Madras High Court
S.Sasikala vs State on 16 December, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.12.2015 CORAM THE HON'BLE MRS.JUSTICE S.VIMALA Criminal Appeal (MD) No.260 of 2013 S.Sasikala ... Appellant / Accused Vs. State, Rep. By, The Inspector of Police, Vigilance and Anti-Corruption Wing, Tiruchirappalli (Crime No.3 of 2011) ... Respondent/Complainant PRAYER: Criminal Appeal is filed under Section 374(2) Cr.P.C., as against the judgment passed by the Special Court for Trial of Cases, Tiruchirappalli District, under the Prevention of Corruption Act, in Special Case No.81 of 2012, dated 31.07.2013. !For Appellant : Mr. V.Kathirvelu, Sr. Counsel, for, Mr. K.Prabhu ^For Respondent : Mr. P.Kandasamy, Govt. Advocate (Crl. Side) :J U D G M E N T
The appellant / accused was found guilty: (a) under Sections 7 of the Prevention of Corruption Act, 1988, (hereinafter referred to as ?the Act?) and was sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.5000/-, in default, to undergo Simple Imprisonment for one month; and (b) under Section 13(2) read with 13(1)(d) of the Act and was sentenced to under to Rigorous Imprisonment for two years and to pay a fine of Rs.5000/-, in default, to undergo Simple Imprisonment for three months.
2. The sum and substance of the allegation against the accused is that the accused / appellant was functioning as the Sub-Registrar in the Office of the Sub-Registrar, Woraiyur, Trichy and thus, she is a Public Servant. She is stated to have demanded a sum of Rs.20,000/- from the defacto complainant, N.Rajeshkanna, in order to deliver two sale deeds and accordingly, she received Rs.20,000/-, as gratification, other than legal remuneration, for doing the official act of delivering the two sale deeds.
Facts in detail:
3. P.W.1 / Rajesh Kanna is engaged in doing Real Estate business along with Subramani and Ramasamy. He was also the Power Agent of five persons to deal with the properties at Panthamangalam Village, Woraiyur, Trichy Taluk. The defacto complainant divided the lands into 30 plots and obtained approval from Town and Country Planning Authorities. He entered into a negotiation to sell the plots to one Adilakshmi of Panaiyur and Jeyakumar of Polichalur, each for a sum of Rs.2,62,675/-. He met the accused, at the Office of the Sub-Registrar and enquired about the value for registration of documents. The accused informed him regarding the requirements. P.W.1 went to the Office of the Sub-Registrar, on 24.01.2011, at 10.30 a.m., and along with him, the intending purchasers, namely, Jeyakumar, Adilakshmi and P.W.4 / Subramaniam also went. They paid the registration charges. After registration, they came out of the Office. Thereafter, at about 01.00 p.m., P.W.1 enquired as to the time at which the documents will be released, for which, the accused told him that he has to pay a sum Rs.20,000/-, as bribe. On refusal by the defacto complainant, the accused told him that she would not release the documents. Unwilling to pay the amount, P.W.1 went to the Vigilance and Anti Corruption Wing, on 25.01.2011, met the Inspector of Police and lodged the complaint under Ex.P1. A case was registered, after preliminary enquiry, in Crime No.3/2011 under Section 7 of the Act.
4. The case of the defence is that the accused neither demanded money nor received money. The documents (sale deeds) were pertaining to agricultural lands, which were later on divided as house sites, before selling. Consideration of documents like F.M.B., Topo-sketch and E.C., are essential in order to decide the value of the property for the purpose of registration. At the time of registration, P.W.1 was instructed to bring those documents.
4.1. On 25.01.2011, when the accused was reading the files, the defacto complainant came to the table of the accused saying that, he has got FMB and Topo-sketch. As the accused was busy in reading, she asked P.W.1 to leave it at her table. At that point of time, the Police Officials from the Vigilance and Anti Corruption enquired about the papers, which were on the table. At their instruction, it was opened and it was found that there were twenty numbers of thousand rupee notes. On account of intimidation, out of fear, the accused took and counted the notes by using both the hands. She was asked to plunge her hands into the water. Thus, the accused was made as a scapegoat in the trap laid by the prosecution.
4.2. A perusal of the complaint would reveal that P.W.1 met the accused twice, on the same day, i.e., one at 12.30 pm (mid-day) and another at about 01:00 pm. It is alleged that, only at the time when P.W.1 met the accused, for the second time, it is stated that she demanded Rs.20,000/- for the purpose of releasing the documents. It is also alleged that the accused threatened saying that, if the amount is not paid, she would increase the value of the stamps and she would ensure that P.W.1 would not get the return of the documents. Thus, the accused is stated to have obtained the bribe of Rs.20,000/-.
