Madras High Court
R. Sankara Karuppasamy vs State Rep. By on 19 December, 2011
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/12/2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal(MD)No.80 of 2007 R. Sankara Karuppasamy ... Appellant/Accused Vs. State rep. By Inspector of Police, Vigilance and Anti Corruption Wing Virudhunagar District. (in Cr.No.5 of 1998) ... Respondent/Complainant PRAYER Criminal Appeal filed under Section 27 of Prevention of Corruption Act 1988 and Section 374 of the Code of Criminal Procedure, against the judgment passed in C.C.No.1168/1999 by the learned Special Judge-cum-Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur dated 03.02.2007. !For Appellant ... Mr.N. Vijayarajan for Mr.P. Daneswaran ^For Respondent ... Mr.P. Kandasamy Additional Public Prosecutor :JUDGMENT
1. The summary of the prosecution case is as follows:
1.(a) In order to get contract in the Highways Department in the name of the father of P.W.3, his solvency certificate was required. P.W.3 got the signature of his father in the application for the said purpose and gave the same to Sippipaarai Village Administrative Officer on 14.10.98, which is Ex.P.7.
He also enclosed valuation certificate given by the engineer, along with the application, for the house of his father and the property tax receipts and Encumbrance Certificate as well. Ex.P.8 is Valuation Certificate given by the Engineer. Ex.P.9 series are the property tax receipts and.P.10 is Encumbrance Certificate. Ex.P.11 is the solvency certificate typed on Rs.20 stamp paper in which the accused signed on 30.10.1998. The accused was working as Revenue Inspector, Elayirampannai, during the relevant point of time. Both P.W.3 and his driver by name Muthuramapandian went to Tahsildar office at Sathur on 15.10.1998 and gave the application to P.W.6 Assistant who said that the Tahsildar would come after 2 or 3 days. He again went to Taluk Office and enquired. But they were informed to come 3 days later. On 27.10.1998, both P.W.3 and his driver went to taluk office and met P.W.6, who gave the application alongwith a slip attached to it and told them to see the Revenue Inspector to get the certificate. While returning from the taluk office, they met the accused and they asked him to give recommendation on the application and he also gave the application to him. He received it and demanded Rs.10000/- since the value of the property was Rs.10 lakhs and further saying that if he had to give the recommendation, Rs.1000/- for the value of Rs.1,00,000/- ought to be paid to him. P.W.3 bargained with him and hence the accused demanded Rs.8000/-. At that time, driver Muthuramapandian was with him.
1.(b) The accused asked him to come to his office at Elayirampannai two days later. P.W.3 and his father were not willing to part with Rs.8000/- as bribe. Hence he went to the respondent office on 29.10.1998 and gave Ex.P.12 complaint narrating all the above said events. P.W.9, the Trap Laying Officer received the complaint and lodged F.I.R Ex.P.25. He sent the complaint and F.I.R to the Chief Judicial Magistrate Court at Srivilliputhur. He asked P.W.3 to come on 30.10.98 with the amount as demanded by the accused.
1.(c) He gave requisitions to the Joint Director of Agricultural Department, Virudhunagar and the Deputy Registrar of Dairy Department to send official witnesses. He also made discreet enquiries regarding the conduct of the accused. On 30.8.1998 at about 8.00 a.m., P.W.2 Jothiramasamy from the Dairy Department and one Kandasamy from Agriculture Department came. P.W.3 also came, who was introduced to the witnesses. P.W.9 asked the witnesses to read the contents of F.I.R. He also asked that they have to render co-operation to trap the accused. P.W.3 produced 500 rupees currency notes numbering 16. P.W.1 asked Kandasamy to dip his fingers in the Sodium Carbonate solution, he did so. There was no change in the colour in the solution. He directed the witness to apply phenolphthalein powder over all the currency notes. It was done so. He asked witness Kandasamy to dip his fingers in the Sodium Carbonate solution. The solution turned to pink colour. P.W.9 explained the importance of phenolphthalein test to the witnesses. He also asked P.W.2 to accompany P.W.3 to go to accused office at Elayirampannai and witness the events and asked Kandasamy to be with the police party.
