Madras High Court
State Rep. By vs M.Asaithambi on 3 July, 2009
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.966 of 2004 State Rep. By The Deputy Superintendent of Police Vigilance and Anti Corruption Police Station Udhagamandalam Crime No.1/2002 ... Appellant Vs. M.Asaithambi ... Respondent This Criminal Appeal has been filed under Section 378 of Criminal Procedure Code as against the order of acquittal made in C.C.No.3/2002 dated 26.03.2004 by the learned District Judge cum Chief Judicial Magistrate & Special Judge, Udhagamandalam. For Appellant : Mr.R.Muniapparaj Government Advocate (Crl. Side) For Respondents: Mr.K.Rajkumar J U D G M E N T
This appeal against acquittal has been preferred by the State represented by the Deputy Superintendent of Police, Vigilance and Anti Corruption Police Station, Udhagamandalam against the judgment of the learned Special Judge under the Prevention of Corruption Act, 1988 (District Judge cum Chief Judicial Magistrate), Udhagamandalam in Special C.C.No.3/2002 dated 26.03.2004.
2. The sole accused in the above said case was prosecuted for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. At the conclusion of trial, the learned trial judge,by his judgment dated 26.03.2004, acquitted the respondent herein/accused holding that the charges were not proved beyond reasonable doubt and that the respondent/accused was not guilty of any of the offences for which he was prosecuted and acquitted him of all the offences with which he stood charged. Challenging the correctness and legality of the said judgment of acquittal, the State has come forwards with the present appeal under Section 378 Cr.P.C.
3. The case of the prosecution, in brief, can be stated as follows:-
i) The respondent/accused was employed as Revenue Inspector in the office of the Municipality of Coonoor, Nilgiris District. The de-facto complainant Anandan (P.W.1) was residing in Coonoor along with his wife Sagayameri. The said Sagayameri was an elected councillor of Coonoor Municipal Council. In Chandra Colony, the above said Sagayameri had got a house site measuring 3 cents comprised in Survey No.2722. She had applied to the Coonoor Municipality for assessment of property tax in respect of the above said house site.
ii) When P.W.1 approached the respondent herein/accused on 02.01.2002 at about 3.00 p.m, the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification. After bargain, he agreed for a sum of Rs.5,000/-. However, on 09.01.2002, P.W.1 went to the office of the municipality and informed the respondent herein/accused that he had not got the money. Thereafter, the respondent herein/accused informed P.W.1 that he must pay at least Rs.4,000/- and directed him to come and meet him in the office on 10.01.2002.
iii) On 10.01.2002, P.W.1 went to the Vigilance and Anti-corruption Wing and gave a complaint marked as Ex.P3 at 10.00 a.m. P.W.7, the then Deputy Superintendent of Police, Vigilance and Anti-corruption Department, Udhagai received the said complaint, prepared Ex.P14-First Information Report and registered a case as Cr.No.1/2002 on the file of Vigilance and Anti-corruption Wing, Udhagai, under Section 8 of the Prevention of Corruption Act, 1988. Thereafter it was decided to trap the respondent herein/accused while receiving the illegal gratification. P.W.3-Anish Ahamed and one Shivasubramania samraj were invited to be the witnesses in this regard. In their presence it was demonstrated by the police as to how phenolphthalein test shall be conducted in trap cases. M.O.3 series, namely cash of Rs.4,000/- (Rs.500 x 4 and Rs.100 x 20) were coated with phenolphthalein powder and again entrusted to P.W.1 with instructions to go to the Municipal office and give the currency notes coated with phenolphthalein powder to the accused (respondent) in the event of any demand being made by him. He was also asked to take along with him P.W.3. P.W.1 had also been advised to give a signal if the respondent herein/accused received the money as illegal gratification.
