Madras High Court
R.Sethuraman vs State Represented By on 30 November, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 16.11.2018
JUDGMENT PRONOUNCED ON : 30.11.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No.19 of 2010
R.Sethuraman ...Appellant/Accused
Vs.
State represented by
The Inspector of Police,
Central Bureau of Investigation,
Special Police Establishment,
Anti Corruption Branch,
Shastri Bhavan,
3rd Floor, Haddows Road,
Chennai.
...Respondent/complainant
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to call for the entire records pertaining to CC No.12
of 2007 on the file of the learned Special Judge for CBI Cases,
Madurai and allow this appeal preferred by the Appellant and set
aside the order of conviction imposed by the learned Special Judge
for CBI Cases, Madurai vide order dated 11.01.2010 in CC No.12 of
2007 arising out of RC No.22A of 2007.
For Appellant : Mr.K.Velusamy
For Respondent : Mr.Ashok Kumar Gowtham
Special Public Prosecutor for CBI Cases
http://www.judis.nic.in
2
JUDGMENT
The criminal appeal has been filed seeking to set aside the order of conviction imposed by the learned Special Judge for CBI Cases, Madurai by order dated 11.01.2010 in CC No.12 of 2007.
2.The case of the prosecution is that on 08.05.2007 one Nagarajan, de facto complainant, who was working as a Keyman in Kudikadu Gang / Section (N-2KXO), Thiruvarur had preferred a complaint with the Superintendent of Police, CBI, ACB, Chennai against the appellant alleging that the appellant demanded bribe as a motive for recommending his transfer request to higher authority and that he had submitted transfer request petition on 22.09.2006 to the appellant through Secretary, SRMU Thiruvarur and after the advice of the Assistant Divisional Engineer, Thiruvarur, he had to serve at Kudikadu as Keyman for sometime.
3.The de facto complainant had joined as a Keyman at Kudikadu on 07.10.2006. After serving for nearly six months at Kudikadu Gang, on 07.05.2007, at about 8.15 pm, he met the appellant at his office and requested to recommend his transfer application for Mariyamman Kovil Gang. The appellant by misusing his official position as a Section Engineer, demanded illegal http://www.judis.nic.in gratification of Rs.2,000/- as motive for recommending his transfer 3 request to the higher authorities. As the de facto complainant had expressed his inability to pay Rs.2,000/,- the demand was reduced into Rs.1,000/- by the appellant and laid condition to the de facto complainant to pay the money by 08.05.2017, otherwise to continue to work in Kudikadu Gang for rest of his service. On 07.05.2007 at about 8.15 pm, since the de facto complainant was unwilling to pay Rs.1,000/- as bribe to the appellant, he made a complaint to the Superintendent of Police, who in turn directed the de facto complainant to meet the Inspector Thalaimani, the Trap Laying Officer at Thiruvarur and lodge a complaint to him and he would take care of the matter and proceed in accordance with law. On 07.05.2007, the CBI Officer had arranged to trap the appellant and that on 08.05.2007 at about 6.00pm, the appellant is alleged to have demanded the illegal gratification of Rs.1,000/- at his residence from the de facto complainant in the presence of the shadow witness and the appellant was caught red handed by the Trap Laying Officer, while demanding and accepting the said illegal gratification of Rs.1,000/-. The phenolphthalein test conducted by the Tamil Nadu Forensic Laboratory also proved positive. After completing the investigation, the respondent Police laid a charge sheet before the Special Court for CBI Cases, Madurai. The charge sheet was taken on file in CC No.12 of 2007 on the file of the Special Court and after completion of the procedural http://www.judis.nic.in formalities, the Special Judge framed charge against the appellant 4 for the offence under Section 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
4.In order to prove the case of the prosecution, during the trial the prosecution examined 10 witnesses as PW.1 to PW.10 and marked 46 documents as Ex.P.1 to Ex.P.46 and 5 material objects were exhibited as MO.1 to MO.5. After completing the prosecution evidence, the incriminating evidence culled out from the prosecution witnesses have been put forth before the appellant and was questioned under Section 313 of CrPC. The appellant denied them as false evidence and on the side of the appellant 5 witnesses were examined as DW.1 to D.W.5 and 10 documents were marked as ExD.1 to ExD.10.
