Madras High Court
N.Karunakaran vs State on 7 August, 2009
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/08/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.A.No.898 of 2000 1.N.Karunakaran 2.P.Kolappan . . . Appellants/ Accused 1 & 2 Vs. State, rep. by the Inspector of Police, Vigilance and Anti-corruption, Nagercoil. . . . Respondent/ Complainant Criminal appeal is filed under Section 374 of Cr.P.C., against the judgment dated 29.09.2000 passed in Special Case No.2 of 1994 by the Additional District and Sessions cum Special Court, Nagercoil. !For appellants ... Mr.K.Kanimozhi Suresh ^For respondent ... Mr.Siva Ayyappan, Government Advocate (Criminal side) :JUDGMENT
The conviction and sentence passed by the Additional District and Sessions cum Special Court, Nagercoil in Special Case No.2 of 1994 are being challenged in the present criminal appeal.
2.The epitome of the prosecution case is that during the relevant period the first accused by name Karunakaran has served as Revenue Inspector in the Municipal Office, Nagercoil and the second accused has served as Bill Collector in the said Office and the complainant by name Rajasingh is residing in Nesamani Nagar, Asaripallam Road and he constructed a new house in Survey No.H-3/11-9 and before starting construction work, he failed to obtain approval and on 10.07.1992 a notice has been served from the Municipal Office, Nagercoil and the same has been marked as Ex.P2. After receipt of Ex.P2, a plan has been prepared and the complainant has paid Rs.252/- through a chalan and the same have been given on 12.10.1992 in the Municipal Office, Nagercoil and the petition given by him has been marked as Ex.P3 and the plan has been marked as Ex.P4 and the sale deed which stands in the name of the complainant has been marked as Ex.P5 and the said chalan has been marked as Ex.P6. Before completing the construction, the complainant has started to live in the said house from November 1992 and on 09.12.1992 some officials of Municipality have come to his house. On 11.12.1992 at about 10.30 a.m. the Municipal Commissioner, first accused and three others have come to the house of the complainant and measured the same. The Commissioner has asked the complainant about incompletion of construction work and the complainant has told him that within ten days, he would finish the entire construction works. The first accused has directed the complainant to come to Municipal Office5 with sale deed, chalan, etc., and also to meet him. On 21.12.1992 at about 10.30 a.m. the complainant has met the first accused in his office and handed over all the relevant documents. The first accused has noted down some particulars in his personal diary relating to 10th December. The first accused has also put his initial in chalan by way of making an endorsement to the effect as verified. The notes prepared by the first accused have been marked as Ex.P7. The first accused has told the complainant that for reducing house tax, he has to bear some expenses. On 23.12.1992 some officials from Municipal Office have come to his house. On 04.01.1993 at about 10.30 a.m. he has met the first accused in his house and enquired about the house tax. The first accused has demanded Rs.500/- by way of illegal gratification for reducing the house tax. The complainant has told him that he is not having money and he has come to his office only for paying house tax. The first accused has directed him to come to his office tomorrow with Rs.500/-. The complainant has not desired to pay bribe to the first accused. On 05.01.1993 he applied for casual leave in his Office and on the same day at about 10.30 a.m., he has gone to Vigilance and Anti-corruption Office, Nagercoil and met the Inspector of Police viz., Shanmuganathan and he narrated the entire occurrence and requested him to take action. The Inspector of Police has taken down a statement from the complainant and the complainant has put his signature and the statement given by him has been marked as Ex.P10 and his signature has been marked as Ex.P11.
3.On receipt of Ex.P10, the Inspector of Police, Vigilance and Anti- corruption, Nagercoil has made pre-trap arrangements and subsequently the complainant and decoy witness by name Jayakumar have gone to the Office of the first accused and the first accused has demanded Rs.500/- as bribe from the complainant and the complainant has given the same to the second accused as per the direction of the first accused.
4.The Inspector of Police, Vigilance and Anti-corruption, Nagercoil has conducted investigation and after completing the same, laid a final report on the file of the trial Court and the same has been taken on file in Special Case No.2 of 1994.
5.The trial Court, on the basis of the alleged culpability of both the accused and other connected documents, has framed first charge against the first accused under Section 7 of the Prevention of Corruption Act, 1988, second charge against the second accused under Section 12 of the said Act, third charge against the first accused under Section 13(2) read with 13(1)(e) of the said Act and fourth charge against the second accused under Section 13(2) read with 13(1)(e) of the said Act and also read with 109 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.
6.On the side of the prosecution, Pws.1 to 16 have been examined and Exs.P1 to P44 and MOs.1 to 7 have been marked.
7.When the accused have been questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crimes. On the side of the accused, DW1 has been examined. However no documentary evidence has been let in on their side.