iv) When P.W.1, accompanied by P.W.3, went to the Municipal office, Coonoor, the respondent herein/accused was found in his seat. When they approached the respondent herein/accused, he asked P.W.1 whether he had brought the money. When the answer was in the affirmative, the respondent herein/accused came out of the office along P.Ws.1 and 3, received a sum of Rs.4,000/- from P.W.1 as illegal gratification in the presence of P.W.3 and kept it safely in the left side pocket of his pants. Thereafter, P.W.1 gave a signal to the police, pursuant to which the police people came out of their hide out. When phenolphthalein test was again conducted in the office of the respondent herein/accused by asking him to dip his fingers in the Sodium Carbonate solution, the solution turned pink suggesting presence of phenolphthalein power. When the respondent herein/accused was questioned about the money received by him from P.W.1, his initial reaction was that he did not receive any money from P.W.1. However, after initial hesitation, he took out M.O.3 series from the left side pocket of his pants and handed them over to the police. The currency notes were verified with the numbers already noted in the Mahazar prepared in the office of the Vigilance and Anti-corruption Department. Thereafter, the respondent herein/accused was given a dhoti to change his pants and the said pants was recovered from him. When phenolphthalein test was conducted for the left side pocket of his pants, it proved positive.
v) The Sodium Carbonate solution used at the time of demonstration in the office of the Vigilance and Anti-corruption Department and the Sodium Carbonate solutions, used for phenolphthalein test in the office of Coonoor Municipality were separately sealed then and there itself. A rough sketch marked as Ex.P11 was also prepared to show the topography of the place of occurrence. Ex.P1-application of Sagayameri for property tax assessment, Ex.P7-Property tax assessment register, Ex.P8-Distribution register, Ex.P9-Tapal register, Ex.P6-A2 Register were recovered from P.W.4, the then Revenue Officer, by P.W.7, the Deputy Superintendent of Police. Separate mahazars were prepared for entrustment of the phenolphthalein coated currency notes to P.W.1 in the office of the Vigilance and Anti-corruption department at the time of preparation for laying a trap and for the recovery of M.Os.4 to 7 series in the office of Coonoor Municipality. The Sodium Carbonate solution used for the demonstration of phenolphthalein test in the office of P.W.7 and used in the trap for the fingers of the respondent herein/accused and for the left side pocket of the pants of the respondent herein/accused were sent to the Forensic Lab through court with necessary requisitions and a positive report was received from the Forensic Lab. As P.W.7 was subsequently transferred and he was succeeded by P.W.8 who in turn was later on succeeded by P.W.9, the investigation was continued by P.W.8 and then by P.W.9 who completed the investigation and submitted a charge-sheet on the file of the District Judge cum Chief Judicial Magistrate (Special Judge for Prevention of Corruption Act) alleging commission of the above said offences. Necessary sanction for prosecution was also obtained before the submission of the charge-sheet. P.W.2, the then Director of Municipalities had passed the sanction order, marked as Ex.P5.
4. On appearance of the respondent herein/accused before the trial court, he pleaded innocence. Necessary charges were framed by the trial court for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The respondent herein/accused denied the said charges, pleaded not guilty and wanted the case to be tried.
5. Nine witnesses were examined as P.Ws.1 to 9 and 18 documents were marked as Exs.P1 to P18 and also 7 material objects were produced as M.Os.1 to 7 on the side of the prosecution to substantiate the charges framed against the respondent herein/accused. After recording of evidence on the side of the prosecution was over, the accused was questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and once again reiterated his stand that he was innocent and that the case was foisted by P.W.1, who was the husband of an elected councillor of Coonoor Municipality with the help of his friends in the Anti-corruption Wing of the police department. No witness was examined on the side of the respondent herein/accused. However, eight documents were marked as Exs.D1 to D8 on his side.
6. The trial judge heard the arguments advanced on either side, considered the evidence brought before him in this case in the light of the points urged in such arguments and upon such consideration, came to the conclusion that the prosecution failed to prove the charges beyond reasonable doubt. Holding the respondent herein/accused not guilty of the offences with which he stood charged the trial court acquitted him of the said charges by its judgment dated 26.03.2004.
7. Aggrieved by the same and challenging the correctness and legality of the said judgment of acquittal dated 26.03.2004, the State represented by the Deputy Superintendent of Police has brought-forth this appeal on special leave on various grounds set out in the appeal petition.
8. The point that arises for consideration is:- "whether the judgment of acquittal pronounced by the trial court suffers from any defect or infirmity warranting interference in this appeal?"
9. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl. Side) and by Mr.K.Rajkumar, learned counsel for the respondent/accused were heard. The entire materials on record were also perused.