5.After hearing the arguments on both sides and also considering the materials placed before the Special Court, the trial Court found the appellant guilty and convicted the appellant and sentenced him to undergo rigourous imprisonment for a period of one year and imposed a fine of Rs.1,000/- and in default to undergo rigourous imprisonment for a period of two months for having committed the offence under Section 7 of the Act and convicted and sentenced him to undergo rigorous imprisonment for a period of one year and imposed a fine of Rs.1,000/-, in default to undergo http://www.judis.nic.in rigorous imprisonment for a period of two months for having 5 committed the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
6.Aggrieved against the judgment of conviction and sentence imposed by the Special Court, the convict has preferred the present appeal before this Court.
7.The learned Counsel for the appellant would submit that prior to the date of occurrence, the appellant was neither at his residence nor at his office, but he was on other duty away from Thiruvarur and came to Thiruvarur on 07.05.2007 only at 9.30 pm. Therefore it was not possible to meet the PW.3 on 07.05.2007 and demand money on that day. In order to prove it, he had marked Ex.D.6 the weekly diary of the appellant. Further, there is a material contradiction between, PW.3, the de facto complainant, PW.4 the shadow witness and PW.7 the Trap Laying Officer. The place of occurrence, demand and acceptance and recovery themselves are doubtful. PW.3 stated that the place of occurrence as residence, where as PW.1 sated as Office. This itself creates suspicion, as to where the appellant demanded bribe at his residence or at office. Further the time of occurrence is said to be 8.30 pm and it is not possible for the appellant to stay in the office at that time. Further he is not the authority to make transfers. Therefore, no demand by http://www.judis.nic.in the appellant for the transfer would arise. Further the acceptance 6 and recovery itself is doubtful. There is material contradiction between PW.3 and PW.4 and also PW.7 of the Trap Laying Officer regarding the recovery of money and further the main ingredient of demand and acceptance is also absent. If any one is absent, the appellant /accused is entitled for acquittal.
8.The learned Counsel for the appellant would further submit that the de facto complainant has taken loan from the appellant and therefore, the appellant asked the de facto complainant to repay the money. However, a false case has been foisted against the appellant. The appellant has filed a suit against the de facto complainant and the suit clearly reveals that there has been a money transaction between the appellant and the de facto complainant. Since the appellant demanded back the money, a false case has been filed against him. The amount received by the appellant is only the loan amount obtained from the appellant by the de facto complainant. However, there is no demand and also soon before the complaint was also there was no demand. Therefore, the prosecution has failed to prove the main ingredient of demand and acceptance and recovery. The Special Judge has not properly appreciated the evidence and failed to consider the defence taken by the appellant and has failed to consider the points raised in the written arguments and failed to give opportunity to argue the http://www.judis.nic.in matter. Therefore, under these circumstances, the main contention 7 raised by the appellant is that the prosecution has failed to prove the case beyond reasonable doubt and therefore, the judgment of the trial Court warrants interference. In order to support his case contention he has placed reliance on the judgments in the case of C. Rukmangathan Vs State, reported in (2009) 4 MLJ (Crl) 233 and Arokiaraj and Another Vs State, reported in (2014) 3 MLJ (Crl) 122.
9.The learned Special Public Prosecutor would submit that there was a complaint filed by the de facto complainant before the respondent Police CBI on 07.05.2007 at about 8.30 hours alleging that the appellant demanded a sum of Rs.1,000/- for recommending his request to transfer from Kudikadu Gang/ Section (N-2KXO), Thiruvarur to Mariyammankovil Gate. An application was also submitted by the de facto complainant for recommending his transfer application. Since the appellant demanded bribe, the de facto complainant approached PW.7 Trap Laying Officer through the Superintendent of Police, ACB and the Trap Laying Officer after receiving the complaint registered a case and forwarded to the higher authorities for trap. He called two independent witnesses and also demonstrated the pre-trap laying proceedings and thereafter PW.7 asked the de facto complainant to meet the appellant and if the appellant demands money, then only http://www.judis.nic.in he could hand over the money to the appellant. After giving money 8 to him, to show the pre-arranged signal to him, from the place of occurrence and he would accompany with PW.4.