1.(d) He also gave instructions to P.W.3 to tender the tainted notes to the accused when demanded and if he received the same he should come out of the office and show his signal by removing his spectacles and clean it with his dhothi. P.W.9 prepared Ex.P.2 Mahazar for the above said events, in which the serial numbers of the currency notes of Rs.500/- denomination numbering 16 were recorded. The signatures of the witnesses were obtained in Mahazar.
1.(e) All of them left for Elayirampannai in the jeep belonging to respondent. P.W.9 asked P.W.2 and P.W.3 to go to the office of the accused and to act according to his instructions already given. Police party and witness Kandasmy were waiting in a hidden place. At about 2.25 p.m., P.W.3 came out of the office of the accused and showed pre-arranged signal. All of them entered into the office of the accused and P.W.9 introduced himself and others to the accused.
1.(f) P.W.9 asked the accused whether he has received bribe from P.W.1 for which he agreed. P.W.9 prepared Sodium Carbonate solution and asked the accused to dip his right hand. While he did so, the solution turned pink. The solution was taken in a white empty bottle and was sealed with respondent's office seal. A slip was pasted on the bottle in which particulars were written and signatures of witnesses and accused were obtained. The bottle is M.O.2.
1.(g) P.W.9 prepared another sodium carbonate solution and asked the accused to dip his left hand fingers. When he was doing so, it turned to pink. As stated earlier, the solution was packed and slip was pasted on the bottle and signature were obtained. When P.W.9 asked the accused to produce the currency notes, he produced them. The serial numbers of the currency notes were found tallied with the numbers mentioned in the Mahazar Ex.P.2. P.W.9 gave a dothi to the accused and asked him to remove his pant. The right side pocket of the pant was dipped into the sodium carbonate solution which turned pink. The solution was also packed as per the procedure aforementioned. For the above said events, P.W.9 prepared Ex.P.3 Mahazar.
1.(h) P.W.9 arrested the accused. He also recovered the solvency certificate from the accused under cover of Mahazar Ex.p.4. He sent advance intimation to the Chief Judicial Magistrate Court for searching the office of the accused and made a search. He seized a register maintained for the period 8.1.98 to 26.10.98 and also one quire note maintained by accused from 4.6.98 to 29.10.98 under the search list. Thereafter, he proceeded to the house of the accused and searched the same after giving intimation to the Chief Judicial Magistrate. No relevant material was found in the house. Ex.P.6 is search list. He sent the accused for judicial custody. On 31.10.1998, at about 8.00 a.m, he also sent the M.O.1 series as well as 3 bottles containing sodium carbonate solution and the pant of the accused under Form-95 to the Court.
1.(i) Thereafter, he placed the C.D. file to the Investigating Officer P.W.10, another Inspector of police. P.W.10 gave request to the Court to send 3 bottles containing solutions for analysis by the Forensic Sciences Department. He examined the witnesses, P.W.1 Kandasamy, the revenue officials and P.W.9 as well and recorded their statements.
1.(j) He also obtained Ex.P.1 sanction letter from the District Revenue Officer, Virudhunagar to prosecute the accused. After the investigation he laid charge sheet under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
2. After the prosecution evidence was over, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances available in prosecution evidence. He denied the complicity to the offences. He neither examined any witness nor marked any document on his side. The Trial Court, after analyzing the evidence on record, convicted the accused under Section 7 and 13(2) r/w 13(1)(d) of P.C. Act and sentenced him to undergo R.I.for three years for each offence and and to pay a fine of Rs.1,000/- (Rupees one thousand only) for each offence in default to undergo R.I. for six months for each offence and ordered to run the sentence concurrently. Aggrieved against the judgment of the court below, the accused has preferred this appeal.