10. The present appeal has been filed by the State with the special leave of this court against the judgment of acquittal pronounced by the Special Court under the Prevention of Corruption Act (District Judge cum Chief Judicial Magistrate), Udhagamandalam dated 26.03.2004 made in C.C.No.3/2002. Section 378(1) Cr.P.C enables the State to prefer an appeal to the High Court against the order of acquittal. But, sub-clause (3) of Section 378 says that no appeal under the sub-clause (1) shall be entertained except with the leave of the High Court. In this case, this court has granted such leave by its order dated 29.07.2004 made in Crl.O.P.No.27384/2004.
11. It is a case of trap in which the respondent herein/accused is alleged to have been caught after receiving a sum of Rs.4,000/- as illegal gratification. According to the prosecution story, for passing an order of assessment of property tax on an application made by the wife of P.W.1, the respondent herein/accused initially demanded a sum of Rs.7,000/- as illegal gratification, then reduced it to Rs.5,000/- and at last reduced the demand to Rs.4,000/- which amount was received by him from P.W.1 on 10.01.2002 at about 3.00 p.m. It is the further case of the prosecution that not willing to pay any amount as illegal gratification as demanded by the respondent herein/accused, P.W.1 lodged a complaint with P.W.7 under Ex.P3, whereupon P.W.7 organised a trap operation in which the respondent herein/accused was caught with the bribe money.
12. The learned Government Advocate (Crl. Side) argued that the witnesses for the trap operation had given clear evidence without any scope for contradiction and that despite the same, the learned trial judge pointing out minor discrepancies and blowing the same out of proportion, came to an erroneous conclusion that the prosecution failed to prove its case beyond reasonable doubt. It is his further contention that the finding of the court below, can even be termed "perverse" and that the same has resulted in grave injustice and miscarriage of justice which should be rectified and set at right by this court by convicting the respondent herein/accused for the offences for which he was prosecuted.
13. Per contra, the learned counsel for the respondent herein/accused would contend that the court below considered the evidence in proper perspective and came to a correct conclusion that the prosecution failed to prove its case beyond reasonable doubt; that the presumption of innocence shall be doubly strengthened by the judgment of acquittal and stronger grounds are needed for interference with such judgment of acquittal and that in this case, the appellant has not made out any such stronger ground for setting aside the order of acquittal and convicting the respondent herein/accused reversing the judgment of acquittal.
14. This court paid its anxious consideration to the submissions made on either side.
15. Though, P.W.1 happened to be the de-facto complainant, he was not the applicant before the Municipality seeking assessment of property tax for his property. On the other hand, his wife Sagayameri is said to have made the application-Ex.P1 for passing an assessment order fixing property tax for her property, namely a house site measuring 3 cents comprised in survey No.2722 in Chandra Colony, within the limits of Coonoor Municipality. The said application was allegedly submitted on 27.12.2001. Ex.P2 is the receipt issued in the municipal office in token of having received Ex.P1-application. It is the case of the prosecution that the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification on 02.01.2002 for preparing the assessment note. It is pertinent to note that Sagayameri (wife of P.W.1) was an elected councillor of Coonoor Municipality. The taxing authority is none other than the municipality of Coonoor. As rightly pointed out by the learned counsel for the respondent herein/accused, it is quite improbable for an employee of the Coonoor municipality to demand illegal gratification for making assessment of property tax relating to the property of an elected member of the very same municipality.
16. Ex.P1 is the application submitted by Sagayameri to the Commissioner, Coonoor municipality on 27.12.2001. There is an endorsement made by the Revenue Officer on 03.01.2002 directing the application to be sent to the Revenue Inspector for his remarks. It is the case of the prosecution that on 02.01.2002 itself P.W.1 met the respondent herein/accused and on that day itself the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification. As rightly pointed out by the learned counsel for the respondent herein/accused, it is quite improbable for the respondent herein/accused to have made such a demand even before seeing the application and even before the application was referred to him for his remarks. Only on 03.01.2002, the endorsement was made by the Revenue Officer to send the application for the remarks of the Revenue Inspector. However, the learned Government Advocate (Crl. Side) would contend that the mere fact that the said application was directed to be sent to the accused by the endorsement of the Revenue officer dated 03.01.2002, shall not be enough to hold that the respondent herein/accused was not aware of such an application and that he could have demanded illegal gratification expecting the application to come to his table for his remarks and calculation. Of course, it is true that such a thing is also probable. However, the said aspect should be kept in mind while dealing with the evidence regarding the alleged commission of offence during the trap operation. It should also be kept in mind that Sagayameri has not been examined as a witness on the side of the prosecution and no reason has been assigned for not examining her on the side of the prosecution.
