Madras High Court
I.Gopal vs State Represented By on 18 September, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.09.2018
RESERVED ON : 12.09.2018
DELIVERED ON : 18.09.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.453 of 2008
I.Gopal,
Village Administrative Officer,
Authoor Kaspa Village,
Tiruchendur Taluk,
Tuticorin District. : Appellant/
Accused
Vs.
State represented by
The Inspector of Police,
Vigilance and Anti-corruption,
Tuticorin.
(Crime No.3 of 2000). : Respondent/
Complainant
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure,
against the Judgment and sentence dated 10.09.2008 passed in Special Case
No.4 of 2002 by the learned Special Judge cum Chief Judicial Magistrate,
Tuticorin.
!For Appellant : Mr.P.Andiraj
^For Respondent : Mr.A.Robinson,
Govt. Advocate (Crl. Side).
:JUDGMENT
The appellant is the sole accused in Special Case No.4 of 2002 on the file of the learned Special Judge cum Chief Judicial Magistrate, Tuticorin.
2.The brief facts of the case leading to the filing of this appeal are as follows:
(i)Based on the complaint given by one Ramkumar, son of Velaiah Nadar alleging that the demand of Rs.200/- made by the accused Village Administrative Officer to issue certificate confirming that Chitraivel and Velaiah Nadar are one and the same person so as to enable the de facto complainant Ramkumar to get loan in Tamil Nadu Industrial Investment Corporation Limited (TIIC) for purchase of an auto-rickshaw, case was registered by the Department of Vigilance and Anti Corruption.
(ii)In the trap laid by the respondent police, the appellant was caught receiving Rs.200/- as illegal gratification on 14.07.2000 at 02.40 p.m. The de facto complainant, shadow witness and the chemical analysis report proved the fact of demand, acceptance and recovery of bribe money of Rs.200/-. The explanation offered by the accused that a sum of Rs.200/- is tendered by the de facto complainant towards payment of kist due payable by the de facto complainant, was found inadequate to rebut the presumption. Hence, the Trial Court has convicted the accused for offence under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 [hereinafter referred to as 'P.C. Act'] and sentenced to undergo 2 years rigorous imprisonment and to pay fine of Rs.500/- in default to undergo 3 months simple imprisonment for the offence under Section 13(1)(d) read with 13(2) of P.C. Act. No separate sentence is imposed for offence under Section 7 of P.C. Act.
3.Aggrieved by the said conviction and sentence, the present appeal is filed on the ground that the Court below failed to note that the sanction to prosecute, accorded by P.W.1 is without application of mind and without considering the chemical examination report. The Court below failed to note that Mariappan (P.W.4), who alleged to have accompanied P.W.2 at the time of payment of bribe, had turned hostile and not supported the case of the prosecution. The delay in lodging the complaint and sending FIR copy to the Court with delay caused doubt in the case of the prosecution, which is fatal. The seizure mahazar which alleged to have been prepared immediately after recovery of tainted money, does not contain the signature of the accused. The explanation offered by the accused for the receipt of the money, is more probable than the case of the prosecution. The evidence of D.W.1, who was present at the time of occurrence and is supported the version of the defence, is quite natural and reliable. However, the Trial Court has miserably failed to appreciate the evidence of D.W.1. When the evidence of P.W.2, P.W.5 and P.W.6 does not corroborate with each other, whereas the evidence of P.W.4 is natural and probable, the weight of evidence should have been in favour of the accused. Hence, the appellant is liable to be acquitted.
4.The learned counsel appearing for the appellant would submit that the case of the prosecution is that when P.W.2 sought for loan in TIIC for purchase of auto-rickshaw, one Balakrishnan from TIIC enquired the applicant (P.W.2) on 21.06.2000 and instructed him to get certificate from the Tahsildar through VAO that Chitravel Nadar and Velaiah Nadar are one and the same person. Therefore, on 23.06.2000, P.W.2 met VAO Gopal, the appellant herein. At that time, application to Tahsildar with an undertaking, copy of the Family Card and two copies of title deed were submitted to VAO. After three days on 26.06.2000, P.W.2 met the accused. The accused informed him that there is kist due and therefore, P.W.2 paid Rs.342/- towards the kist and received receipt Ex.P.6. On 27.06.2000, he went to Village Chavadi. He was directed to submit application and other documents to Deputy Tahsildar, Tiruchendur. At Deputy Tahsildar's office, Tiruchendur, they asked for house tax receipt. So, he went to Authoor Town Panchayat and paid Rs.52/- towards house tax in the name of his father and submitted the same to Esakkidurai, Clerk of Tahsildar on 30.06.2000. He told him to come at evening. VAO Gopal and Village Assistant Karuppasamy were present. When he asked for chitta copy, they gave the chitta. A declaration notarized by notary public was submitted by him on 03.07.2000 as instructed by the accused. On 06.07.2000, when P.W.2 and his friend Mariappan, went to VAO office and enquired about the certificate, he informed that certificate is ready, but he has spent too much to get it. Therefore, demanded Rs.200/-. P.W.2 came back and again went on 10.07.2000 along with his friend Mariappan. The accused reiterated his demand of bribe and told that unless P.W.1 gives money, he will not