10.As per the instructions, PW.3 went to the residence of the appellant on 08.05.2007 and when he enquired the appellant about his transfer, the appellant asked the de facto complainant as to whether he brought the money as demanded by him in the earlier meeting. He said he had brought the money. When he asked about PW.4 independent witness, it was told that he came along with him for request of transfer. Thereafter, the appellant had received the bribe money, PW.3 and PW.4 came out of the place of occurrence and he exhibited the pre-arranged signals to the Trap laying officer, who in turn, after receiving the signals from PW.3 the de facto complainant, proceeded to the place of occurrence and when PW.7 entered into the house of the appellant, introduced himself and questioned about the demand and acceptance of the bribe amount of Rs.1,000/- from the de facto complainant, the appellant was perplexed and he did not say anything. Thereafter, he accepted that he had received the amount and kept in a shirt packet, which was in the bedroom. The recovery mahazar also corroborated the place of occurrence and both the residence and office are in the same compound. The observation mahazar also shows that both are situated in the same compound and the weekly http://www.judis.nic.in diary submitted by the appellant is only an afterthought and the 9 diary was not submitted on earlier occasion and it was submitted only after three days. The defence has not proved its case in the manner known to law and the defence taken by the appellants are only an afterthought. The prosecution has proved the demand, acceptance and recovery and when the possession of tainted money is proved, the presumption under Section 20 of the Prevention of Corruption Act, the money which was in possession is a bribe money. It is for the appellant one who has to rebut the presumption. No valid and acceptable evidence has been let in to prove his defence and rebut the presumption. The oral and documentary evidence produced on the side of the defence are not sufficient to rebut the presumption. Therefore, under such circumstances, the prosecution has proved its case beyond reasonable doubt.
11.Heard both sides and perused the material placed on record and also the judgment of the Special Judge.
12.The case of the prosecution is that on 07.05.2007 one Nagarajan, de facto complainant, who was working as a Keyman in Kudikadu Gang Thiruvarur preferred a complaint to the Superintendent of Police, CBI, ACB, Chennai, alleging that the appellant demanded bribe of Rs.2,000/- for recommending his http://www.judis.nic.in transfer request to higher authority. As the de facto complainant 10 had expressed his inability to pay Rs.2,000/,- it was reduced to Rs.1,000/- by the appellant with a condition to pay the money by 08.05.2017, otherwise to continue to work in Kudikadu Gang for rest of his service. On 07.05.2007 at about 8.15 pm, since the de facto complainant was unwilling to pay any bribe to the appellant, he made a complaint to the Superintendent of Police, who in turn directed the de facto complainant to meet the the Trap Laying Officer at Thiruvarur and lodge a complaint. Subsequently, after receiving a complaint from the de facto complainant on 07.05.2007, the CBI Officer had planned a trap and on 08.05.2007 at about 6.00pm, the appellant is alleged to have demanded the illegal gratification of Rs.1,000/- at his residence from the de facto complainant in the presence of the shadow witness and the appellant was caught red handed by the Trap Laying Officer, while demanding and accepting the said illegal gratification of Rs.1,000/-. The phenolphthalein test also proved positive. After completing the investigation, the respondent Police laid a charge sheet and the same was taken on file in CC No.12 of 2007 on the file of the Special Court and after completion of the procedural formalities, the Special Judge framed charge against the appellant for the offence under Section 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and considering all the materials placed on record, the Special Judge, rightly convicted the appellant and sentenced as http://www.judis.nic.in mentioned supra.
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13.In order to prove the case of the prosecution, the CBI respondent had examined 10 witnesses and marked 46 documents and 40 material objects were exhibited and on the side of the defence 5 witnesses were examined and 10 documents were marked.