17. It is admitted by P.W.1 that the election to the Municipal Council was held in the month of October 2001 and his wife Sagayameri was elected to Ward No.28 as an independent candidate. He has also admitted that he had acquaintance with all the officers of Coonoor municipality. He has also admitted that there was a long-standing friendship between himself and one Wood Coat Anand. It is also admitted by P.W.1 that the said Wood Coat Anand was in huge arrears of tax to the municipality and that it was the respondent herein/accused who got arrest warrant against the said person. It is the case of the respondent herein/accused that only at the instigation of the said Wood Coat Anand, P.W.1 foisted the case against the respondent herein/accused with the help of his friends in the Vigilance and Anti-corruption wing of the police department. P.W.1 has candidly admitted that P.W.7, the then Deputy Superintendent of Police, Vigilance and Anti-corruption was known to him and they were close enough to shake hands whenever they would meet. If the evidence of P.W.1 is considered in its entirety, the submission made by the learned counsel for the respondent herein/accused that he is not a reliable witness and he is capable of manipulating things, becomes sustainable or at least probable. Ex.P1-application for property tax assessment was given in the name of Sagayameri. But during cross-examination, P.W.1 has admitted that he himself put the signature of his wife Sagayameri in Ex.P1-application. As he had made such a change of version during cross-examination by the learned counsel for the respondent herein/accused, the trial court granted permission to the Public Prosecutor to treat him hostile and cross-examine him. Even during such cross-examination on behalf of the State, he again asserted that it was he, who put the signature of his wife Sagayameri in Ex.P1-application. Again while he was cross-examined further on behalf of the respondent herein/accused admitted that his wife would not sign as the signature found in Ex.P1. Therefore, the said signature alone has been marked as Ex.D3. When a person has gone to the extent of admitting that he himself forged the signature of his wife as the applicant, his credibility is impaired to a great extent.
18. In Ex.P3-complaint it has been stated that there was a shed in the property regarding which property tax assessment was sought for in Ex.P1-application. Admittedly, if there was any superstructure of a minimum value, the property tax for the same would be lesser than the property tax that would be levied for a vacant site. It is the contention of the respondent herein/accused that P.W.1 wanted him to make an assessment of property tax at a lesser rate on the ground that the property was not a vacant site and a superstructure of lesser value was there in the property and that when the same was not accepted, at the instigation of Wood Coat Anand, P.W.1 foisted the case against the respondent herein/accused. It is the clear admission of P.W.1 that no shed was in existence in the above said property at the time of submission of the application as noted in Ex.P3-complaint. P.W.1 has also admitted that Ex.D1 series are the photographs of the property of his wife regarding which Ex.P1 application had been given and that Ex.D2 series are their negatives. It is obvious from the said photographs that no superstructure was found in the said property. P.W.1 has also clearly admitted that the property remained a vacant site and there was no shed in the said property. In Ex.P1-application, except the signature of the applicant and the door number of the property, no other particular were provided. All the columns had been left blank. Even in the Form 'A' attached to the application, all the columns except door number had been left blank. Therefore, it is quite probable that an attempt would have been made to get the property assessed for property tax as if it had a small shed in it so that it would attract a lesser amount as property tax, whereas in fact it was a vacant site. Therefore, the motive for foisting the case against the respondent herein/accused, as contended by him, becomes more probable. Apart from that, the de-facto complainant, on whose complaint the case was registered and the trap was allegedly organised, has betrayed the prosecution by admitting the contention of the respondent herein/accused that he wanted to get him trapped in a criminal case and for that purpose he gave a false complaint against the respondent herein/accused at the instigation of the above said Wood Coat Anand. For better appreciation, the following excerpts from his evidence in the vernacular language is extracted here under.