give the certificate. Therefore, on 13.07.2000 he went to Department of Vigilance and Anti Corruption office at Tuticorin along with his friend Mariappan at about 09.30 a.m. and gave the complaint. Based on the complaint, the police has arranged for trap. Pre-trap proceedings was organised in the presence of two witnesses Thirumalaichamy and Ponkaruppasamy. One 100 rupee note and two 50 rupee notes were smeared with phenolphthalein and entrusted to P.W.2. On 13.07.2000 at about 02.15 p.m., they went to Authoor Office. The accused was not in the office. When they enquired about the accused with Village Assistant Karuppasamy, he told that the accused has gone to his village and he will come back only on the next day. Therefore, on the next day at 09.30 a.m. again the entrustment mahazar was prepared and tainted money smeared with phenolphthalein was entrusted to P.W.2. At about 02.00 p.m., VAO came to Village Chavadi. P.W.3, Ponkaruppasamy followed the accused. There was crowd in the Village Chavadi. The accused, Revenue Inspector and Village Assistant were present. After some time, the accused called P.W.2 and enquired whether he has brought the money to get the certificate. P.W.2 answered in affirmative and handed over Rs.200/-, the money tainted with phenolphthalein. The accused received it and kept it in his pant pocket and took out the certificate from his pant pocket and gave it to P.W.2. After receiving prearranged signal, the trap team entered the Village Chavadi, enquired the accused whether he has received any money from P.W.2. The sodium carbonate solution on dipping the hands of the accused turned into pink answering positive to phenolphthalein. The accused admitted that he received bribe for issuing certificate that Chitravel Nadar and Velaiah Nadar are one and the same person. Thereafter, the accused was arrested. After completion of investigation and also after getting sanction from P.W.1 to prosecute the accused, final report was filed.
5.The Trial Court has framed charges for offence under Sections 7 and 13(1)(d) punishable under Section 13(2) of P.C. Act.
6.To prove the charges, the prosecution has examined 17 witnesses and marked 60 exhibits and 6 material objects. In defence, one witness, Thiru.Lakshmann has been examined as P.W.1.
7.On considering the evidence, the Trial Court has convicted the accused and imposed sentence as mentioned above.
8.Aggrieved by the same, the present Criminal Appeal is preferred on the grounds mentioned above.
9.Point for consideration:
?Whether the Trial Court has properly appreciated the evidence let in by the prosecution as well as the defence to arrive at a conclusion that the accused is guilty of the charges framed??.
10.The contention of the appellant is that the request from P.W.2 for certificate that Velaiah Nadar and Chitravel Nadar are one and the same person, was received on 23.06.2000. Immediately, enquiry was conducted and certificate (Ex.P.14) was made ready. The accused has signed Ex.P.14 on 27.06.2000. The Revenue Inspector has also signed the certificate on the same day and forwarded to Tahsildar, Tiruchendur. He has signed the certificate on 03.07.2000. For the Fasli 1406, Chitravel Nadar was supposed to pay land tax. For past four years from Fasli 1406, he has not paid any land tax. When P.W.2, came for a certificate, VAO insisted for payment of the land tax arrears. On 26.06.2000, P.W.2 paid land tax for Fasli 1406 and 1408, totally a sum of Rs.342/-, for which receipt was issued and the same is marked as Ex.P.6. On trap day, he tendered tax for the current Fasli, which was received by the accused. But due to some personal animosity and at the instigation of his adversaries, P.W.2 has given a false complaint.
11.Per contra, the learned Government Advocate (Criminal side) appearing for the respondent would submit that no doubt, the certificate requested by P.W.2 was made ready as early on 03.07.2000, the day on which the Tahsildar has signed Ex.P.14. Expecting the illegal gratification, the accused has withheld the certificate without dispatching the same till 14.07.2000. Only after receiving the bribe of Rs.200/-, the accused has handed over the certificate. The prosecution has proved through documents that the loan for purchase of auto-rickshaw has been sanctioned by TIIC and for want of this certificate, the disbursement was delayed. Taking advantage of the importance of the certificate, the accused had been delaying the process. If really, the money tendered by P.W.2 is for the land tax, then the same would have been paid when P.W.2 visited the Village Chavadi on the earlier occasion, i.e., on 13.07.2000, when the Village Assistant P.W.2 Karuppasamy was present. P.W.6 has deposed that on 26.06.2000, when P.W.2 met the accused, he was informed by the accused that land tax of Rs.342/- is payable and due from P.W.2's father. Accordingly, P.W.2 paid tax of Rs.342/- on the same day and got the receipt. It is also the evidence of P.W.6 that on 06.07.2000, Ramkumar, again came to Authoor Village Panchayat and met the accused. Ex.P.14 was made ready on 03.07.2000 itself. Therefore, the accused should have given the certificate to P.W.2 on 06.07.2000, when he met the accused. But the accused has not given the certificate either on 06.07.2000 or on 10.07.2000 when again P.W.2 met him. Therefore, the explanation given by the accused that on 14.07.2000, he received Rs.200/- from P.W.2 only towards tax, is highly unbelievable. The Trial Court has rightly rejected his plea. Therefore, the Judgment of the Trial Court need not be interfered with.