8.The trial Court, after perpending both the oral and documentary evidence has found the first accused guilty under Sections 7 & 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 and sentenced him to undergo three years rigorous imprisonment and also slapped a fine of Rs.500/- with default clause, for each offence. The second accused has been found guilty under Section 12 & 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 read with 109 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment and also slapped a fine of Rs.500/- with default clause for each offence. Against the conviction and sentence passed by the trial Court, the present criminal appeal has been filed at the instance of the accused as appellants.
9.The sum and substance of the case of the prosecution is that during the relevant period the first accused has served as Revenue Inspector in Municipal Office, Nagercoil and the second accused has served as Bill Collector in the said Office and the complainant by name Rajasingh is working as Conductor in Nesamani Transport Corporation and residing in Nesamani Nagar, Asaripallam Road and he constructed a house in Survey No.H-3/11-9 and before constructing the said house, he failed to obtain approval and on 10.07.1992 some officials of the Nagercoil Municipality have come to his house and directed the wife of the complainant not to put up further construction and therefore on 12.10.1992 he paid Rs.252/- through chalan and submitted all the connected documents in the Municipal Office, Nagercoil. On 09.12.1992 some officials of the Nagerocil Municipality have come to his house and measured the same. On 11.12.1992 the Municipal Commissioner, first accused and others have come to his house and the Municipal Commissioner has enquired him about the non-completion of construction and he assured to finish construction within 10 days and the first accused has directed him to come to his office with sale deed, chalan, etc. and on 21.12.1992 at about 10.30 a.m. he has met the first accused in his office and given all the relevant documents and the first accused has noted down something in his diary relating to 10th December. On 23.12.1992 some officials attached to Nagercoil Municipality has come to his house. On 04.01.1993 at about 10.30 a.m. he met the first accused and asked him as to whether he can pay house tax, but the first accused has demanded Rs.500/- by way of bribe so as to reduce house tax and on 05.01.1993 the complainant has given Ex.P10, complaint to the Inspector of Police, Vigilance and Anti-corruption and subsequently pre-trap arrangements have been made and in pursuance of the same, trap has been conducted in the presence of complainant and the decoy witnesses by name Jayakumar.
10.Before contemplating the arguments advanced on either side, the Court has to look into as to whether the prosecution has established the guilt of both the accused under the Sections mentioned in the charges.
11.The entire case of the prosecution hinges upon Ex.P1, complaint alleged to have been given by the complainant on 05.01.1993 to the Inspector of Vigilance and Anti-corruption, Nagercoil, wherein it has been clearly stated about the episode which has taken place on 21.12.1992, 23.12.1992 and 04.01.1993, and further it is stated in Ex.P10 that the first accused has demanded Rs.500/- by way of bribe from the complainant on 04.01.1993.
12.The author of Ex.P10, complaint has been examined as PW2. He has stated in his evidence that he is serving as Conductor in Nesamani Transport Corporation and residing in Nesamani Nagar, Asaripallam Road and constructed a new house in Survey No.H-3/11-9 without obtaining permission from the Municipal Office, Nagercoil and on 10.07.1992 some Officials of Municipality have come to his house and met his wife and also warned her not to put up further construction and they issued a notice also and the same has been marked as Ex.P2 and on 12.10.1992 he has given all the connected documents in Municipal Office, Nagercoil and on 09.12.1992 some Municipal Officials have measured his house and on 11.12.1992 the Municipal Commissioner, first accused and others have come to his house and the Municipal Commissioner has asked him about incompletion of construction work and he has given assurance to finish the same within ten days and the first accused has directed him to bring all records and also to meet him in his office. On 21.12.1992 he paid Rs.252/- by way of chalan and on the same day, he met the first accused and produced all the connected records and he has taken down notes in his diary and on 23.12.1992 some Municipal Officials have come to his house and on 04.01.1993 he met the first accused in his office at about 10.30 a.m. and the first accused has demanded Rs.500/- by way of bribe so as to reduce house tax. Further he would say in his evidence that on 05.01.1993, he met the Inspector of Police, Vigilance and Anti-Corruption, Nagercoil and narrated the entire occurrence and the same has been taken down by the Inspector of Police, Vigilance and Anti-corruption and the said statement has been marked as Ex.P10, complaint and the Inspector of Police has introduced two persons viz., Jayakumar and Kesari and both of them have ascertained the genuineness of the complaint given by him and the Inspector of Police has asked about Rs.500/- and he has given the same to the said Kesari and he counted the same and subsequently a mahazar has been prepared in that regard and further the Inspector of Police has directed one Constable by name Bagavathi Perumal to anoint phenolphthalein powder on the said currency notes and asked the said Kesari to count the same and thereafter, the Inspector of Police, Vigilance and Anti-corruption has directed one said Police Constable to bring water by utilishing a glass tumbler and in which sodium carbonate solution has been prepared and subsequently the said Kesari has been asked to dip his fingers of right hand in the said solution and colour of the said solution has become pink and subsequently the Inspector of Police has directed the said constable to place all currency notes on the left side pocket of his shirt and the same has been done and thereafter he and other witness by name Jayakumar have been directed to go to the office of the accused and accordingly both of them have gone there at about 5.10 p.m. and the first accused has been present in Revenue Hall and the second accused has also been present at that time and the first accused has enquired about the said Jayakumar and he replied that the said Jayakumar is his close friend and further the first accused has asked him about the money demanded by him and he replied that he is having the same and the first accused has directed him to give the same to the second accused and the second accused has received the same and after counting it, he placed the same in the left side inner pocket of his shirt and thereafter, prearranged signal has been given to the Inspector of Police and the Inspector of Police and others have come to Revenue Hall and he has been directed to come to Vigilance and Anti-corruption Office tomorrow.