14.A reading of the complaint shows that there is no dispute that the appellant was working as a Section Engineer, Thiruvarur, Tiruchirappalli Division. It is also not in dispute that the de facto complainant was working as a key man in the Kudikadu Gang/Section (N-2KXO), Thiruvarur. At that relevant point of time, the de facto complainant had made an application for transfer to Mariyammankoil Gang. It is the case of the prosecution that for recommending his transfer application request, the appellant initially demanded a sum of Rs.2,000/- and due to the inability expressed by the de facto complainant, the appellant had reduced the amount from Rs.2,000/- to Rs.1,000/-. On the occurrence day ie., on 08.05.2007, when the de facto complainant went and met the appellant, he demanded the money and the same was paid by the de facto complainant. After giving the amount, the Trap Laying Officer entered into the house of the appellant and caught the appellant red handed and the money was recovered through http://www.judis.nic.in recovery mahazar and also phenolphthalein test was conducted and 12 the report also found to be positive. The solution was also sent to the Laboratory. The Chemical Analyst Report Ex.P.4 and the evidence of PW.2 also corroborated the same. Therefore, through the evidence of PW.3, PW.4 and PW.7 the prosecution has proved the case beyond reasonable doubt.
15.The case of the defence is that he never demanded money from the de facto complainant. Moreover, the appellant is not a transferring authority and there was a money transaction between the appellant and the de facto complainant. On the alleged date of occurrence, he was neither in the house or office, but he was out of station for line and in order to prove his defence he examined 5 witnesses and also 10 documents.
16. A perusal of the Sanction order ExP.1 and the complaint made by the PW.3 the de facto complainant before the respondent CBI, clearly shows that the de facto complainant was working as a keyman at Kudikadu Gang / Section (N-2KXO), Thiruvarur and he requested the appellant for transfer to Mariyammankovil gate and also submitted an application, for which the appellant initially demanded Rs.2,000/-
17.A perusal of the evidence of PW.3, PW.4 and PW.7, http://www.judis.nic.in shows that finally on 07.05.2007, when the de facto complainant 13 met the appellant expressed his in ability, the same was reduced to Rs.1,000/-. Therefore, unwilling to give bribe and due to the attitude of the appellant, the de facto complainant had made a complaint to the respondent and subsequent to the complaint, PW.7 had planned a trap at 8.30 pm on 07.05.2007 with two independent witnesses. As per the plan, the de facto complainant along with PW.4 went and met the appellant on 08.05.2007 at about 6.00pm and enquired about his transfer, the appellant had asked whether he had brought the money as demanded earlier and after the demand, the de facto complainant had handed over Rs.1,000/- to the appellant. He also asked about the PW.4 for which he told that he accompanied him. Therefore, it is proved that the demand was made by the appellant from the de facto complainant on 08.05.2007, PW.4 who is the independent witness also witnessed the same and after handing over the money, they came out of the residence and shown the pre arranged signal to the Trap Laying Officer. The Trap Laying Officer on receiving the pre-arranged signal from the de facto complainant, proceeded to the house of the appellant. The appellant had made a demand on 07.05.2007 and finally there was demand even on 08.05.2007.
18. PW.4 the independent witness has clearly spoken about the demand made by the appellant from the de facto http://www.judis.nic.in complainant on 08.05.2007. From the evidence of PW.3 it is clear 14 that initially there was a demand for recommending his application for transfer and after six months when he approached the appellant it is stated that the appellant demanded Rs.2,000/- and due to the inability expressed by him on 07.05.2007, the demand was reduced into Rs.1,000/-. Subsequently, he has spoken about the unwillingness to give bribe and made a complaint before the respondent Police. Then the trap laying demonstration was conducted and subsequently, after the demand and acceptance, the appellant was caught red handed by PW.7. PW.4 is the shadow witness, who had accompanied PW.3, the de facto complainant on 08.05.2007. PW.4 was working as Cashier in National Insurance Company, who is the independent witness and he was summoned through proper channel. Therefore, PW.4 shadow witness has clearly spoken about the demand made by the appellant on 08.05.2007 from the de facto complainant and he has also spoken about the acceptance of the bribe by the appellant. After receiving the pre arranged signal, the Trap Laying Officer entered into the place of occurrence and after enquiring, he had recovered the money from the appellant through recovery mahazar and the appellant had also signed in the recovery mahazar and in the observation mahazar.
