Madras High Court
K.Elango vs The Inspector Of Police
Author: G.Jayachandran
Bench: G.Jayachandran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 08.11.2018
DELIVERED ON : 13.11.2018
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)Nos.191 and 193 of 2012
K.Elango : Appellant in
Crl.A(MD)No.191/2012
M.Karunanithi : Appellant in
Crl.A(MD)No.193/2012
Vs.
The Inspector of Police,
Vigilance and Anti Corruption Wing,
Tiruchirappalli.
(Crime No.15 of 2009). : Respondent in
both Crl.As.
COMMON PRAYER: Criminal Appeals are filed under Section 374 of
the Code of Criminal Procedure, against the Judgment and sentence
dated 23.08.2012 passed in Special Case No.130 of 2011 by the
Special Court for Trial of Cases under Prevention of Corruption Act,
Tiruchirappalli.
For Appellant in : Mr.C.Vakeeswaran
in Crl.A(MD)No.191/2012
For Appellant in : Mr.R.Venkatesan
in Crl.A(MD)No.193/2012
http://www.judis.nic.in
2
For Respondent in : Mr.A.Robinson,
both Crl.As. Govt. Advocate (Crl. Side).
COMMON JUDGMENT
The Judgment of conviction and sentence dated 23.08.2012 passed in Special Case No.130 of 2011 by the Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirappalli is being challenged in these Criminal Appeals.
2.These two criminal appeals are preferred by the accused in Special Case No.130 of 2011 on the file of the Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirappalli. The appellant in Crl.A(MD)No.191 of 2012 is the first accused and the appellant in Crl.A(MD)No.193 of 2012 is the second accused.
3.K.Elango (A.1), Village Administrative Officer of Puliyur Village and Karunanidhi (A.2), Village Assistant of the said village were charged for the offences under Section 7 of P.C. Act for demanding Rs.1,500/- from one Smt.Vasuki for mutation of revenue record and change of patta in her name on 30.06.2009. Based on the complaint given by Smt.Vasuki, trap was laid by the Vigilance and Anti Corruption Wing, Tiruchirappalli and pursuant to the trap proceedings on 01.07.2009 at 03.30 p.m., when Elango (A.1) http://www.judis.nic.in 3 demanded and received Rs.1,500/- from Smt.Vasuki through Karunanidhi (A.2), Village Assistant, he was got red-handed. Hence, A.1 was charged for the offence under Section 13(2) read with 13(1)(d) of P.C. Act and A.2 was charged for the offence under Section 12 of P.C. Act.
4.To prove the charges, the prosecution has examined 9 witnesses and marked 22 exhibits and 4 material objects.
5.The Trial Court convicted A.1 for the offences under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act and sentenced to undergo 1 year rigorous imprisonment and to pay fine of Rs.2,500/- in default to undergo one month simple imprisonment for the offence under Section 7 of P.C. Act and also sentenced him to undergo 3 years rigorous imprisonment and to pay fine of Rs. 5,000/- in default to undergo 3 months simple imprisonment for the offence under Section 13(2) read with 13(1)(d) of P.C. Act. The period of sentence was ordered to run concurrently.
6.As against A.2, the Trial Court found that the prosecution has not proved demand of illegal gratification by A.2 and hence acquitted him from the charge under Section 7 of P.C. Act and found http://www.judis.nic.in 4 him guilty under Section 12 of P.C. Act and sentenced him to undergo 9 months rigorous imprisonment and to pay fine of Rs.1,000/- in default to undergo 1 month simple imprisonment.
7.During the trap proceedings, apart from the tainted currency of Rs.1,500/-, a further sum of Rs.2,000/- from A.1 and a sum of Rs.11,600/- from A.2, were seized. Since they were not able to account for the possession of the said money, the Trial Court ordered to return the said money to the respective accused after the appeal period.
8.Aggrieved by the conviction and sentence, the above criminal appeals are preferred. Since both the appeals arising out of one and the same Judgment made in Special Case No.130 of 2011 on the file of the Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirappalli, by consent of both the parties, both appeals are heard together and common Judgment is passed.
9.BRIEF FACTS LEADING TO THE APPEAL:
(i)Smt.Vasuki purchased a vacant house site at Vallalar Nagar, Puliyur on 28.04.2008 and got it duly registered at Sub Registrar's Office, Karur. For change of patta, she gave a request to http://www.judis.nic.in 5 Jamabandhi held during the month of June at Karur Taluk Office.