13.The decoy witness by name Jayakumar has been examined as PW3. He has stated in his evidence that during the relevant period he served as Agricultural Development Officer, Kanyakumari District and he and one Kesari as per the request made by the Inspector of Police, Vigilance and Anti-corruption, have come to his office on the date of occurrence and both of them have been asked to ascertain the genuineness of the complaint given by PW2 and they ascertained the same by way of examining PW2 and subsequently, the Inspector of Police, Vigilance and Anti-corruption has observed all formalities and thereafter as per the direction of the Inspector of Police, Vigilance and Anti-corruption he and PW2 have gone to the office of the accused and met the first accused and the first accused has asked about him and PW2 has told him that he is his friend. The first accused has demanded money from PW2 and PW2 has tried to give the same to the first accused and the first accused has directed him to give the same to the second accused and the second accused has received the same without making any enquiry and he also placed the same in the left side inner pocket of his shirt and further he has deposed that after receiving prearranged signal, the Inspector of Police, Vigilance and Anti-corruption and others have come to Revenue Hall and he directed one constable to bring water from toilet and the same has been done and subsequently sodium carbonate solution has been prepared. The first accused has been directed to dip his fingers of right hand in that solution and he has done it and no change in colour has occurred and subsequently another solution has been prepared, the first accused has been directed to dip his fingers of left hand and he has done it and no change in colour has occurred and the said solutions have been taken in two bottles and the same have been marked as S1 & S2 (MOs.2 & 3). The Inspector of Police, Vigilance and Anti-corruption has enquired about money which has been given by PW2. The first accused has stated that the said money has been given to the second accused and subsequently the Inspector of Police has prepared necessary solution and the second accused has been asked to dip his fingers of right hand in the said solution and the same has become pink colour and likewise another solution has been prepared and the second accused has been directed to dip his fingers of left hand and the same has also become pink colour. The said solutions have been taken in two bottles which have been marked as S3 & S4 (Mos.4 & 5). The second accused has been asked about the money which has been received by him from PW2. The second accused has replied that the said money has been thrown out through a window and further he stated that he would produce the same, if he would be taken to that place and subsequently, the Inspector of Police, has prepared sodium carbonate solution. The second accused has been given an alternative shirt and his shirt pocket has been dipped in the said solution and the same has also become pink colour. The said solution has been placed in a separate bottle and marked as S5 (MO.6). Thereafter, the second accused has brought the Inspector of Police and others to outside and collected Rs.500/- and given the same to the Inspector of Police. The said currency notes have been verified with the numbers already noted down and all the currency notes are one and the same. The Inspector of Police, Vigilance and Anti- corruption has subsequently seized all the connected records.
14.The concerned Inspector of Police, Vigilance and Anti-corruption has been examined as PW15. He has stated in his evidence that on 05.01.1993, PW2 has given the complaint which has been marked as Ex.P10 and subsequently PW.3 and one Kesari have been called for and both of them have been asked to verify the genuineness of Ex.P10 and they have done it and thereafter he made all pre- trap arrangements and PWs.2 & 3 have been asked to go to the office of the accused and accordingly, they have gone there and after some time, he received pre-arranged signal and subsequently he and others have entered into the office of the accused and prepared sodium carbonate solution in two glass bottles and the first accused has been asked to dip his fingers of both hands and nothing has occurred in colour and he enquired the first accused about money given by PW2 and he stated that the same has been received by the first accused and thereafter, sodium carbonate solution has been prepared and the second accused has been asked to dip his fingers of both hands and the solutions prepared in two bottles have become pink colour and the second accused has been asked about money which has been given by PW2 and he replied that the same has been thrown out through a window and thereafter another solution has been prepared and after giving alternative shirt, the second accused has been asked to remove his shirt and its left side inner pocket has also been soaked in the solution and its colour has become pink and thereafter the second accused has taken him and others to out side of his office and collected Rs.500/- and given the same to him and all the currency notes have been recovered under a cover of mahazar and thereafter he seized all the connected documents from the office of the accused. Further he would say in his evidence that the subsequent investigation has been done by other inspector by name Subbiah.