Point for consideration:
3. "Whether the prosecution has brought home the guilt of the accused under the charges framed beyond all reasonable doubt?"
Point:
4. It is the first and foremost contention of the learned counsel for the appellant Mr.N.Vijayarajan that the presumption as to the demand could not be drawn in this case, since the evidence of witnesses are not cogent which are contradictory. It is the evidence of P.W.1 that he gave the application for solvency certificate before the V.A.O on 14.10.98. It is his further evidence that on 15.10.98 he went to Sattur Taluk Office along with his driver Muthuramapandian and asked P.W.6 Assistant by name one Poigainathan who told that Tahsildar was not there and asked them to come two or three days later, that after 3 days both of them went to the Tahsildar office and asked P.W.6, who stated that till then Tahsildar did not sign and directed them to come after 2 or 3 days, that on 22.10.1998 both of them went to the tahsildar office and met P.W.6, who said that the Tahsildar had forwarded the application to the Revenue Inspector and the application forwarded by Tahsildar was not sent along with enclosures which were handed over to P.W.3, that when they came out, the accused, who was Revenue Inspector, Ezhayirampannai, came at the entrance of the Tahsildar office and P.W.3 asked him to give recommendation for the solvency certificate and at that time he demanded Rs.1000/- for one lakh since the solvency certificate was for Rs.10 lakhs, he had to pay Rs.10,000/- and on further request of P.W.3, the accused reduced the bribe amount to Rs.8,000/-. It is in the evidence of the witness including the investigating officer that after Tahsildar made endorsement forwarding the application to the revenue inspector it should not be handed over to the applicant personally. But in this case the said procedure has been violated by giving application with endorsement to P.W.3 by P.W.6.
5. P.W.4 was working as Tahsildar in Sattur Taluk office during the relevant period, who says about the procedure being adopted in the matter of granting solvency certificate to the applicant. She says that the application for the valuation certificate of the engineer should be given to the tahsildar office and the Tahsildar would forward the same to the Revenue Inspector, who in turn would enquire V.A.O as to the property valuation and prepare a report and send the same to the Tahsildar and thereafter the Tahsildar would issue solvency certificate. But in this case on the date of presenting the application by P.W.3 itself i.e., on 14.10.1998, the V.A.O has issued the property valuation certificate in the form of recommendation putting date as 14.10.1998. But it has been subsequently altered as 26.10.2011. P.W.8 V.A.O categorically says in his evidence that he has issued Ex.P.20 report on 14.10.98 itself but the numericals '14' have been altered as '26' and he does not know who has made the alteration and that he did not alter the numbers. He has deposed that he issued the report Ex.P.20 on 14.10.98 itself and not on 26.10.1998. On the strength of the above evidence coming out from P.Ws.3 and 8, it is seen that P.W.3 gave application on 14.10.1998 and P.W.8 also gave his report on the same day.
6. P.W.4 Tahsildar further says in his chief examination that the application given by P.W.3 was received in the office on 26.10.98 and office seal was also put on the same day i.e., 26.10.1998, which is Ex.P.7. Further, she has initialled on the application. In the office seal, the date '26' was not legible and hence she wrote number '6' in the date portion of the seal, she further added. In the cross examination she says that she does not know whether P.W.3 presented the application along with the report of V.A.O, that the Revenue Inspector only has to get the report from V.A.O, that if V.A.O signed first and sent it to Revenue Inspector, it is wrong and that she did not enquire both V.A.O and Revenue Inspector as to this irregularity.
7. Ex.P.11 is the Solvency Certificate issued to P.W.3, in which signatures of V.A.O and Revenue Inspector are available. But the signature of the Tahsildar is not there. In this document also the date beneath the signature of V.A.O has been corrected as 26.10.1998 over the numbers '14'. A careful scrutiny of the above said oral evidence and the alteration in the report of V.A.O would candidly show that even before the accused/appellant got the report from V.A.O, V.A.O has given report as early as on 14.10.1998. Further, it is also seen that the date of application for solvency was 14.10.1998 and not 26.10.1998.