"cl;nfhl; Mde;jpid ifJ bra;tjw;F vjphp jhd; fhuzk; vd;w tpguk; vdf;F gpd;dhy; bjhpa te;jJ vd;why; rhpjhd;/ cl;nfhl; Mde;j; vg;goahtJ M$h; vjphpia khl;l itf;fntz;Lbkd;gjw;fhf bgha;ahf xU g[fhiu bfhLf;f bra;jhh; vd;Wk; mij gpd;dhy; bjhpe;Jbfhz;nld; vd;why; rhpjhd;/"
19. When the very foundation of the prosecution case is shaken by the admission of P.W.1 that he gave a false complaint against the respondent herein/accused at the instigation of the above said Wood Coat Anand, the further case of the prosecution regarding the trap should also be approached with a greater caution than the one required relating to the complaint-Ex.P3. Of course, there are evidence in the form of depositions of P.W.1, P.W.3 and P.W.7 to the effect that, after the registration of the case based on the complaint of P.W.1 marked as Ex.P3, P.W.3-Anish Ahamed, an employee in Tamil Nadu Electricity Board and one Shivasubramaniam samraj from Horticulture Department were invited by P.W.7 and in their presence a demonstration was made to show how the phenolphthalein test would work. The requisition for sending the material objects for chemical analysis to the forensic laboratory has been marked as Ex.P16. The covering letter of the trial court sending the said articles to the forensic laboratory for chemical examination has been marked as Ex.P12. The sample Sodium Carbonate and sample phenolphthalein, the Sodium Carbonate solution used at the time of trap for the fingers of the respondent herein/accused and such a solution used for the pocket of his pants were also sent along with the requisition. The Sodium Carbonate solution used for testing the right hand fingers of the respondent herein/accused contained in a sealed bottle marked as "S-1", a similar solution used for testing the fingers on the left hand of the respondent herein/accused marked as "S-2" and the Sodium Carbonate solution used for testing the pants pocket of the respondent herein/accused marked as "S-3" in the bottle had been sent to the forensic laboratory along with the samples of Sodium Carbonate powder used for the phenolphthalein test marked as 'A' and the sealed cover containing controlled samples of phenolphthalein powder used for the test at the time of trap marked with the marking 'B'. The sample Sodium Carbonate and sample phenolphthalein powder have been marked as M.O.1 and M.O.2, whereas the Sodium Carbonate used for testing the fingers of the accused and the pants pocket of the accused have been marked as M.Os.5 to 7. The report of the Scientific Assistant, counter signed by the Scientific officer and also by the Assistant Director of Forensic Laboratory has been marked as Ex.P13. Under Ex.P13, M.O.1 was certified to be Sodium Carbonate, M.O.2 was certified to be phenolphthalein powder and M.Os.5, 6 and 7 were certified to contain both Sodium Carbonate and phenolphthalein. As already pointed out, the demonstration shown by the police officers to the witnesses for the said demonstration, namely P.Ws.3 and 1 is not disputed. However, there is a dispute regarding the manner in which the phenolphthalein test was conducted during the course of trap operation.
20. It is the contention of the respondent herein/accused that he did not make any demand and he did not receive any money as illegal gratification from P.W.1. It is his further contention that the entire trap operation was a stage managed show organised by P.W.7 who was a friend of P.W.1 and that P.W.1 did it at the instigation of one Wood Coat Anand. The learned counsel for the respondent herein/accused pointed out the admission made by P.W.1 in this regard that the respondent herein/accused took effective steps to collect the arrears of tax due to the municipality and in the case of the above said Wood Coat Anand he had not only obtained a non-bailable warrant but also executed the same and produced him before the court. The learned counsel drew the attention of the court to the admission made by P.W.1 that the said Wood Coat Anand wanted to take revenge on the respondent herein/accused and at his instigation he lodged a fase complaint against the respondent herein/accused and that the police officer (Deputy Superintendent of Police) who registered the case and organised the trap, namely P.W.7-Gibson was a friend of P.W.1. In the above said background, the evidence regarding the actual occurrence during the alleged trap operation has to be considered. P.W.1-the de-facto complainant, P.W.3-an eye witness and attestor of the mahazars, P.W.4-the Revenue Officer who also attested the mahazar prepared in the scene of occurrence, P.W.7-Thiru.Gibson, the Deputy Superintendent of police who registered the case and organised the trap are the witnesses examined on the side of the prosecution to prove that the respondent herein/accused received M.O.3 series currency notes and on a test being conducted, the Sodium Carbonate solution turned pink.