15.The Chemical Examiner by name Ramani Ragunath has been examined as PW14. She has stated in her evidence that all the solutions have been subjected to chemical examination and the same contained phenolphthalein and sodium carbonate and her report has been marked as Ex.P41.
16.At this juncture, it would be more useful to look into as to whether the first accused has had connection with the house tax of PW2. One J.Thomas has been examined as PW4. He would say in his evidence that on 05.01.1993 he served as Revenue Officer in Nagercoil Municipality and the first accused has served under him as Revenue Inspector and the second accused has served under him as Bill collector and for the purpose of ascertaining yearly income of buildings, a ready reckoner is available and before levying tax, notice has to be sent to the concerned owner and the same should be served by Bill Collector and he should prepare a list and the same should be verified by the Revenue Inspector and thereafter both Revenue Inspector and Bill Collector should examine the concerned building and subsequently, the Commissioner will fix yearly income of the concerned building. Further he would say in his evidence that the first accused has noted down the measurement of the houses and Mary, Selvarani, Stephen, Rajasingh (PW2), Fransis Ammal & Ambiga and the same has been marked as Ex.P7.
17.The then Commissioner of Municipality, Nagercoil has been examined as PW5. He has stated in his evidence that from 27.08.1992 to 16.11.1994 he served as Commissioner in Nagercoil Municipality and his main duty is to fix yearly tax. On 11.12.1992, he inspected the house of PW2 and the same has been found in incomplete position and on the said date, the first accused has also come along with him and after meeting PW2, the first accused has belatedly got into zeep and he enquired him and he told that he directed PW2 to bring sale deed and other connected documents to Office. Further he would say that on 23.12.1992 he again examined the house of PW2. On that date also the first accused has come along with him. Further he would say that he has fixed yearly tax to the tune of Rs.720/- and given monthly list register to the first accused.
18.One Rajamanikkam has been examined as PW-6. He has stated in his evidence that he and the first accused have measured the house of PW2.
19.From the conjoint reading of the evidence of PWs.2, 3, 14 & 15, the Court can easily come to a conclusion that on 04.01.1993 the first accused has demanded Rs.500/- by way of bribe from PW2 and on 05.01.1993 he again demanded the same and the same has been given to the second accused as per his direction. Further from the evidence of PWs.4 to 6, the Court can unflinchingly come to a conclusion that the first accused has played his role in connection with fixing of yearly tax, to the house of PW2.
20.The learned counsel appearing for the appellants/accused has made the following fatuous exercises so as to set aside the conviction and sentence passed by the trial Court against the appellants/accused.
a)The first accused has had no connection whatsoever with fixing of tax in respect of the house of PW2 and the entire levy of tax lies upon the Commissioner and therefore, both the accused have been falsely implicated in the present case.
b)The specific case of the prosecution is that the first accused has demanded the alleged bribe amount of Rs.500/- from PW2 in his office on 05.01.1993 at about 5.30 p.m. and at that time so many officials have been present and therefore it is totally incredible on the part of the first accused to demand the alleged bribe amount from PW2.
c)The evidence adduced by PWs.2 & 3 are totally contra.
d)The specific evidence of PW3 is that in sample bottles (S3 to S5) no pink colour solution is found and therefore, the alleged samples are bogus
e)The alleged samples might have been tampered with as per the evidence of PW15.
f)PW2 has constructed his house without obtaining prior permission and a case has been instituted against him and therefore, he has had a strong motive against the first accused.
g)No independent witness has been examined so as to prove the alleged demand of bribe by the first accused from PW2 and the alleged receipt of the same by the second accused.
h)Sample bottles have not been properly sealed.
i)The shirt of the second accused has not been seized.
j)Sketch has not been prepared with regard to place of occurrence.
k)The witnesses namely Kesari & Baghawathi Perumal have not been examined
l)No abetment has been proved with regard to second accused.
21.The first and foremost ground urged on the side of the appellants/accused is that the first accused has had no connection whatsoever with fixing of tax in respect of the house of PW2 and the entire levy of tax lies upon the Commissioner and therefore, both the accused have been falsely implicated in the present case.
22.At this juncture, it would be more useful to look into the evidence of PWs.4 to 6. PW4 viz., Thomas has stated in his evidence that on 05.01.1993 he served as Revenue Officer in Nagercoil Municipality and both the accused have served under him as Revenue Inspector and Bill Collector respectively and before fixing tax, a notice has to be sent to the owner of a particular house and the same should be served by the concerned Bill Collector and the concerned Bill Collector has to prepare monthly list in ward wise and the same has to be verified by the concerned Revenue Inspector and subsequently the concerned Revenue Inspector and Bill Collector have to fix yearly income as per the order of the Commissioner. From the evidence of PW4, the Court can easily discern that the first accused has had role in assessment of yearly tax of the house of PW2.