She was advised to meet the Village Administrative Officer after one week.
(ii)As per the advise, on 26.06.2009, she met Elango (A.1), who was in-charge of Puliyur Village and enquired about her request for patta transfer. He told Smt.Vasuki to meet him on 30.06.2009 at the Office of Village Administrative Officer, Puliyur Village. Accordingly, on 30.06.2009, at about 12.00 noon, she went to the V.A.O. Office, Puliyur. Karunanidhi (A.2), Village Assistant, who was at the entrance of the office of the V.A.O. Office, called her and enquired about her visit to the V.A.O. Office. When she told him that she has come for getting the patta transferred in her name, he demanded Rs.1,500/- as bribe to arrange for the name transfer. She therefore met Elango, Village Administrative Officer. A.2 followed her and stood next to her. When she enquired Elango about the patta transfer application, the Village Administrative Officer also reiterated the demand of Rs.1,500/- as bribe to arrange patta transfer. When she expressed her inability to pay bribe, Elango (A.1) told her that without money, nothing will happen and already he has reduced the bribe amount by Rs.500/- and demanding only Rs.1,500/-, whereas others will demand Rs.2,000/-. Since Smt.Vasuki (P.W.3) was not an educated lady http://www.judis.nic.in 6 capable of reading and writing, her oral complaint was recorded by the Inspector of Police in the computer through Mr.Saravanan, Grade I Police Constable.
(iii)Pursuant to the complaint, after making preliminary enquiry, Mr.Prasanna Venkatesh (P.W.8), Inspector of Police, arranged for two witnesses by name Devaki (P.W.4), Junior Assistant, Labour Department and Suseela, Junior Assistant, Cooperative Audit Department to be present on the day of trap. Before proceeding to the V.A.O. Office, Puliyur Village, the significance of sodium carbonate-phenolphthalein test was demonstrated to the witnesses. Trap money of Rs.1,500/- [3 x 500] was smeared with phenolphthalein and entrusted to Smt.Vasuki (de facto complainant) with instruction that she should give the money, when the accused demands the same. Entrustment mahazar (Ex.P.4) was prepared at Vigilance and Anti Corroborate Wing Office, Tiruchirappalli on 01.07.2009 between 10.00 a.m. to 10.45 a.m.
(iv)The de facto complainant, Smt.Vasuki (P.W.3) and the shadow witness, Devaki (P.W.4) reached the V.A.O. Office, Puliyur at about 03.30 p.m. The trap team led by Mr.Prasanna Venkatesh (P.W.8), Inspector of Police followed them and took position outside the V.A.O. Office.
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(v)The Village Administrative Officer after ascertaining she has come for patta transfer and brought the money demanded, instructed A.2 to receive the bribe money of Rs.1,500/-. The de facto complainant handed over the money to the Village Assistant (A.2) on the instruction of the Village Administrative Officer (A.1). A.2 counted the money and kept the currencies in a long size Ruby notebook, which is marked as Ex.P.6. Thereafter, P.W.3 along with P.W.4 came out from the V.A.O. Office and gave the prearranged signal to the trap team.
(vi)P.W.8 along with his trap team went in the V.A.O. Office and introduced himself to the accused. Sodium carbonate solution was prepared and A.2 was asked to dip his fingers. The solution colour turned into pink. The sample solutions were collected in two different bottles. The remnant sample solution returned from laboratory is marked as M.O.2 and M.O.3. The tainted currency (3 x 500) has been marked as M.O.1. The Ruby note book in which the tainted currency was kept by A.2 was also subjected to sodium carbonate test and the sample solution collected separately in a bottle. The bottle containing remnant sample received from laboratory is marked as M.O.4. Recovery mahazar was prepared for seizure of tainted currency and sample solutions. http://www.judis.nic.in 8
(vii)A sum of Rs.2000/- found in possession of A.1, was recovered, since A.1 was not able to explain the source of that money. Search of A.2 resulted in recovery of Rs.11,600/- and source of which could not be explained by A.2.
(viii)After recording the statements of the witnesses, sanction to prosecute A.1 and A.2 was obtained and final report was laid. The sanction order to prosecute A.1 is marked as Ex.P.1 and the same is spoken by P.W.1 who has issued the sanction order. The sanction to prosecute A.2 is marked as Ex.P.2 and spoken by P.W.2, who has accorded sanction to prosecute A.2.
