Madras High Court
M.Anandaraj vs State Represented By on 20 March, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.03.2018
Reserved on: 07.02.2018
Pronounced on: 20.03.2018
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.A.(MD)No.155 of 2006
M.Anandaraj,
S/o.Muthupillai,
District Manager Gr-II,
TAHDCO, Thanjavur,
Thanjavur District. : Appellant/Accused No.1
Vs.
State represented by
The Deputy Superintendant of Police,
Vigilance & Anti-Corruption,
Thanjavur. : Respondent/complainant
[Crime No.1 of 2000]
PRAYER: Criminal Appeal is filed under Section 374[2] of the Code of Criminal
Procedure against the Judgment dated 14.03.2006, made in Special Case No.5 of
2001, on the file of the learned Special Judge cum Chief Judicial Magistrate,
Thanjavur at Kumbakonam.
!For Appellant : Mr.A.Thiruvadi Kumar
^For Respondent : Mr.C.Mayil Vahana Rajendran
Additional Public Prosecutor
:JUDGMENT
On the complaint dated 07.04.2000, [EX-P3], given by Senthil Kumar [PW- 2], M.Raju, [PW-12], the Deputy Superintendant of Police, Vigilance and Anti- Corruption, Thanjavur, registered a case in Crime No.1 of 2000, under Section 7 of the Prevention of Corruption Act, 1988, [for brevity, "the Act"], against Anandaraj, District Manager, TAHDCO, Thanjavur.
2. The allegation in the complaint is that the complainant belongs to Dalit Community; that the complainant was studying third year B.Sc.Zoology in Poondi Pushpam College; that his father Srirangam [PW-3] has four acres of land and also had taken the land on lease for cultivation; that one year back, the complainant's father - Srirangam [PW-3] applied for grant of financial assistance with TAHDCO for the purpose of purchasing agricultural tiller; that the complainant received a letter on 06.04.2000 from TAHDCO office; that the complainant's father and two guarantors, by name, Rengaiyan [PW-5] and Govindaraj [PW-4] went to TAHDCO office and met the cashier - Ramasamy [PW-6]; that the cashier Ramasamy [PW-6] asked them to see Karuppaiyan [A-2], the Assistant Manager; that Karuppaiyan [A-2] saw the communication and said that for processing the loan, they should pay a bribe of Rs.3,000/- [Rupees Three Thousand only]; that thereafter, they saw Anandaraj [A-1] and told him that Karuppaiyan [A-2] is demanding Rs.3,000/-; that Anandaraj [A1] asked everybody to go out and told the complainant that they should give Rs.1,000/- to him and Rs.2,000/- to others; that he should come with the money on the next day and see him; that his father and he are not keen on paying any bribe and hence, the complaint.
3. After registration of the First Information Report, M.Raju [PW-12], the Deputy Superintendent of Police, summoned two independent witnesses namely, Balasubramanian [PW-10] and Arivudai Nambi [not examined] and demonstrated to them the trap procedure and prepared the pre-trap mahazar [EXP-4]. Thereafter, the trap party led by M.Raju [PW-12], the Deputy Superintendant of Police, Senthil Kumar [PW-2], the de facto complainant, Balasubramanian [PW-10], the shadow witness and Arivudai Nambi, the other witness went to TAHDCO office; that PW-2 and PW-10 were instructed to go inside the office; that PW-2 and PW-10 first contacted Karuppaiyan [A2], the Assistant Manager, who is said to have told PW-2 to pay the money to Thangavelu [A3], Junior Assistant and accordingly, Rs.2,000/- [Rupees Two Thousand only] was given to Thangavelu [A-3]. Thereafter, PW-2 and PW-10 went into the room of Anandaraj [A-1] and PW-2 handed over Rs.1,000/- to Anandaraj [A-1] and thereafter, gave the pre-arranged signal.
4. The police party came into the room of Anandaraj [A1] and accosted him. The trap party did not find Karuppaiyan [A2] in his seat. When the police party questioned Thangavelu [A3], he told them that he had thrown the money down. The money was picked up under a mahazar [EX-P9]. Anandaraj [A1] and Thangavelu [A3] were subjected to finger dip test in Sodium Carbonate test solution. The trap mahazar [EX-P9] was prepared and followed by other procedural formalities relating to arrest of the accused, sending the solution for chemical analysis etc. After obtaining sanction, dated 25.07.2001, [EX-P1] under Section 19 of the Prevention of Corruption Act, 1988, the Investigating Officer filed a final report in Special Case No.5 of 2001 before the learned Chief Judicial Magistrate/Special Judge at Kumbakonam against Anandaraj [A1], Karuppaiyan [A2] and Thangavelu [A3] for the offences under Sections 7 and 13[1][d] r/w 13[2] of the Act.
5. On the appearance of the accused, they were furnished with the copies of the charge sheet and relied upon documents under Section 207 of the Code of Criminal Procedure. Charges for the offences under Sections 7 and 13[1][d] r/w 13[2] of the Act were framed against the accused and they pleaded not guilty.
6. To prove the case, the prosecution examined 13 witnesses and marked 16 exhibits and 13 material objects. The Trial Court has also marked 6 documents as Court exhibits. On behalf of the defence, 3 exhibits were marked and no witness was examined. When the accused were questioned about the incriminating circumstances appearing against them under Section 313 Cr.P.C., they denied the same. After hearing either side and analyzing the evidence on record, the trial Court, by Judgment dated 14.03.2006 in Spl.C.No.5 of 2001 has acquitted Karuppaiyan [A2] and Thangavelu [A3], but, has convicted Anandaraj [A1] and sentenced him to undergo one year rigourous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months simple imprisonment for the offence under Section 7 of the Prevention of Corruption Act 1988 and to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.2,000/- in default to undergo six months simple imprisonment for the offence under Section 13[1][d] r/w 13[2] of the Act, challenging which, Anandaraj [A1] has filed the present appeal.