23.PW5, the then Commissioner of Municipal Office, Nagercoil has stated in his evidence that on 11.12.1992 he inspected the house of PW2 and on that day, the first accused has accompanied with him and after his inspection, the first accused has talked to PW2 and he has been enquired about his meeting with PW2 and he told that he directed PW2 to bring all records to Office. Further he would say in his evidence that on 23.12.1992 he again inspected the house of PW2 and on that day also the first accused has accompanied with him. Further he would say that he fixed yearly tax to the tune of Rs.720/- and given the same as well as monthly list record to the first accused. The evidence of PW5 has also revealed that in fixing yearly tax of the house of PW2, the first accused has had connection.
24.PW6, Rajamanikkam has also stated in his evidence that he and first accused have measured the house of PW2. Therefore, from the conjoint reading of the evidence given by PWs. 4 to 6, the Court can easily come to a conclusion that the first point urged on the side of the appellants/accused is not having merit.
25.On the side of the appellants/accused the decision reported in 2006 Cri. L. J. 518 (S.C.) (State Vs. K.Narasimhachary) wherein at paragraph No.22 the Honourable Apex Court has stated that it is not in dispute that it was PW-4 who was to evaluate the property and it was PW-3 who was to grant the certificate. The respondent was merely a recommending authority in the aforementioned situation and therefore, the order of acquittal passed in favour of the respondent/accused is sustainable.
26.In the instant case, as noted down earlier, PWs.4 to 6 have given consistent evidence about the role played by the first accused and also his responsibilities and further the specific evidence of PW2 is that he has produced all documents to the first accused and he has taken notes in his diary. Therefore, it is needless to say that the facts found in the present case are not identical to the facts of the decision referred to above and the same cannot be applied in the present case.
27.The second point urged on the side of the appellants/accused is that the specific case of the prosecution is that the first accused has demanded the alleged bribe amount of Rs.500/- from PW2 in his office on 05.01.1993 at about 5.30 p.m. and at that time so many officials have been present and therefore, it is incredible on the part of the first accused to demand the alleged bribe amount from PW2.
28.The specific evidence of PWs.2 & 3 are that on 05.01.1993 at about 5.30 p.m. both of them have gone to the office of the accused and met the first accused and the first accused has demanded Rs.500/- from PW2 and PW2 has given the same to the second accused as per the direction given by the first accused. In order to answer the second point raised on the side of the appellants/accused, the evidence of PW2 is very much essential. He has stated in his evidence that both he and PW3 have met the first accused and he enquired about PW3 and he told him that PW3 is his friend and the first accused has enquired about Rs.500/- and he replied that he is having the same and further he has stated that near the seat of the first accused, the second accused has been sitting and near their seats, nobody has been present. Therefore, it is quite clear that at the time of demanding the alleged bribe money from PW2, except the accused 1 & 2 no officials are present. Therefore, the second point urged on the side of the appellants/accused cannot be accepted.
29.The third point urged on the side of the appellants/accused is that the evidence adduced by PWs.2 & 3 are mutually incongruous and also contradictory.
30.The learned counsel appearing for the appellants/accused has pointed out certain contradictions found in the evidence of PWs.2 & 3. PW2 has stated in his evidence that after making pre-trap arrangement, the Inspector of Police, Vigilance and Anti-corruption has directed the Police Constable viz., Bagavathi Permual to place tainted money in the left pocket of his shirt and accordingly the said constable has placed the same, whereas PW3 has stated in his evidence that after making pre-trap arrangements, the Inspector of Police has placed the tainted money in the left side pocket of the PW2. The specific evidence of PW2 is that the said Police Constable as per the direction of the Inspector of Police has placed the tainted money in the left side pocket of his shirt. But PW3 has given a different type of evidence. The ultimate result is that after making pre-trap arrangements, the tainted money has been placed in the left side shirt pocket of PW2. With regard to placing of tainted money in the left side pocket of PW2, a flimsy contradiction is in existence between the evidence of PWs.2 & 3 and that itself would not militate the case of the prosecution. Therefore, the third point urged on the side of the appellants/accused is not sustainable.
31.The fourth point urged on the side of the appellants/accused is that PW3 has categorically stated in his evidence that sample bottles (S3 to S5) no pink colour solution is found. Therefore, the alleged samples are bogus.
32.In the chief examination, PW3 has clearly stated that after getting prearranged signal, the Inspector of Police, Vigilance and Anti-corruption and others have come to the Revenue Hall, where the tainted money has been given to the second accused as per the direction of the first accused and he prepared solutions in two different glass tumblers and the first accused has been asked to dip his fingers of both hands separately and its colour has not been changed and the said samples are S1 & S2 and subsequently the Inspector of Police has enquired the first accused about the tainted money and he told him that the second accused has received the same. The second accused has been called for and the Inspector of Police has prepared solutions in two glass tumblers and the second accused has been asked to dip fingers of his both hands separately and the same have become pink colour and the samples are S3 & S4. Further he has stated in his evidence that the Inspector of police has prepared another solution and the left side pocket of the shirt of the second accused has been dipped and the same has become pink colour and the said solution has been marked as S5. But, during the course of cross-examination he has stated that the bottles which have been marked as S3 to S5 do not contain pink colour solution.