(ix)The Trial Court taking into consideration the deposition of P.W.3, Smt.Vasuki (de facto complainant) and Devaki (P.W.4), the witness who accompanied P.W.3 during the trap, has held that A.1 on seeing P.W.3 demanded Rs.1,500/- for patta transfer, A.2 told her that she could give this money yesterday itself and thereafter received the money from P.W.3 on the instruction of A.1 and kept it in a notebook. This evidence is corroborated by Devaki (P.W.4) and the prosecution has proved the demand, acceptance and recovery of tainted money, which is the bribe money demanded by A.1 and received by A.2, through the prosecution witnesses.
(x)Relying upon the Judgments of the Hon'ble Supreme Court and High Courts, the Trial Court held that the evidence of P.W.4 is http://www.judis.nic.in 9 reliable and she has no personal interest in the prosecution case or grudge against the accused persons to depose falsely and hence, her evidence which corroborates the material particulars, such as demand of A.1, acceptance of tainted money by A.2 and the recovery of the tainted money from Ruby Notebook, leads to presumption that the money recovered from the accused persons was pursuant to the illegal demand of gratification as a motive for processing the patta transfer application.
(xi)The Trial Court has also pointed out that the defence has not come out with any explanation as to what purpose the tainted money was received by A.1 through A.2 and has concluded that A.1 demanded illegal gratification on 30.06.2009 and reiterated the same on 01.07.2009. A.2 accepted the bribe money on 01.07.2009 on the instruction of A.1 and kept the money in the Ruby Notebook (Ex.P.6). Holding that A.2 has not demanded any bribe for himself either on 30.06.2009 or on 01.07.2009, the Trial Court has acquitted A.2 from the charge under Section 7 of P.C. Act, however convicted him for charge under Section 12 of P.C. Act for abetting A.1.
10.Contentions of the appellants:
The learned counsel appearing for the first accused/appellant in Crl.A(MD)No.191 of 2012 would submit that the evidence of P.W.4 http://www.judis.nic.in 10 is totally unreliable. The contradiction in her deposition leads the evidence of P.W.3 (de facto complainant) uncorroborated with regard to demand of gratification by A.1. Further, the learned counsel would submit that P.W.4 in her evidence during the cross- examination admits that there were two other persons at the time of trap, whereas the trap laying officer denies the presence of those two witnesses and there is no reference about their presence either in the mahazar or any other record.
11.The learned counsel appearing for A.1 would further submit that the case of the prosecution even according to the complaint (Ex.P.3), is that when P.W.3 went to the Taluk Office on 30.06.2009, it was the second accused who demanded bribe and only thereafter the complainant met A.1 and the alleged demand of Rs.1,500/- made by A.1 also. On the day of trap, it was A.2 who received the money from P.W.3, counted it and kept in Ruby long size notebook. Though the notebook was recovered and marked as Ex.P.6, the said notebook was not sent for chemical analysis. Further, the analyst who conducted the chemical analysis has not been examined by the prosecution. While the evidence of P.W.3 as against this accused does find any corroborative evidence, this accused has to be acquitted.
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12.The learned counsel appearing for A.1 would also submit that when A.1 has not made any demand and also not received the money, the charges against him ought to have been held not proved by the Trial Court. The evidence of P.W.3, P.W.4, P.W.8 and P.W.9 are not reliable due to contradictions. It is contended by the learned counsel that the Trial Court has failed to consider Ex.P.13, which is the communication to the Tahsildar made by A.1 recommending issuance of patta to the de facto complainant as early on 26.06.2009 itself. While so, the allegation that for issuance of patta, he made demand of Rs.1,500/- on 30.06.2009, proved to be a false allegation. The trap laying officer admits that he requested the higher officials of P.W.4 and the other official witness Suseela to be present at Vigilance Office on 01.07.2009. No document is produced to that effect either by the trap laying officer or P.W.4. The non-examination of the other official witness Suseela also creates doubt in the absence of document requesting the higher officials of Suseela to report before the trap laying officer.