5. Whether this contention is probable and acceptable is the issue to be considered.
6. So far as the value of the property is concerned, the Sub-Registrar can only impound the document and send it to the Special Deputy Collector, Stamps, for the purpose of determining the value of the property. It is pertinent to point out that the allegation of demand is not made before or at the time of registration and this allegation is made after the registration is over and before the documents are returned. Had there been a demand, the probability is that, it could have been made, only just before registration, so that the parties, who are interested in registration, are likely to pay whatever is demanded. In other words, when there is no demand at the time of registration, it is unlikely that the same would have been demanded by saying that unless demand is satisfied, she would enhance the value of the property, thereby compelling him to pay more stamp duty.
6.1. Even assuming that she can make use of the documents for the purpose of sending a report to the Deputy Collector (Stamps), the person who is authorised to get the document returned is the purchaser and not the seller. There may be cases in which the purchaser might have authorised the seller to get the document, which is an extremely risky affair. Still, it is open to the purchasers to come and say as to whether they have authorised the seller to get back the original documents. In this case, even though there are two purchasers, nobody has been examined. There is no explanation as to why they were not examined before the Trial Court. When the witnesses, who were not examined, were the most competent witnesses to speak about the occurrence and when they are withheld, the inference is that the prosecution is not willing to disclose the truth of the matter. It is appropriate to point out that the demand for bribe would have been made to the purchasers and not to the seller, because the seller would not be interested in paying the bribe.
6.2. It is pointed out by the learned counsel for the prosecution that, as per the evidence of P.W.4-Subramanian, there is an oral agreement between the co-executant and P.W.1 to the effect that all related works with regard to the registration of documents will be carried out by P.W.1.
6.3. From the evidence, it appears that the properties of P.W.1, P.W.4 and some five others have been jointly put into a layout and it has been sold. Therefore, P.W.4 would be the interested witness to support the case of P.W.1. The purchasers are the persons who are competent to say to whom the work relating to registration was entrusted to. But they have not been examined. Even assuming that P.W.1 was entrusted to do some kind of preliminary works, that would not enable him to do works, which are legally not permissible. The documents can be returned, after registration, only to the purchasers and not to the seller. This aspect has been wrongly understood by the Court below. Even though enquiries can be made by anybody, documents can be returned only to the persons authorised by the law and rules.
7. The next issue to be considered is, what is the value of the evidence with regard to the alleged recovery of Rs.20,000/-, said to have been effected from the office drawer of the accused.
7.1. While recording the evidence, the accused has stated that she never refused the return of the document; the document was numbered as 1474 as on the date of the registration of the document; on that date, 77 documents were registered; the document was not presented by P.W.1- Rajeshkanna nor did he paid the registration charges; hence, as per The Registration Act, Part-II, 585 (b) (i), if the Presentant of documents is alive, the documents shall not returned to the claimant without the Presentant's consent.
7.2. It is further stated that P.W.1 came along with one Murali, at about 04.00 pm, saying that they have brought FMB and Topo-sketch and on account of work pressure, she directed them to place the documents, (which had been placed in a cover) on the table and accordingly, they did it and later on, the Police Officials came and on intimidation, she was forced to do, in accordance with their directions. This is how, the recovery has been explained by the defence. Therefore, it is not a case of complete denial of the recovery, but the alleged recovery is qualified by the statement that the money was removed from the table and not recovered from her. The defence appears to be probable because of the fact that there had been registration of 77 documents on a single day. Under such circumstances, it is probable that the accused might have asked them to leave the documents, so that she can attend to it later.
7.3. In any event, the phenolphthalein test and the consequent recovery will not be helpful in the absence of convincing proof regarding demand and acceptance. Further, phenolphthalein test was not conducted (as admitted by the Investigating Officer) in the table drawer and shirt pocket of the defacto complainant (where it was alleged to have been placed originally). Moreover, the suggestion that the documents, Topo sketch and FMB were recovered, but not produced, only for the purpose of escaping from the omission, in not subjecting those two documents for phenolphthalein test and it also requires serious consideration, in the absence of any explanation from the prosecution.
8. The main defence of the accused is that, this prosecution has been launched falsely at the instigation of one Murali, (who was a Real Estate Agent), who was hand-in-glove with the Deputy Superintendent of Police and the DSP himself. According to the defence, the accused was a nightmare for the Real Estate Brokers, who were working in the field of Real Estate and often bringing documents expecting registration by violating and relaxing rules. As the accused did not oblige those Real Estate People, they wanted to get rid of the accused and that is why, the false prosecution has been launched.