8. P.W.3 says in his chief examination that on 27.10.1998 the V.A.O demanded bribe from him. When the V.A.O has given the report of valuation as early as on 14.10.1998, it is not probable that appellant would have demanded money much later on 27.10.1998. This improbability in the prosecution case is an impediment to draw presumption as to demand.
9. Yet another telling circumstance to observe is that there could be no demand. It could be inferred from the contents in the report Ex.P.13 given by the appellant. After perusing the application and enclosures, the appellant had drafted a report Ex.P.13, as to the valuation, confirming that Ramar, father of P.W.3 has applied for solvency certificate to the value of Rs.10 lakhs and the licenced Engineer has also certified that his properties are worth about Rs.10 lakhs and in his (appellant) view, the property value could be Rs.9,75,000/- and that solvency certificate may be issued to the applicant for Rs.9 lakhs. It is stated in the evidence of P.W.3 in the chief examination and his complaint that Rs.1000/- had to be paid for valuing the property at Rs.1,00,000/- and if it were Rs.10 lakhs Rs.10,000/- should be paid and it was agreed Rs.8000/- had to be paid. If it is so, the appellant would have recommended for solvency to the properties at Rs.10 lakhs or at Rs.8 lakhs but not at Rs.9 lakhs.
10. Another circumstance which would weaken the plea of demand of the prosecution is that P.W.3 during his cross examination turned hostile to prosecution. But of course in chief examination he has come out with the entire episode categorically narrating the trap and other facts but in the cross examination by the prosecution he turned hostile and said that since he could not get the solvency certificate from the taluk office within time, he went to the Anti Corruption Police for giving a complaint. He further says that his driver Muthuramapandian is now in abroad. Except the evidence of P.W.3 there is no supporting evidence to corroborate his version as to the demand.
11. In this context the learned counsel for the appellant placed reliance upon a decision of the Supreme Court reported in 1975 SCC (Cri) 491 [Sita Ram v. The State of Rajasthan] wherein it is held that on mere recovery of money without proof of its payment or on behalf of the person to whom official favour is shown, the presumption cannot arise. It is further held as follows:
"10. The main ingredients of the charge under Section 161 of the Penal Code with reference to the facts of this case are these:
(a) That the accused was a public servant.
(b) That he must be shown to have obtained from any personany gratification.
(c) The gratification should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the person.
When the first two ingredients are proved by evidence then a rebuttable presumption arises in respect of the third ingredient. In absence of the proof of the first two facts, the presumption does not arise. On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise. "
12. In (2006) 13 SCC 305 [V.Venkata Subbarao v. State represented by Inspector of Police A.P.] the Apex Court has held that in the absence of proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:
"20.Presumption where public servant accepts gratification other than legal remuneration.-(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause(a) or clause(b) of sub-section (1) of Section
13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presume, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
The above said proposition has been extracted and dealt with by K.N.Basha,J. in (2011) 1 MLJ (Crl) 173 [R.Damodaran v. State rep.by Inspector of Police, Vigilance and Anti-Corruption, Erode Division, Erode ].
13. In 2010 (3) MLJ (Crl) 279 [G.Kaliaperumal v. State rep by Inspector of Police, Vigilance and Anti Corruption, Pondicherry] S.Nagamuthu,J. has observed that when the prosectuion failed to prove that illegal gratification was demanded by the accused, it is to be held that the initial burden of demand of illegal gratification so as to arise presumption under Section 7 of the Prevention of Corruption Act, 1988, was not made out.
14. In (2010) 3 MLJ (Crl) 132 (SC) [Banarsi Dass v. State of Haryana] the Honourable Supreme Court has held that mere recovery of tainted money from the accused by itself will not constitute the offence in the absence of substantive evidence for demand of money and voluntary acceptance of the same.