13.The learned counsel appearing for A.2/appellant in Crl.A(MD)No.193 of 2012 would submit that the Trial Court has failed to see that the accompanying trap witness is not a reliable witness and her deposition is very suspicious about her presence http://www.judis.nic.in 12 during the alleged occurrence. The Trial Court having held that the prosecution has not proved the demand to attract Section 7 of P.C. Act, ought to have held that no case is made out against this appellant to convict him under Section 12 of P.C. Act. Mere recovery of money in a notebook kept on the table of A.1 and the presence of phenolphthalein in the hands of A.2, will not be a reason to presume that A.2 received Rs.1,500/- from P.W.3 and abetted A.1 for committing offence under Section 13(2) read with 13(1)(d) of P.C. Act.
14.Contentions of the learned Government Advocate (Criminal side):
The learned Government Advocate (Criminal side) would submit that the prosecution has proved all the required ingredients to convict the appellants for the offences under Sections 7, 13(2) read with 13(1)(d) and 12 of P.C. Act. The de facto complainant (P.W.3) had in her deposition clearly narrated the demand of illegal gratification by A.1 and A.2 on 30.06.2009 and receipt of the tainted money by A.2 on 01.07.2009 on the instruction of A.1. On the date of trap when the de facto complainant met the accused persons, they have demanded money for transfer of name, but also sarcastically remarked that she could have given the money on the http://www.judis.nic.in 13 previous day itself without making much pause. The natural way of P.W.3 deposed before the Court and she being stood the incised cross-examination of the defence lawyer, is very much inspiring about the truthfulness. The evidence of P.W.4, who has witnessed the entire trap proceedings corroborates the substantial materials, which are required to prove the guilt of the accused.
15.The learned Government Advocate (Criminal side) in response to the contention raised by the learned counsels appearing for the appellants would also submit that the non-examination of the other independent witness Suseela or the chemical analyst who has given the report (Ex.P.22) cannot be a ground to suspect the case of the prosecution, since one of the independent witnesses accompanied the trap, namely, Devaki has been examined as P.W.4 and so far as the chemical analysis report is concerned, it has been marked through the investigating officer, since the chemical analysis report being issued by the Government Scientific Expert forwarded directly to the Court after conducting the analysis, no formal proof of the same by examining the author. is required.
16.The learned Government Advocate (Criminal side) would further submit that Devaki (P.W.4), a Junior Assistant in Education http://www.judis.nic.in 14 Department and a graduate has no axe to grind against the accused persons. Being a responsible citizen had reported before the trap laying officer on the instruction of her higher official. Non- production of the letter need not be a reason to suspect the very presence of P.W.4 during the trap proceedings. Her descriptive deposition about the entire trap proceedings and consistency in her deposition indicating A.1 for demand and A.2 for acceptance of the illegal gratification, would suffice to hold both the accused guilty.
17.Point for consideration:
“Whether the Trial Court has properly appreciated the evidence placed before it to hold the accused guilty?”
18.Smt.Vasuki (P.W.3) is the de facto complainant. In her complaint, she has mentioned about both the accused as persons have demanded bribe of Rs.1,500/- for processing her application for change of patta. The learned counsel appearing for the appellants doubted the swiftness of the trap laying officer to act upon the complaint given by P.W.3 on 30.06.2009 between 17.00 hours and 17.30 hours, since no written document requesting the witnesses Devaki and Suseela has been produced by the prosecution.
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19.It is contended that the complaint which was registered during the late evening of 30.06.2009, has led to pre-trap proceedings which commenced at 10.00 a.m. on 01.07.2009. Devaki (P.W.4) has deposed that on 01.07.2009 at 09.00 a.m., her senior officer instructed her to report before the trap laying officer at Vigilance Office and accordingly, she went to the Vigilance Office. In the said circumstances, there is no reason to doubt the presence of P.W.4 on 01.07.2009 at Vigilance Office, when entrustment mahazar (Ex.P.4) was prepared or her presence during the trap and recovery mahazar. The deposition of P.W.4 is cogent and convincing in respect of the demand made by A.1 and receipt of the same by A.2 on the instruction of A.1. She has specifically deposed that A.1 demanded Rs.1,500/- for processing her application for change of patta and she had heard it. She has also deposed that A.2 sarcastically told P.W.3 that she could have given the money the day before itself without pleading excuse that she does not have enough wherewithal to pay bribe of Rs.1,500/-. She has deposed that A.2 received money, counted it and kept it inside the Ruby notebook found on the table. A.1 has assured that he will oblige to get the patta by Monday. The said money of Rs.1,500/- which was entrusted to P.W.3 was later recovered from the notebook on identification by A.2.