19. PW.7 the Trap Laying Officer has clearly spoken that http://www.judis.nic.in the de facto complainant had approached the Superintendent of 15 Police and the Superintendent of Police informed PW.7 to receive the complaint from the de facto complainant and to proceed in accordance with law. PW.7 after receiving the complaint from the de facto complainant had decided to lay a trap and he called independent witnesses through their office and conducted pre-trap laying demonstration and subsequently, the trap was held and the appellant was caught red handed and during the interrogation money was also recovered from the shirt packet of the appellant. From the evidence of PW.4 and PW.7 the recovery is proved. Therefore on reading of the entire evidence of PW.3, the de facto complainant and PW.4, the shadow witness (independent witness) PW.7, the Trap Laying Officer, the complaint Ex.P.5 and recovery mahazar and the tainted money MO.5 and Ex.P.4 Chemical Analyst report and the evidence of PW.2 that the solution sent to Forensci Lab shows positive. Therefore, through these material evidence the prosecution has proved its case beyond reasonable doubt.
20.Though the appellant has taken main defence that there was no demand and there was a money transaction between the appellant and the de facto complainant. There is a civil dispute also pending with reference to the recovery of money. Further the appellant was out of station on 07.05.2007 and therefore, it was not possible for the appellant to demand the money on that day and http://www.judis.nic.in also the money which was received by the appellant was only the 16 money borrowed by the de facto complainant from the appellant. A reading of the materials shows that though sufficient opportunity was given to the appellant, he had not given any explanation for the possession of tainted money and further the appellant had not taken the defence immediately that he was not in the station on 07.05.2007 and he has not filed any complaint against him before the superior officer and the Ex.D.6 is also filed 3 days later and it is only an afterthought. Ex.D.9 Is after the occurrence in order to get over from the present case. Therefore, all the defence taken by the appellant are only afterthought. There are no valid materials to believe the defence taken by the appellant. Though it is a well settled proposition of law that the appellant need not prove his defence by letting in direct evidence, but he could very well prove the same through probable defence. But, whereas reading of the evidence of PW.3, PW.4 and PW.7 and the evidence of Chemical analyst PW.2 and the complaint Ex.P.5, the recovery mahazar Ex.P.7 the phenolphthalein test report Ex.P.4, this Court finds that the prosecution has proved its case beyond reasonable doubt. There is no reason to discard or disbelieve the evidence of PW.3, the de facto complainant, PW.4, the shadow witness (independent witness). The prosecution has proved the demand, acceptance and recovery and it is the presumption under Section 20 of the Prevention of Corruption of Act, that the tainted money is only a http://www.judis.nic.in bribe and the it is the appellant who has to prove that the money is 17 not a bribed money and therefore, the appellant has not proved his defence in the manner known to law and has not rebutted the legal presumption under Section 20 of the Prevention of Corruption Act.
21.A reading of the entire records and the evidence and the documents, it is seen that the defence taken by the appellant is created one in order to escape from the clutches of law and the appellant has not proved his defence in the manner known to law by acceptable evidence. Therefore, considering the facts and circumstances of the present case on hand the citations referred to by the learned Counsel for the appellant are not applicable to the present case.
22.Under such circumstances, this court finds that the prosecution has proved the main ingredient of demand, acceptance and recovery with cogent evidence with sustainable materials. Therefore, this Court finds that the appellant has committed offence under Section 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
23.There is no valid ground and sound reason to interfere with the conviction and sentence imposed by the Special Judge. There is no merit in the appeal and the same is liable to be http://www.judis.nic.in dismissed and accordingly, this criminal appeal is dismissed and the 18 judgment of the Special Judge for CBI Cases, Madurai dated 11.01.2010 rendered in CA No.12 of 2007 is hereby confirmed. The respondent is directed to secure the appellant forthwith to undgergo the remaining period of sentence.
30.11.2018 dsk Index : Yes/No Internet : Yes /No To
1.The Special Judge for CBI Cases, Madurai.
2.The Inspector of Police, Central Bureau of Investigation, Special Police Establishment, Anti Corruption Branch, Shastri Bhavan, 3rd Floor, Haddows Raod, Chennai.
http://www.judis.nic.in 19 P.VELMURUGAN, J., dsk Crl.A.(MD).No.19 of 2010 30.11.2018 http://www.judis.nic.in