12.It is admitted by the accused that on 14.07.2000, he received Rs.200/- from P.W.2. Though Mariappan (P.W.4) has turned hostile, who is the prosecution witness to speak the demand of illegal gratification by the accused on the previous occasions, P.W.2 and P.W.3 had spoken about the demand of money by the accused. The accused also does not deny that he received money from P.W.2. So, the short point to be answered is whether the receipt of Rs.200/- by the accused on 14.07.2000 from P.W.2 is an illegal gratification other than legal remuneration or the money was for the land tax due?
13.In this regard, it is to be seen that the request for certificate was made on 03.06.2000. The said requisition letter is marked as Ex.P.5. Based on his request, enquiry has been conducted. The accused has demanded land tax for the Fasli 1406 and 1408. Accordingly, P.W.2 has paid Rs.342/- on 26.06.2000. The evidence of P.W.6, Karuppasamy, Village Assistant also corroborates that only Rs.342/- was the arrears and the same was demanded by the accused and paid by P.W.2. The Certificate (Ex.P.14) has been made ready as early on 03.07.2000. After certificate was made ready with the signatures of the accused, Revenue Inspector and Tahsildar, there is no genuine explanation from the accused, why he has withheld the certificate without despatching it or handing over the same to the de facto complainant either on 06.07.2000 when he met him at Village Chavadi or on 10.07.2000. If really there was any further due towards land tax, more and above what P.W.2 have paid on 26.06.2000, the accused should have demanded the same either on 26.06.2000 or on 06.07.2000 or on 10.07.2000, the days on which P.W.2 has met him regarding the certificate.
14.To probabilise the defence that Rs.200/- was only towards kist payable by P.W.2, then why the de facto complainant should give a complaint against the accused. For the said purpose, by way of suggestion to P.W.2, the accused has asked about a criminal case against the relatives of P.W.2 in which some other VAO has given evidence against them. Unrelated criminal case, in which neither the accused nor the complainant are party, cannot be a motive to give a false complaint against P.W.2. More so, when the de facto complainant (P.W.2) had cleared the arrears of land tax by paying Rs.342/- under receipt (Ex.P.6) as early on 26.06.2000 and the certificate been made ready on 03.07.2000. No explanation has been adduced by the accused for not despatching the certificate to P.W.2, but holding the same till 14.07.2000. Therefore, there is no doubt that Rs.200/- has been obtained by the accused as illegal gratification other than legal remuneration. The explanation offered by the accused for the receipt of this money, does not probabilise his defence in the light of the facts discussed above. Therefore, the conviction of the Trial Court is unassailable and the same is confirmed.
15.As far as the sentence is concerned, the Trial Court has sentenced the accused only for the offence under Section 13(1)(d) of P.C. Act and has erroneously observed that no separate sentence for offence under Section 7 of P.C. Act is required. The Trial Court has failed to note that Sections 13(1)(d) and 7 of P.C. Act are two distinct offences and minimum sentence is prescribed for both the offences. However, the Trial Court has imposed sentence for offence under Section 13(1)(d) punishable under Section 13(2) of P.C. Act for a period of 2 years rigorous imprisonment, which is more and above the minimum sentence prescribed for offences under Sections 7 and 13(1)(d) of P.C. Act. Since the Trial Court has imposed 2 years rigorous imprisonment, which is more and above the sentence prescribed for offence under Section 7 as well as Section 13(1)(d),, no prejudice is caused either to the prosecution or to the accused due to the omission of the Trial Court to impose separate sentence under Section 7 of P.C. Act.
16.Pointing out the said error not sentencing the accused under Section 7 of P.C. Act, this Court considering the other facts like the age of the accused, the quantum of bribe demanded and accepted, the long delay of 16 years, is inclined to modify the sentence from 2 years rigorous imprisonment to 1 year rigorous imprisonment, which shall be the minimum sentence prescribed for offence under Section 13(2) read with 13(1)(d) of P.C. Act. The sentence with regard to fine amount of Rs.500/-, in default to undergo 3 months simple imprisonment, is confirmed. This shall be the sentence for offence under Section 7 of P.C. Act also. The period of sentence shall run concurrently. The period of sentence already undergone shall be set off under Section 428 Cr.P.C. Bail bond if any executed by him, shall stand cancelled. The appellant/accused shall surrender before the Trial Court on or before 15.10.2018 to undergo the remaining period of sentence.
17This Criminal Appeal is partly allowed on the above terms.
To
1.The Special Judge cum Chief Judicial Magistrate, Tuticorin.
2.The Inspector of Police, Vigilance and Anti-corruption, Tuticorin.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.