33.As stated earlier, during the course of cross-examination he has clearly stated that in sample bottles (S3 to S5) he found solutions in pink colour. But, inadvertently during the course of cross-examination, he has stated that he has not found solution (S3 to S5) in pink colour. At this juncture, the evidence of PW15 has to be looked into. He has clearly stated in his evidence that after getting pre-arranged signals, he entered into the office of the accused and prepared solutions in two glass tumblers and the first accused has been asked to dip his fingers of his both hands separately and nothing has happened and further he has stated in his evidence that he again prepared the said solutions and the second accused has been asked to dip his fingers of both hands separately in the said solutions and the same have become pink colour and likewise the shirt of the second accused has also been dipped in another solution and the same has also become pink colour. Therefore, the mere evidence of PW3 given during the course of cross-examination would not have paved the way for disbelieving the case of the prosecution.
34.The fifth point urged on the side of the appellants/accused is that the alleged samples might have been tampered with as per the evidence of PW15, Inspector of Police.
35.PW15, during the course of chief examination has stated that after taking MOs.2 to 6, he left the same in the custody of one Head Constable by name Telvinraj. The second accused has taken him, PW3 and others to the place, where tainted money has been placed. During the course of cross-examination, he has stated that MOs.2 to 6 have not been sealed before going to the place where tainted money has been placed by the second accused. Only on the basis of the evidence given by PW15 in cross-examination, the fifth point has been urged on the side of the appellants/accused. PW15 has clearly stated in his evidence that MOs.1 to 6 have been placed in the custody of one Head Constable by name Telvinraj and therefore, there has been no scope for tampering with the samples. Under the said circumstances, the fifth point urged on the side of the appellants/accused also goes out without merit.
36.The sixth point urged on the side of the appellants/accused is that PW2 has constructed his house without obtaining prior permission and therefore, a case has been instituted against him and under the said circumstances, he has had a strong motive against the first accused.
37.Even in the chief examination, PW2 has clearly admitted that without obtaining prior approval of the concerned Department he put up construction. The first accused has served as Revenue Inspector during the relevant period and it is not his duty to institute either civil or criminal proceedings against PW2 on the ground that he has not obtained prior permission in respect of construction of his house and therefore, the sixth point urged on the side of the appellants/accused is of no use.
38.The seventh point urged on the side of the appellants/accused is that in the instant case, no independent witness has been examined so as to prove the alleged demand of bribe by the first accused from PW2 and also the alleged receipt of the same by the second accused.
39.The occurrence has taken place on 05.01.1993 at about 5.30 p.m. in the office of the accused. The specific evidence of PW2 is that near the seats of accused 1 & 2, the other officials have not been present. As rightly pointed out on the side of the appellants/accused, except PWs.2 & 3 no independent witness has been examined so as to prove the alleged demand of tainted money by the first accused as well as receipt of the same by the second accused.
40.At this juncture, the Court has to apply its practical mind as to whether the other officials would come forward to depose evidence with regard to alleged occurrence. Since the entire occurrence has taken place in the office of the accused, definitely, the other officials would not have come forward to depose evidence against the appellants/accused and further PWs.2 & 3 have given consistent and trustworthy evidence with regard to alleged demand of tainted money by the first accused and receipt of the same by the second accused and no strong motive has been in existence between PWs. 2 & 3 and accused. Therefore, the seventh point urged on the side of the appellants/accused is not having attractive force.
41.The eight point urged on the side of the appellants/accused is that sample bottles have not been properly sealed and therefore, the entire case of the prosecution is liable to be thrown out.
42.The specific evidence of PW15, the Inspector of Vigilance and Anti- corruption is that after taking samples, the same have been sealed. Of-course it is true that before proceeding to the place where the tainted money has been placed by the second accused, the sample bottles have not been sealed. But, at the same time, the same have been placed under the custody of the Head Constable by name Telvinraj. Therefore, it is totally unwarranted to contend that sample bottles have not been properly sealed. Under the said circumstances, the eight point urged on the side of the appellants/accused is also not having merit.
43.The ninth point urged on the side of the appellants/accused is that shirt of the second accused has not been seized.
44.The specific case of the prosecution is that as per the direction of the first accused, the second accused has received the tainted money from PW2 and he placed the same in the left side inner pocket of his shirt. PW3 and PW15 have clearly stated in their evidence that the left side inner shirt pocket of the second accused has been dipped in the concerned solution and the same has also become pink colour. In the trial Court, the said shirt has been marked as MO.7. Therefore, it is quite unwarranted on the side of the appellants/accused to raise the above point.
45.The tenth point urged on the side of the appellants/accused is that with regard to the place of occurrence sketch has not been prepared.