9. When it was suggested to P.W.11, the Investigating Officer, that the entire episode, after prosecution, was created and conducted only at the instigation of Deputy Superintendent of Police, (at the behest of Murali) he has denied the same. But, P.W.6, the Junior Assistant of the Registrar's Office would admit that the Deputy Superintendent of Police was very much present, on the date when the accused was arrested and only after the Deputy Superintendent of Police, arriving at the Registrar's Office, she was taken into custody.
10. P.W.6 the Junior Assistant has stated in his evidence that the Deputy Superintendent of Police, was present, at the scene of occurrence. There is no reason as to why his presence should be suppressed by the witnesses, if really he is not involved in the occurrence. This denial on the part of the Investigating Officer, P.W.11, about the involvement of the Deputy Superintendent of Police, at the behest of Murali, would only reflect the guilty mind and the view operating in the mind of the Investigating Officer that if his presence is admitted, that would probablize the case of the defence. Therefore, the case of the defence appears to be more probable than the case of the prosecution.
11. The law gives discretion to the Court to presume the existence of any fact, which it thinks likely to have happened having regard to common course of human conduct. So far as this case is concerned, when the accused has offered an explanation for the circumstances under which money was brought on her table without her demand / knowledge and in the absence of likelihood of any demand to have been made from P.W.1, the probability is that the occurrence should have taken place in the manner as alleged by the defence and not as alleged by the prosecution. In any event, the defence has rebutted the presumption by way of probability and plausibility.
12. It is the case of the defence that the accused herein is a strict officer, adhering to the Rules strictly and the defacto complainant, being a person, prejudiced by the strictness, created an opportunity to trap the accused and that is how the accused has become the scapegoat.
13. The non-examination of the material witnesses, namely, either of the purchasers, coupled with the totally contradictory evidence of P.W.1 and the admissions made by the Investigating Officer with regard to the omission and commission made during investigation, would go to show that the defence is more probable than the case of the prosecution.
14. P.W.1 has stated in his cross-examination that when he had gone inside the Registrar's Office to get back the document, he did not bring the Purchasers. He did not explain the reasons as to why the Purchasers were not brought along with him. Even though he has stated that he has informed the Purchasers regarding the demand made, still the Purchasers were not examined. P.W.1 has accepted the fact that the accused informed the purchasers that they have to produce FMB and topo-sketch. Therefore, in all probability, when P.W.1 informed the Sub-Registrar that he had brought the documents, she would have permitted the documents to be placed on the table. It is also an admitted fact that those documents bear an endorsement that those documents require estimation of value of the property. There is a vital admission that 21 days is available for return of the documents. There is also an admission that the Registration Receipts and Receipts for payment of charges of sub- division do not stand in the name of P.W.1. Therefore, P.W.1 would not have any role in getting the documents returned.
15. It is the case of the prosecution that the accused demanded bribe only towards returning of the document. According to Ex.P-14, the documents were ready for delivery only 07.02.2011. The documents, at the time of occurrence, were not even scanned. Only after scanning of the documents, copies would be furnished to the parties and only at that time of delivery, there is a probability of the accused making a demand for bribe. These circumstances would create a doubt as to the genuineness of the prosecution case that the accused demanded bribe towards returning of the documents.
16. P.W.1 has gone to the extent of denying that it is only the person, in whose name the documents stand alone can get back the documents. No prudent purchaser will be ever willing to permit the seller to get the document, unless the purchaser expressly authorises the seller to get it, on account of some fiduciary relationship. It is neither the case of P.W.1 that he was authorised by the purchasers to get the document nor he stands in any fiduciary relationship with the purchasers and it is nor his case that when the documents do not stand in his name, which would authorise him to get back the documents, stood in his name.
17. When it is suggested to him, whether there was a compulsion to register the documents in the absence of patta and whether there was a compulsion to reduce the guideline value in the Office of the Sub-Registrar, Woraiyur, he has stated that he did not know anything about the same. The non-denial of those occurrences, coupled with the non-examination of the purchasers and the untrustworthy and unreliable evidence of P.W.1, cumulatively would go to show that there is a possibility of the case being foisted against the accused, on account of her strictness in the discharge of her official duties.
18. For the aforesaid reasons, the judgment, passed by the Special Court for Trial of Cases, Tiruchirappalli District, in Special Case No.81 of 2012, dated 31.07.2013, is hereby set-aside and this Criminal Appeal is allowed. The accused is acquitted of all the charges framed against her. The fine amount, if any, paid by her shall be refunded to her. The bail bonds of the accused, if any, shall stand discharged. Consequently, the connected MP is closed.
To
1. The Special Court for Trial of Cases, Tiruchirappalli District
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .