kd; njjpapl;L jdJ ifbaGj;ij bra;jjpypUe;J vjphp jtwhd vz;zj;jpy; fzpzp https://www.mhc.tn.gov.in/judis 19/4 20 gl;lhtpy; jpUj;jk; bra;J. m/rh/M/2 nfhg;gpy; ,izj;Js;sJ Fabrication of records done by the accused vd;nw ,e;ePjpkd;wk; fUJfpwJ/ nkYk;. m/rh/M/2 nfhg;ig vjphp 30/6/07 tiu epYitapy; itj;Js;sJ m/rh/M/15 K:yk; bjhpa tUfpwJ/ vjphp. m/rh/2d; 4?1-2 brd;l; ,lj;ij vd;iwajpdk; ghh;itapl;lhh; vd;Wk;. mt;thW ghh;itapl;ljpy;
cl;gphpt[ bra;a Koahj epyk; vd;W vt;thW
Kot[ bra;jhh; vd;Wk; vjphp jug;gpy;
tpsf;fg;gltpy;iy/ jhYfh mYtyfj;jpYk;
vjphpaplkpUe;J ifg;gw;wg;gl;l Kiwna m/rh/M/2.
m/rh/M/15 Kjy; m/rh/M/17 tiuahd
Mtz';fspypUe;Jk; bjhpatpy;iy/ jdpg;gl;lh.
my;yJ Tl;L gl;lh tH';f ntz;Lbkd;W fpuhk
eph;thf mYtyh; jhd; Tw Koa[k;/ m/rh/13 fpuhk
eph;thf mYtyuhf gzpg[hpe;J Xa;t[ bgw;Ws;shh;/
nkw;goahhpd; rhl;rpaj;jpypUe;J fpuhk eph;thf
mYtyhpd; ghpe;Jiuapd; nghpy;jhd; m/rh/M/20
Tl;L gl;lh tH';fg;gl;lJ vd;gJ bjspthfpwJ/
vdnt. vjphp m/rh/M/2y; nfl;Lf; bfhz;lgo.
mtUila gzpia bra;ahky;. Vnjh
fhuz';fSf;fhf jl;of; fHpj;J. jdf;F mjpfhu
tuk;g[ ,y;yhj Tl;Lg;gl;lh tH';fyhk; vd;W
mwpf;ifia m/rh/M/2y; rkh;g;gpj;Js;sJ mtUila rl;lg;goahd flikapypUe;J jtwpapUf;fpwhh; vd;nw ePjpkd;wk; Kot[ fhz;fpwJ/ 40/ vjphpaplkpUe;J 7/7/07 md;W tpy;Yf;Fwp fpuhk eph;thf mYtyf fl;olj;jpy;; itj;;J y";rg;gzk; ifg;gw;wg;gl;L. vjphpapd; iffs; gpdhg;jypd; ghpnrhjidf;Fs;shf;fp. mit neh;kiwahd Kot[fis je;jJ. rh/bgh/1 Kjy; 3. m/rh/M/6y; ifg;gw;wg;gl;ljhf muR jug;g[ tHf;F. https://www.mhc.tn.gov.in/judis 20/4 21 vjphp jug;gpy;. vjphp y";rg; gzj;ij nfl;L bgwtpy;iy vd;Wk;. m/rh/2. vjphpapd; rl;ilg; igapy; y";rg; gzj;ij jpzpf;f Kw;gLk;bghGJ. vjphp jl;o tpLk;nghJ Vw;gl;l if fyg;gpy;
gpdhg;jypd; gt[lh; vjphpapd; iffspy; jltg;gl;lJ
vd;W Twg;gLfpwJ/ ,jid Vw;Fk; tifapy;
vjphp jug;gpy; tha;bkhHp rhl;rpa';fs; VJk; Kd;
epWj;jg;gltpy;iy/ nkw;go tpsf;fk; muR jug;gpy;
cs;s re;njf';fis mDrhpj;J
Vw;Wf;bfhs;syhkh> vd;W ghh;f;Fk;bghGJ. vjphpapd; F/tp/K/r/315 gphptpd;goahd thJiu vjphpapd; tpsf;fj;jpw;F vjpuhf ,Uf;fpwJ vd;nw ePjpkd;wk;
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40.This is the concluding portion of the judgement and the reasoning, which decided the reason for acquittal.
41.From the above said, we can draw inference, that the trial court acquitted the accused mainly on the ground that even though, the recovery of the tainted money was proved by the prosecution and though no possible explanation was offered by the accused for possession of the above said tainted money, that will amount to only dereliction of duty, which warrants departmental proceedings and not penal proceedings.
42.This court completely at loss to understand the above said reasoning. It is nothing, but a perversed judgment, which is not based upon any evidence. How the trial court was able to record the finding to the effect that the possession of tainted money will amount to only dereliction of duty. This is, which does not satisfy the conscience of this court. So without going into the further reasonings of the trial court, this court wants to re- appreciate the evidence produced by the prosecution. So we will go to the factual aspects.
43.Let us keep in mind the dates and events, so that the proper understanding of the issue may be possible. https://www.mhc.tn.gov.in/judis 23/4 24
44.PW2 gave a petition before the Tahsildar for the purpose of sub division. As mentioned earlier, he intended to obtain loan for putting up construction. Over the above said application, he received intimation from the Tashildhar office, on 20/06/2007. With the above said intimation, he visited the office, on 27/06/2007. According to him, the accused asked him to come, on 03/07/2007. On 02/07/2007, recommendation was made by the accused for the purpose of making sub-division and issue joint patta. On 03/07/2007, PW2 contacted the accused and at that time, the above said alleged demand of Rs.500/- was made. On 06/07/2007, PW2 made a complaint to the Vigilance Department. On 08/07/2007, trap was laid and the accused was arrested. This is the sequence of events.
45.By relying upon this sequence of event, the accused officer would submit that since recommendation was made by him on 02/07/2007 itself, absolutely there is reason or occasion for him to demand the bribe amount, on 03/07/2007. So according to him, the demand of bribe is too remote and this is enough for rebutting the presumption under section 20 of the Prevention of Corruption Act. This is the one of the defence and this will be dealt with in the later portion of the judgment.
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46.With these things, all the informations are not denied by accused himself. It is also spoken by official witness on the side of the prosecution, in which we need not go into detail.
47.The above said petition and the recommendation, etc., are admitted and the documents are also collected during the course of investigation.
48.We shall mainly concentrate on the initial demand and trap events. According to PW1, initial demand was made, on 03/07/2007. With regard to the initial demand on 03/07/2007, except the statement, no other independent witnesses or corroborating documents are available. For the time being, suffice to say that there was no corroborative evidence with regard to the initial demand. PW2 has not spoken against the other persons, when the initial demand was made by the accused, on 03/07/2007. Because it was the working day and the time was 11.30 am.
49.Now the next demand, which was made on the date of trap, he would say that during the trap along with the money, which was smeared with phenolphthalein and PW3 de- facto complainant went to the office of the accused. At that time, the accused made enquiry, whether he brought https://www.mhc.tn.gov.in/judis 25/4 26 money, which was demanded by him. PW3 would also support this version.
50.So the question which arises for consideration is whether the answer that was made by the accused person, on 07/07/2007 at the time of trap will amount to demand of bribe as contemplated under the provisions of the Prevention of Corruption Act?
51.Here, this court wants to express an usual view. Wherein experience has shown, in all the cases of trap stereotype evidence used to let in by the prosecution to the effect that the accused made enquiry, whether the complainant brought money demanded by him. Considering the usual practice of the Vigilance Department leading such sort of evidence, it was concluded in many of the cases that this will not fit into definition of demand as contemplated under the provisions of the Prevention of Corruption Act. So I am of the considered view that the above said enquiry will not fit into the definition of demand.
52.With this in mind, let us go to the other aspects with regard to trap event.
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53.The learned Additional Public Prosecutor would submit that the trap has been established by the prosecution beyond all reasonable doubt, since PW3 is the shadow witness, corroborating the evidence of PW2 in all material particulars, tainted money was recovered from the accused, also found tallied with the mahazar, prepared at the time of pre-trap arrangement. The accused did not deny the recovery of money from him and what is stated by him is that the money was thrusted in his pocket when he was coming out from the office, at that time, the Vigilance Department officials came and arrested him.