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20.The Ruby notebook has not been sent for chemical analysis, but the wash collected on the notebook was forwarded for chemical analysis and found positive of phenolphthalein. While the prosecution could able to establish the fact that M.O.1 series [Three 500 rupee currencies], which was entrusted to P.W.3 at Vigilance Office, Tiruchirappalli under the entrustment mahazar (Ex.P.4) found in the notebook (Ex.P.6) and the evidence of P.W.3 and P.W.4 proved that the said money entrusted to P.W.3 and received by A.2, counted the money and thereafter kept the money in the notebook and further the evidence of P.W.3 and P.W.4 would prove the fact that A.2 received the money on the instruction of A.1. Neither A.1 nor A.2 had come out with any explanation to probabilise the money was not tendered by P.W.3 or the money was not received by A.2 as illegal gratification.
21.To add, both A.1 and A.2 had in their possession a sum of Rs.2,000/- and Rs.11,600/- respectively for which they were not able to account for. More particularly, Rs.11,600/- recovered from A.2 was kept by him in his underwear left side pocket as different lots. Likewise, A.1 in his inner shirt pocket had Rs.2,000/-. No proper explanation has been given by both the accused towards the source of these income. Since the prosecution could not establish http://www.judis.nic.in 17 that these currencies are obtained towards illegal gratification, the Trial Court has rightly ordered return of money to the accused persons. However, as far as M.O.1 series [Rs.1,500/-] is concerned, it is a clear case of prosecution and well proved through its witnesses that this money was received by A.1 through A.2 as a motive to process the patta transfer application.
22.Pointing out Ex.P.13 wherein the Zonal Deputy Tahsildar has prepared a draft order based on the recommendation of A.1 for transfer of patta, it is contended by the learned counsels for the appellants that even before the alleged date of demand, i.e., 30.06.2009 and the alleged date of trap, i.e., 01.07.2009, the application of the de facto complainant (P.W.3) has been processed and was likely to be issued. This defence does not carry any merit, since Ex.P.13, the proceedings of the Zonal Deputy Tahsildar does not bear any date or signature. The recommendation of A.1 for transfer of patta also does not bear any date. Therefore, it could be inferred that expecting gratification other than legal remuneration, A.1 has not communicated the order to Smt.Vasuki (P.W.3). The modus operandi of A.1 could be seen from the records created by him and relied by him.
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23.For the property purchased on 13.06.2008, the de facto complainant has given application for patta transfer along with all the requisite documents. Despite that, even after preparing the draft order, patta was not officially transferred and communicated to the de facto complainant. Thus, the modus operandi of A.1 and A.2 is seen palpable through Ex.P.13 series.
24.One of the points raised by the learned counsel appearing for the appellants is that P.W.4 has deposed in her cross- examination that at the time of trap in the V.A.O. Office, she saw a old man and a young boy and they were not shown as witnesses. Therefore, the case of the prosecution is to be doubted.
25.Even if two strangers were in the V.A.O. Office during the trap proceedings, non-inclusion of them as witnesses, cannot be a reason to doubt the case of the prosecution. In a public office, one cannot expect that except the trap team, there will not be any other public. Whether the public witnessed the trap proceedings and whether they will be worth reliable, all depends upon the factual situation and discretion of the trap laying officer. http://www.judis.nic.in 19
26.In this case, the prosecution could establish the case of demand of illegal gratification and receipt of the same through respectable independent witness. The depositions of P.W.3 and P.W.4 would corroborate each other without any contradiction or blemish. In the said circumstances, none of the defence stands legal scrutiny worth appreciation. Therefore, these appeals are liable to be dismissed.
27.In the result, these Criminal Appeals are dismissed and the Judgment of conviction and sentence dated 23.08.2012 passed in Special Case No.130 of 2011 by the Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirappalli is confirmed. The Trial Court is directed to secure the appellants/A.1 and A.2 and commit them to prison to undergo the remaining period of sentence. The bail bonds if any executed by the appellants/A.1 and A.2 shall stand cancelled.
13.11.2018
Index : Yes/No
Internet : Yes/No
smn
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To
1.The Special Judge,
Special Court for Trial of Cases under
Prevention of Corruption Act,
Tiruchirappalli.
2.The Inspector of Police,
Vigilance and Anti Corruption Wing,
Tiruchirappalli.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
smn
COMMON JUDGMENT MADE IN
Crl.A(MD)Nos.191 and 193 of 2012
13.11.2018
http://www.judis.nic.in