21. So far as the testimony of P.W.1 is concerned, as pointed out supra, he is not a reliable witness and that he has admitted to have given a false complaint against the respondent herein/accused. It is the evidence of P.W.3 that when P.W.1 and 2 met the respondent herein/accused at about 3.00 p.m on 10.01.2002 in his office, he asked P.W.1 whether he had brought the amount for which P.W.1 gave the reply in the affirmative; that immediately the respondent herein/accused took them out of the office and received the amount tendered by P.W.1 outside the office; that the respondent herein/accused received the amount using his right hand, changed it to his left hand and then put it in the left side pocket of his pants. It is also his evidence that after receiving the signal from P.W.1, P.W.7 and other police officials entered the office and conducted, at the first instance, phenolphthalein test to both the hands of the respondent herein/accused. It is his further evidence that when the phenolphthalein test proved positive, the respondent herein/accused, after initial denial and hesitation, handed over the M.O.3 series-currency notes taking out the same from his left side pocket of his pants. It is also his evidence that P.W.7 gave a dhoti to the accused to wear and got the pants of the accused which also proved positive for the phenolphthalein test when the left side pocket of the pants was dipped in the Sodium Carbonate solution. Where from the dhoti came? Whether they had gone there with the dhoti in anticipation that the accused would be wearing pants and he would venture to put the phenolphthalein coated currency notes in his pocket? there is no explanation or evidence.
22. P.W.4, the then Revenue officer of Coonoor municipality has not stated in his evidence that he saw the accused receiving any money from P.W.1. On the other hand, he corroborated the evidence of P.W.2 regarding the phenolphthalein test conducted for the hands and pants of the accused and also the recovery of M.O.3 series currency notes. P.W.4 has clearly admitted that he was not an eye witness for the act of the accused receiving the amount and for the act of P.W.1conveying the said message with a signal as per the pre-planned arrangement. However, in the mahazar marked as Ex.P10 those particulars have also been incorporated. Therefore, it is obvious P.W.4 has attested Ex.P10 which contains those particulars also, without knowing the correctness of the same. It is also his admission that he was not aware of the particulars found in page 2 of Ex.P10. However, he has not chosen to say that he could not attest the mahazar as it contained particulars which were not known to him. In this regard P.W.7's evidence also seems to be supporting and corroborating the evidence of P.Ws3 and 4. But a vital discrepancy making inroads into the credibility of those witnesses can be noticed when their testimonies are compared with the documentary evidence found in Ex.P12. Ex.P12 is the office copy of the letter of requisition sent by the court below to the forensic laboratory for chemical examination of M.Os.1, 2, 5, 6 and 7. In the said requisition letter marked as Ex.P12, item 3 has been noted as "Sodium Carbonate phenolphthalein in resultant solution (pink colour) tested on the right side pants pocket of accused marked as 'S.3' in a bottle and sealed". However, in Ex.P13, the report received from the forensic laboratory the solution marked as 'S.3' has been described to be the resultant Sodium Carbonate and phenolphthalein solution dipped with the "left hand side pants pocket lining portion."
23. Ex.P16 is the letter of requisition submitted by the Inspector of Police (Vigilance and Anti-corruption) to the trial court for sending M.Os.1, 2 and 5 to 7 to the forensic laboratory for chemical analysis. It simply contains the following description of M.Os.5 to 7:- "Three sealed bottles containing resultant solutions obtained during the Phenolphthalein test, all labeled as 'S-1', 'S-2' and 'S-3'." Only in the case history, it has been stated that the left side pocket portion of the pants of the accused from which money was taken out and produced by the accused was also subjected to phenolphthalein test. In Ex.P10-mahazar also it has been stated that the left side pocket of the pants of the accused was subjected to phenolphthalein test. We can assume that the court below might have committed a mistake while describing M.O.7 to be the resultant Sodium Carbonate phenolphthalein solution used for testing the pocket of the pants of the accused by terming it "right side pocket of the pants" instead of "left side pocket of the pants". But the said discrepancy will assume importance in the light of absence of any explanation on the side of the prosecution as to where from the Deputy Superintendent of Police got the dhoti which was allegedly given to the accused. There is total absence of evidence regarding where from the said dhoti came. That apart, neither P.W.7, nor the subsequent investigating officers chose to get back the dhoti and produce it to be identified by the witnesses. If the admission made by P.W.1 in this regard is considered in the above said background, it will cause a serious doubt in the prosecution version.