54.The learned Additional Public Prosecutor would submit that when recovery of tainted money from the accused is accepted, then he has to give proper explanation for the above said possession of money. But the explanation given by him, whether it is acceptable or not is a matter for consideration.
55.The learned counsel appearing for the respondent would rely upon the judgment of the trial court to support his contention to the effect that each and every minutest particulars have been taken into account and the trial court has recorded the finding that absolutely, there is no possibility for the trap to have taken place. But reading https://www.mhc.tn.gov.in/judis 27/4 28 of the judgment of the trial court shows that it has created doubts on its own, which are not available in evidence.
56.Without any material evidence, courts cannot expect the events to happen in a mathematical precision. The doubts may assume importance only when there is a possibility of foisting a false case. So the question, which arises for consideration is whether in this case the admitted facts assume importance leading to an inference in favour of the accused.
57.PW2 has stated that at about 10.10 am, on the date of trap along with PW3, they went to the office of the accused officer. He was not available at that time and he was waiting outside. At about 12.50 pm, the accused officer came there. PW3 would say that at about 10.00 am, they went inside the office of the accused and at that time, the above said Krishna Prasad was available and the accused officer came to the office only at 12.50 pm.
58.Let us go to the evidence of PW4. He would say that on 07/07/2007 at about 10.10 am, he along with other persons went to the office, the accused was not available, later the accused came to the office at about 12.45 after https://www.mhc.tn.gov.in/judis 28/4 29 noon. There is no material contradiction with regard to the time factor.
59.PW16 also corroborated the above fact. So the 10 minutes difference in the event cannot be taken into account at all. The subsequent event also spoken by PW16 with regard to the preparation of mahazar, etc., facts. Wherein we find no major discrepancy in the time factor. I find absolutely no reason to doubt the trap time and the event took place, after the arrest of the accused and recovery of money, preparation of mahazars, etc. PW2 says that when demand was made by the accused, he handed over the same, that was received, counted and put it in the drawer. This has been corroborated by PW3 also. So I find no material contradiction with regard to the above said enquiry, that was made by the accused, accepting the money and keeping in the drawer. From this, it can be concluded that the money was accepted by the accused. We will deal whether the above said money was accepted by the accused knowingly that it is the bribe amount or in pursuance of the demand. But I already decided that no initial demand has been proved by the prosecution. With regard to the acceptance, only further discussion has to be made. https://www.mhc.tn.gov.in/judis 29/4 30
60.PW3 would say that when the enquiry was made by PW16 with regard to the bribe amount, the accused identified the drawer, where it was put. From the drawer the above said money was taken by him and another witness counted the same, as per the instruction given by the Inspector. And that was compared with the numbers in the mahazar during the course of pre-trap arrangement. That also tallied. Sodium carbonate test that was undertaken was also found to be positive, since it turned pink. From this, it has been established by the prosecution that only at the instance of the accused, the above said tainted money was identified and recovered.
61.Now an argument has been advanced by the accused that the above said drawer, where the money was found was not subjected to chemical examination. But I am unable to accept this line of argument for the simple reason that there was no denial on the part of the accused that the money was recovered from him. So this cannot be given any importance. Sodium carbonate solution also turned pink, when the accused officer dipped his hands in it. So the contention on the part of the accused officer that when PW2 put the money in his pocket, he tried to prevent the same, in the above said process, there was a scuffle between them. Because of that only, sodium carbonate solution https://www.mhc.tn.gov.in/judis 30/4 31 turned pink, when he dipped his hands. This story is highly unbelievable, which is not supported by any direct or even by circumstantial evidence.
62.PW4 would say with regard to the above said event that he did not know, what transpired between PW2 and the accused, but he has given corroborative evidence with regard to the entering of the accused into the office. He has spoken with regard to the arrest that was made. He was not cross examined by the accused with regard to the above said defence, but only with regard to the admitted facts. From this stand also, the trap event established by the prosecution.
63.In the light of the above said direct evidence, let us go to the circumstantial evidence that was stated to be available in favour of the accused, because circumstantial evidence has been strongly relied by the accused to doubt the prosecution theory. It was suggested by the accused that after completing the work of recommendation, PW2 insisted upon the accused officer to put the boundary stone for 1/3 cents in total extent of three cents, which belongs to his father by making sub division. That was refused by him, so the present complaint has been given and for that purpose, the social status of PW2 has been relied upon by the accused.