46.In fact, this Court has closely perused the entire records and ultimately found that Ex.P44 is the rough sketch showing the juxtaposition of the place of occurrence and its surrounding places. Therefore, the tenth point urged on the side of the appellants/accused is not correct.
47.At this juncture, the learned counsel appearing for the appellants/accused has relied upon the decision reported in 1994 Criminal Law Journal 545 (Madras High Court) (T.S.Ramaswamy Vs. State of Tamil Nadu) wherein it has been held that non-filing of sketch of place of occurrence showing places where accused and trap witnesses were found, is also a ground for giving acquittal to the accused in a case instituted under the prevention of Corruption Act.
48.In the instant case, as noted down earlier, Ex.P44 is the rough sketch which shows the seats of the accused 1 & 2 and its surrounding places. Therefore, the decision cited on the side of the appellants/accused has no relevance to the present case.
49.The eleventh point urged on the side of the appellants/accused is that the witnesses namely Kesari and Baghavathi Perumal have not been examined on the side of the prosecution.
50.It is an admitted fact that both PW3 and the said Kesari have also played some important role in the instant case. The said Baghavathi Perumal has also participated in the pre-trap arrangements. But both the said Kesari and Baghavathi Perumal have not been examined on the side of the prosecution. In the instant case, the main witness is PW2 and he has given trustworthy evidence to the effect that the first accused has demanded bribe from him and as per his direction he has given the bribe amount of Rs.500/- to the second accused. The decoy witness viz., PW3 who has had no connection whatsoever with the accused also deposed evidence to that effect. Therefore, non-examination of the said Kesari and Baghavathi Perumal would not militate the case of the prosecution at any stage. Further examination of witnesses is purely a discretion of the prosecution. The prosecution is having unfettered power of examining connected witnesses and at the same time the prosecution is also having discretion not to examine some witnesses so as to avoid proliferation of evidence. Therefore, the eleventh point urged on the side of the appellants/accused also goes out without merit.
51.The twelfth point urged on the side of the appellants/accused is that there is no abetment on the part of the second accused and he is an innocent person.
52.At this juncture, the learned Government Advocate (criminal side) has befittingly stated that if the prosecution has proved that there has been a voluntary and conscious acceptance of money, no further burden is cast upon the prosecution to prove by direct evidence, demand or motive.
53.In support of the said contention, he has drawn the attention of the Court, to the decision reported in 2006 (4) Crimes 326 (Supreme Court) (B.Noha Vs. State of Kerala & another), wherein it has been held that when it was proved that there was voluntary and conscience acceptance of money, no further burden was cast on prosecution to prove by direct evidence, demand or motive. The conviction could not be interfered with.
54.In the instant case, during the relevant period the first accused has served as Revenue Inspector and the second accused has served as Bill Collector. The specific evidence of PW2 is that the first accused has enquired about the bribe amount and he tried to give the same to the first accused, but the first accused has directed him to give the same to the second accused and the second accused has received the same from him and placed the same in the left side inner pocket of his shirt. The second accused is a Government servant and he is not legally entitled to receive money from PW2 other than his remuneration. But he received the same from PW2. Therefore, it is quite clear that the twelfth point urged on the side of the appellants/accused is also sans merit.
55.The residual point raised on the side of the appellants/accused is that PW3 has stated in his evidence that MO.1 series are found stragglingly in the place alleged to have been placed by the second accused whereas PW15 has stated in his evidence that MO.1 series are found together in folded shape and therefore, the entire case of the prosecution is liable to be rejected.
56.As rightly pointed out by the learned counsel appearing for the appellants/accused, PW3 has clinchingly stated in his evidence that MO.1 series are found stragglingly in the place where the second accused has placed the same, but whereas PW15 has stated in his evidence that MO.1 series are found together in folded shape. It is only a flimsy contradiction. In a case like this, it is a settled principle of law that the alleged demand of tainted money and also receipt of the same should alone be proved by the prosecution. If the said aspects are proved, the Court need not give much importance to flimsy contradictions and further contradictions which are in nugae, would not shake the case of the prosecution if the prosecution has adduced requisite evidence with regard to demand of tainted money as well as receipt of the same. In the instant case, as noted down in many places, the prosecution has adduced replete evidence so as to prove the above aspects and therefore, the residual point raised on the side of the appellants/accused also goes out without merit.
57.The other residual point raised on the side of the appellants/accused is that the specific evidence of PW5 is that on 11.12.1992 he, first accused and others have inspected the house of PW2, complainant and the same situates in Asaripallam, but in Ex.P20 there is no corresponding entry with regard to visit made on 11.12.1992. Under the said circumstances, PW5 has given false evidence so as to implicate the first accused in the present case.