24. P.W.1 has made a clear admission in his evidence during cross-examination that the accused was found wearing a dhoti when he met him for the first time on the date of occurrence and that he was also wearing the garland showing that he was under preparation to visit Sabarimala "rghpkiyf;F khiy nghl;oUe;jhh;". The accused has also given an explanation that he had prepared for visiting Sabarimala and for that purpose he had worn the necessary symbols like garland and black dhoti; that on the date of occurrence since a higher official was visiting Coonoor and he had called for a meeting, he had brought his pants to be worn when the higher official would visit and that the said pants was taken and used by the police to foist the case against him. In this regard, the evidence of P.W.7, during cross-examination lends support to the contention of the accused to some extent. At least the admissions made by P.W.1 would cause a reasonable suspicion in the case of the prosecution. P.W.2 has admitted that the right side pocket of the pants was torn. It is the contention of the accused that since he found the right side pocket of the pants torn, he had chosen to create the mahazar as if the money was kept in the left side pocket of the pants. Though there is evidence to the effect that P.W.7 caused the phenolphthalein coated currency notes to be placed in the shirt pocket of the P.W.1 with instructions not to touch it before ever the accused would make a demand, P.W.7 has admitted that he was not aware whether P.W.1 before going to the place of occurrence handled the phenolphthalein coated currency notes. If at all it was true that the accused was given a dhoti for changing his pants, P.W.7 would not have failed to get back that dhoti and produce the same. In this case, the same was not at all recovered and produced.
25. P.W.1 has also admitted that when he met the accused in his office on 10.01.2002 he shook hands with him. During the examination under Section 313(1)(b) the accused submitted a very short written statement in which he has stated that on 10.01.2002 P.W.1 came to him, shook hands with him and left the place stating that he would return after a short break; that on the date of occurrence he was wearing a black dhoti as he had made preparations for visiting Sabarimala; that the Regional director of Municipalities, Tirupur had proposed to visit Coonoor on that day and that apprehending his appearance before him with a dhoti would be viewed as a disrespect he had kept his pants in the racks with the idea of wearing it when the Regional Director would visit the office. The District Collector who is the Chairman of the District Urban Development Agency had convened a meeting for periodical review of the on-going urban poverty alleviation programme at 11.00 a.m on 10.01.2002 at the Collectorate of the Nilgiris District. The same is evidenced by a copy of the communication sent by the Regional Director of Municipal Administration, Tiruppur, which has been annexed to the said written statement. Subject No.2 of the meeting was the proposal to review the progress of the self employment component of SJSRY. The Lead Manager and the Municipal Commissioner, Coonoor had been asked to take necessary steps to utilise the balance subsidy of self-employment component of SJSRY. Therefore, it is quite obvious that the Regional Director of Municipal Administration, Tirupur had convened a review meeting and the Commissioner of Coonoor municipality also had a part to play in the review meeting. Under such circumstances alone, the respondent herein/accused contends that he had taken his pants and kept it in the racks with the idea of wearing it if the Regional Director would pay a visit to the office. The same is quite probable. The said stand gets strengthened by the admission of P.W.1 that the accused was wearing a black dhoti on the date of occurrence as a symbol of his preparation to visit Sabarimala. The above said discrepany will improbablise the case of the prosecution or at least create a reasonable suspicion regarding the prosecution theory.
26. In this case the trap was organised by P.W.7, the then Deputy Superintendent of Police. The investigation was initially conducted by P.W.8, who was then an Inspector of Police a subordinate to P.W.7. Therefore he would not have ventured to accept the statements or records which would go against the story propounded by his superior, namely P.W.7. In fact P.W.8, while deposing before the court has not even divulged the fact that he was an Inspector of Police when he took up the investigation. The same seems to be a suppression with ulterior motive. However, sensing that such a ground may be taken as a defence, the last lap of investigation was entrusted to P.W.9, an officer equal in rank with P.W.7. However, major part of the investigation had already been done by P.W.8 while he remained as an officer subordinate to P.W.7.