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64.PW2 is not an ordinary person, he is a Member of FACT INDIA Association, which is fighting against the corruption in the Government Departments. The accused has demanded the above said illegal order, that was refused by the accused. Another circumstance, that has been relied by the accused is that on 03/07/2007 itself, PW2 came to know that the officer will not do the duty, unless the bribe is paid. But by mentioning this, no complaint was given by him. But only 06/07/2007 after the duty was over, the above said complaint was given. But this is also not corroborated by any evidence.
65.Now let us go to the statement that was given by him under section 313 Cr.P.C. He would say that on 03.07.2007, when the alleged demand was made by him, no file with regard to the above said request was available with the accused. But from the evidence of PW16, the above said file was recovered along with other documents from the house of the accused officer. So the contention cannot be accepted that, on 02/07/2007 itself, his work was completed. Even if we accepts that the work was completed on 02/07/2007 itself, but still the file was available in his office. So the contention that there was no occasion for him to demand the bribe amount is not at all acceptable.
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66.It was argued on the side of the accused that the VAO's office, where the alleged trap said to have been taken place, was occasionally used by him. He never used the drawer and chair in the office. So according to him, absolutely, there is no possibility for him to have put the money in the drawer, which belongs to the VAO. But PW6, who was working as Village Administrative Officer during the relevant time has stated that the accused used to visit the office and on 27/06/2007 he visited the office and perused some documents. But on the date of trap, he was on leave. He also stated that he will not lock the drawer usually. So his evidence shows that the above said office used to visit for the purpose of verifying the records. Now the recommendation made by him is not disputed.
67.PW11 was working as Senior Draft Man in Kalkulam Taluk Office during the relevant time and the duty assigned to him was to verify the document for obtaining patta. The petition filed by the de-facto complainant was verified by him on 02/05/2007. Later, recommendation was made by the accused for sub-division and joint patta transfer is not proper. That has been relied by the trial court for recommending departmental action, instead of conviction. So the circumstance also clearly shows that even though recommendation was made by the accused officer on https://www.mhc.tn.gov.in/judis 33/4 34 02/07/2007 itself, but by keeping the file with him, he accepted the above said bribe, on 07/07/2007.
68.The next question is that explanation was offered by the accused officer soon after the recovery of money from him.
69.PW16 the trap laying officer would say that when enquiry was made, the accused has stated that the above said money was voluntarily given by PW2. But no statement was recorded. Now it has been contended that the above said explanation offered by the accused person was not properly verified by the Investigating Officer. But from the evidence of PW2 and PW3 during trap the above said money was given and accepted and later, recovered from the accused officer. When we take the explanation offered by the accused officer at the time of the above said trap, we can conclude that the accused accepted the amount knowingly that it is a bribe amount, though the initial demand was not proved. It clearly falls under section 7 of the Prevention of Corruption Act, though not under section 13(1)(d) of the Prevention of Corruption Act. So the judgment of acquittal passed by the trial court is liable to be interfered and accordingly, the judgment of acquittal is set aside and the accused is found guilty for the https://www.mhc.tn.gov.in/judis 34/4 35 offence under section 7 of the Prevention Corruption Act and the acquittal rendered for the offence under section 13(1)(d) of the Prevention Corruption Act is liable to be confirmed, though for different reasons.
70.Considering the age of the crime, which alleged took place in 2007 and the trial was undertaken in 2016 and the judgment was pronounced in 2016 and the appeal was filed in 2017 and now the judgment is rendered in 2023, considering the lapse of time, imposition of one year rigorous imprisonment will meet the ends of justice.
71.Accordingly, the accused is sentenced to undergo one year rigorous imprisonment apart from Rs.5,000/- as fine, in default to undergo two weeks simple imprisonment for the offence under section 7 of Prevention of Corruption Act. The trial court is directed to secure the respondent/accused and commit him to the prison for serving the sentence period. The remand period, if any, shall be given set off under section 428 Cr.P.C.
72.In the result, this criminal appeal stands partly allowed to the extent noted above.
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To,
1.The Special Judge and
Chief Judicial Magistrate,
Nagercoil.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN,J.,
er
Crl.A(MD)No.440 of 2016
15/03/2023
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