15. In the light of the proposition laid down by the Honourable Supreme Court followed by this Court in various Judgments, since the demand of bribe by the appellant in this case has not been proved beyond reasonable doubt, it is held that the demand stands unproved. Though there are materials to show that the tainted money was seized from the appellant, still the theory of demand by the appellant is obscure, the presumption of demand could not be drawn.
16. Further, a careful study of the evidence on record would show that the contradictory versions of prosecution witnesses would improbabilise the theory of prosecution. In the cross examination after turning hostile, P.W.3 would say that since issue of certificate was delayed by the Revenue Official, he preferred complaint to the Vigilance Department and he gave a complaint to that effect. But that complaint is not on record.
17. During the cross examination, P.W.2 would say that P.W.3 alone entered into the office of the accused and he (P.W.2) was standing at the entrance. Even though in the chief examination he says that he also went along with P.W.3 into office of the accused, in cross he says that he was standing at the entrance of the office. Hence, the further demand of accused inside the office to P.W.3 is not spoken by P.W.2.
18. The oral testimony of P.W.9 Trap Laying Officer assumes importance. While he says certain facts in his cross examination, he denied suggestion that the accused was directed by the Tahsildar to collect Flag Day Donations and t he appellant was entrusted with the job of collecting Rs.15,000/- on sale of flags, that he gave half of flags to V.A.O for sale and V.A.O gave him money and the same was possessed by the appellant. P.W.9 was also quizzed that in the above said terms the accused gave explanation, but P.W.9 denies. It is incumbent upon the officer who is organising the trap to enquire the accused immediately after trap and record his statement under Rule 47 of the DVAC Manual. But in this case it is not followed by P.W.9. Rule 47 of DVAC Manual reads as follows:
"47. Questioning of Accused Officer (1) Questioning of the Accused Officer and recovery of the bribe money should be after the phenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer's statement, if any. In this event, the provisions of Section 27 of the Indian Evidence Act would be available to the prosecution.
(2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary under section 162 of the Code of Criminal Procedure, 1973. If there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No.33979/VAC-4/76, dated 10th December, 1976]"
19. The Investigating Officer P.W.10 in his cross examination would say that he recorded statement of the accused on 7.12.1998 and since it was not necessary, he did not send it to the Court. He denies the suggestion that the said statement is the explanation of the accused and hence it was not sent to the Court. When P.W.10 had recorded statement form part of record, it is not produced before the Court. This is the lapse on the par of the prosecution. Had the statement been produced, it might have thrown much light on the real state of affairs of the case.
20. P.W.10 also says that one Headman by name Veluchamy was available in the office of the accused on the date of occurrence and he recorded his statement. But it was not sent to the Court. Further on 16.11.98, he examined Sankaran, Muthu Irulappan, Muthupandi, Raj, Thiruselvam, Chellam and recorded their statements, who said that at the time of trap, they were sitting on the back side of the accused office. But those statements were also not sent to the Court, P.W.10 further adds. The failure on the part of the investigating officer in sending the above said statements to the Court assumes importance since such lapse is taken advantage by the defence.
21. In view of the above,discussion, gained by the settled principles of law, this Court reaches a conclusion that the demand of bribe by the appellant is not proved and even if there were materials to show the seizure of tainted money from the appellant, conviction of the accused could not be recorded. In such a view of this matter, the judgment of conviction passed by the trial Court is liable to be set aside and accordingly it is set aside. The prosecution has failed to establish the charges framed against the accused beyond all reasonable doubt. I answer the point in the negative.
22. In the result, the Criminal Appeal is allowed. The Judgment of conviction passed by the learned Chief Judicial Magistrate, Srivilliputhur is set aside. The fine amount paid by the appellant if any, is ordered to be refunded to him. The disposal of the case properties shall be in accordance with the trial court direction. Bail bond executed by the appellant shall stand cancelled.
ggs To
1. The Chief Metropolitan Magistrate, Srivilliputhur.
2. The Public Prosecutor High Court, Madurai.