27. As pointed earlier, it is quite improbable for an employee of the municipality, namely Revenue Inspector to demand bribe from the husband of an elected councilor of the municipality, that too in connection with an application submitted by the councilor herself. It is also admitted that the accused did not have the power to assess property tax. It has also been admitted by P.W.4 that the Commissioner alone did have the authority to pass orders of assessment of property tax. Admittedly the property of Sagayameri, the wife of P.W.1 was not an agricultural land so that it would have been exempted from assessment of property tax. As it was a house site, the same was liable to be assessed for property tax as vacant site. When the site comprises a pucca building it will attract a higher property tax. On the other hand, if it comprises a small hut or a shed and the remaining land is shown to be the land appurtenant to the shed or hut, then assessment of property tax would not be made on the basis that the property is a vacant site. P.W.4 has clearly admitted that the property of the wife of P.W.1 was assessed for a property tax of Rs.74/- on the ground that it had a tin shed measuring 6' x 8'. It is also admitted by him that had it been a vacant site, it would attract a tax of 1.6% on the value of the vacant site. He has clearly admitted that a lesser amount had been levied as property tax on the ground that there was a tin shed in a portion of the property. However, P.W.4 himself has admitted that the said property of Sagayameri had been shown to be a vacant site in the document produced by her. P.W.6, the then bill collector employed in Coonoor municipality has also admitted in his evidence that when he was examined by the police, he did not state that there was a shed in any portion of the property of Sagayameri. The photographs produced by the accused and marked as Ex.D1 series whose negatives are marked as Ex.D2 series, also clearly show that there was no superstructure in the said property. Therefore, Sagayameri being an elected councilor of Coonoor municipality should have exerted her influence and obtained an assessment at a lesser rate showing the existence of a small shed in the property even though in fact there was no such shed. As rightly pointed out by the learned counsel for the respondent herein/accused, the refusal on the part of the accused to put a favourable note as if a shed was in existence in the said land, could have provoked P.W.1 to give a false complaint against the accused.
28. In addition to that, P.W.4 has clearly admitted that within three months from the date of assumption of office as Revenue Inspector in the Municipality of Coonoor, the respondent herein/accused was able to collect arrears of tax from so many persons and that he filed a criminal case against one Wood Coat Anand, a friend of P.W.1, got a non-bailable warrant against him, arrested him in execution of the non-bailable warrant and produced him in the court. The said Wood Coat Anand is said to have used P.W.1 to foist a case against the respondent herein/accused. In fact P.W.1 has also admitted such lodging of a false complaint at the instigation of the said Wood Coat Anand.
29. If all these aspects are taken into consideration, one cannot come to any other conclusion than the conclusion that there are many improbabilities in the prosecution case capable of giving rise to a reasonable suspicion that the case could have been foisted as contended by the respondent herein/accused. The trial court considered the evidence in this case in proper perspective and came to a correct conclusion that there were many improbabilities which cumulatively caused a reasonable suspicion regarding the case of the prosecution and that none of the charges framed against the respondent herein/accused was proved beyond reasonable doubt.
30. In the State of Madhya Pradesh v. Bacchudas @ Balram and Ors. reported in 2007(2) Crimes 58 (SC) the Hon'ble Supreme Court has stated that "in an appeal against acquittal there could be no embargo on the appellate court to review the evidence; that the paramount consideration of the court should be to ensure that miscarriage of justice was prevented and that compelling reasons should be there for interfering with the judgment of acquittal."
31. In Chandrappa & Ors. vs. State of Karnataka reported in (2007) CCR 465 (SC) it has been observed that, "it cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by trial court. If two reasonable contractions are possible on the basis of evidence on record, the appellate court shall not disturb the finding of acquittal recorded by the trial court."
32. If the said principles enunciated in the above said judgments of the Hon'ble Supreme Court are applied to the facts of the case on hand, the only conclusion that can be arrived at is that the appellant (State) has not made out such strong grounds for interference with the judgment of acquittal pronounced by the court below. This court, on a re-appreciation of evidence, is not in a position to come to a conclusion different from the one made by the trial court. The judgment of the trial court acquitting the accused, according to the considered view of this court is neither infirm nor discrepants. There is no merit in the appeal and the same deserves to be dismissed.
33. In the result the criminal appeal is dismissed and the order of the learned District Judge cum Chief Judicial Magistrate & Special Judge, Udhagamandalam acquitting the respondent herein/accused is confirmed.
03.07.2009 Index : Yes Internet : Yes asr/ To
1.The District Judge cum Chief Judicial Magistrate & Special Judge, Udhagamandalam
2.The Deputy Superintendent of Police Vigilance and Anti Corruption Police Station Udhagamandalam
3.The Public Prosecutor High Court, Madras P.R.SHIVAKUMAR, J.
asr/ JUDGMENT in Crl.A.No.966/2004 03.07.2009