58.It is an admitted fact that through PW5, Exs.P20 & P21 have been filed. In Ex.P20 the place Asaripallam has not been mentioned, but it has been mentioned as Thalavoipuram, Rajakkamangalam Road, Punnakkattu Vilai, Bharathi Nagar, K.P.Roadm, etc. But on the other hand, in Ex.P21 it has been clearly mentioned about the said Asaripallam. Exs.P20 & P21 are the official notes prepared by PW5. Even though in Ex.P20 the said Asaripallam has not been mentioned, in Ex.P21 the same has been mentioned and further the mere omission in Ex.P20 would not create the alleged circumstances that PW5 has acted against the interest of the first accused and further there is no motive in between PW5 and the first accused. Under the said circumstances, the other residual point raised on the side of the appellants/accused is also sans merit.
59.Now the Court has to look into other decisions accited by the learned counsel appearing for the appellants/accused.
60.In 1981 Supreme Court Cases (Cri) 586 (Gulam Mahmood A.Malek Vs. State of Gujarat) the Honourable Apex Court has held that in appreciating the evidence, the background of the story and the complainant must be considered.
61.For better appreciation, paragraph No.4 of the said judgment should be taken note of, wherein it is stated as follows;
"It is alleged that on July 7, 1972 Natvarlal paid a sum of Rs.2 to the accused for getting the case adjourned to July 18, 1972. Apart from the fact that the evidence of Natvarlal is not corroborated, the trial Court found that on his own showing the case was adjourned to July 18, 1972 on July 4, 1972 and there was no need for any request by the complainant on July 7, 1972 for posting it on July 18, 1972. ....."
62.Since the concerned case has been adjourned to July 18, 1972 on July 4, 1972 itself, it is totally unbelievable on the part of the accused to demand Rs.2 from the complainant on July 7, 1972 so as to adjourn the particular case to July 18, 1972. Under the said circumstances, the Honourable Apex Court has held that in appreciating the evidence, the background of the story and the complainant must be considered.
63.In the instant case, the factual situation is entirely different. Therefore, it is needless to say that the decision referred to supra has no application in the present case.
64.In 2005 Supreme Court Cases (Cri.) 1424 (Ganga Kumar Srivastava Vs. State of Bihar) the Honourable Apex Court has disbelieved the version of the prosecution mainly on the following factual background; As regards recovery of Rs.150/- from shirt of appellant during the trap laid at his house, defence plea that taking advantage of the absence of the appellant the money was kept in the pocket of the flying shirt of the appellant and he was caught as soon as he put on that shirt hanging on a peg.
65.In the instant case, proper pre-trap arrangements have been made and trap has also been made properly. Further in the instant case, the place of occurrence is the office of the accused. The circumstances mentioned in the above decision are not available in the present case and therefore, the backgrounds mentioned in the decision referred to supra are totally alien to the facts and circumstances of the present case. Under the said circumstances, the decision referred to supra cannot be attuned in the present case.
66.In 2007 (3) Supreme Court Cases (Cri.) 175 (V.Venkata Subbarao Vs. State rep. by Inspector of Police, A.P.) the Honourable Apex Court has held that under Section 20 of the Prevention of Corruption Act, 1988 the presumption cannot be raised when the demand made by the accused is not proved.
67.In the instant case, replete and plethora of evidence are available so as to prove the alleged demand of tainted money from PW2 and also receipt of the same by the second accused as per the direction of the first accused. But, in the decision referred to supra, the alleged demand itself has not been proved. Under the said circumstances, the Honourable Apex Court has held that presumption available under Section 20 of the said Act cannot be raised.
68.In 1979 Criminal Law Journal 1087 (Suraj Mal Vs. State of (Delhi Administration)) the Honourable Apex Court has held that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.
69.In the instant case, PWs.2 & 3 have adduced substantive evidence so as to prove the alleged demand of bribe of Rs.500/- from PW2 by the first accused and also receipt of the same by the second accused on the basis of the direction given by the first accused and further recovery of tainted money as per the information given by the second accused has also been proved in the instant case. Therefore, the requisite legal aspects have been clearly proved in the instant case. Under the said circumstances, the decision referred to supra, has no application in the present case.
70.The trial Court, after having thorough discussion, has rightly found both the accused guilty under the Sections mentioned supra. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found any valid ground to make interference with the well merited judgment passed by the trial Court and under the said circumstances, the entire argument advanced by the learned counsel appearing for the appellants/accused are not suitable to the established facts and circumstances of the present case and altogether the present criminal appeal deserves dismissal.
71.In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The conviction and sentence passed in Special Case No.2 of 1994 by the Additional District and Sessions cum Special Court, Nagercoil are confirmed. If the appellants/ accused are not in duress, the trial Court is directed to incarcerate them in prison to serve out the remainder of sentence.
gcg To:
1.The Additional District and Sessions cum Special Judge, Nagercoil.
2.The Addl. Public Prosecutor, The Madurai Bench of Madras High Court, Madurai.
3.The Inspector of Police, Vigilance and Anti-corruption, Nagercoil.
4.V.R. Section, Madurai Bench of Madras High Court, Madurai.