7. Heard Mr.A.Thiruvadi Kumar, learned counsel appearing for the appellant and C.Mayil Vahana Rajendran, learned Additional Public Prosecutor appearing for the respondent.
8. Senthil Kumar [PW-2], in his evidence before the Court has stated that his father Srirangam [PW-3] applied for financial assistance for the purchase of agricultural tiller; that his father received a communication dated 31.03.2000 [EX-P2], asking him to appear on 10.04.2000; that on 06.04.2000, he, along with his father and two guarantors, by name, Govindaraj [PW-4] and Rengaiyan [PW-5] went to the office of TAHDCO and met the cashier
- Ramasamy [PW-6]; that the cashier Ramasamy [PW-6] checked the papers and asked them to see the Assistant Manager - Karuppaiyan [A2]; that Karuppaiyan [A2] examined the documents and asked them whether they brought money; Karuppaiyan [A-2] told them that unless Rs.3,000/- [Rupees Three Thousand only] is paid as bribe, the loan will not be sanctioned; that all of them went into the cabin of Anandaraj [A1] and told him that Karuppaiyan [A2] is demanding Rs.3,000/-; that Anandaraj [A-1] said that they should pay Rs.1,000/- to him and Rs.2,000/- to Karuppaiyan [A2] and Thangavelu [A3]; that he asked them to come on the next day; that they left the office of TAHDCO and since they did not want to pay bribe, on 07.04.2000, Senthil Kumar [PW-2] alone went to the office of the Vigilance and Anti Corruption and gave a complaint [EX-P3] to the Deputy Superintendant of Police; that the Deputy Superintendant of Police arranged two trap witnesses namely, Balasubramanian [PW-10] and Arivudai Nambi [not examined] and demonstrated the trap procedure by smearing phenolphthalein in the currency notes brought by him and asking them to dip their fingers in Sodium Carbonate solution.
9. Senthil Kumar [PW-2] has further stated that after explaining the trap procedure, he went along with the trap party to the office of TAHDCO around 04.00 p.m., on 07.04.2000. Balasubramanian [PW-10] was directed to accompany Senthil Kumar [PW-2] and the other witness - Arivudai Nambi [not examined] was directed to remain with the Deputy Superintendant of Police. When Senthil Kumar [PW-2] and Balasubramaniam [PW-10] were proceeding to the office of TAHDCO, they were joined by Srirangam [PW-3], Govindaraj [PW-4] and Rengaiyan [PW-5]. It is the further evidence of Senthil Kumar [PW-2] that all of them went and approached Karuppaiyan [A2], who directed them to approach Thangavelu [A3]; that Thangavelu [A3] asked them whether they brought the money and they handed over Rs.2,000/- to Thangavelu [A3], who kept it inside a bag and kept the bag near the almirah; that they went into the room of Anandaraj [A1]; that Anandaraj [A1] asked whether they brought the money.
10. At this juncture, it may be relevant to extract verbatim the evidence of Senthil Kumar [PW-2] in this regard.
"mth; mtuJ miwapy; cl;fhh;e;jpUe;jhh;. 1-k; vjphp Mde;juh$; vy;yh lhf;Fbkz;l;fSk; jahh;bfa;Jtpl;lhh;fsh vd;W vd;idg;ghh;j;Jf;nfl;lhh;. ehd; Mkhk; vd;nwd;. gpd;dh; ehd; nfl;l gzk; bfhz;L te;jpUf;fpwPh;fsh vd;W vd;idg;ghh;j;J 1-k; vjphp Mde;juh$; nfl;lhh;. ehd; bfhz;L te;jpUf;fpnwd; vd;W brhy;yp vd; rl;ilapy; nky;ghf;bfl;oypUe;J U:.1000/- j;ij vLj;J Mde;juh$;-lk; bfhLj;njd;. mth; mtuJ ,lJifahy; ehd; bfhLj;j gzj;ij bgw;Wf;bfhz;L jdJ rl;ilapd; nky;ghf;bfl;oy; itj;Jf; bfhz;lhh;. gpwF 1-k; vjphpaplk; ehq;fs; ngha;tUfpnwhk; vd;W brhy;yptpl;L btspapy; te;njhk;. me;j 1-k; vjphp Mde;juh$; miwapy; ehd,; vd; jfg;gdhh;, IhkPd;jhuh; ,Uth; - nfhtpe;juh$;, buq;ifad;, rhl;rp - ghyRg;gpukzpad; Mfpnahh; cs;nd nghndhk;. vq;fis tprhhpj;j cld; Mde;juh$; vd;idjj;jtpu kw;wth;fis vy;yhk; btspapy; nghfr; brhy;yp tpl;lhh;. mg;nghJ vd;Dld; te;j ghyRg;gpukzpak; mUfhikapy; cs;s Id;dypd; gpd;g[wj;jpy; ,Ue;J ghh;j;Jf; bfhz;oUe;jhh;. ehd; mYtyfj;ij tpl;L btspna te;jt[ld; Vw;fdnt tpIpbyd;R mYtyfj;jpy; mwptWj;jpago Kfj;ij fh;r;rPg;ghy; Jilj;J ehd; milahsk; fhz;gpj;njd;. vd;Dld; te;j rhl;rp ghyRg;gpukzpad; vd;Dld; fPn:H te;J tpl;lhh;."
[emphasis supplied]
11. Thus, in the first portion of his examination in chief, he has stated that all the four went inside the room of Anandaraj [A1] and when he demanded the money, he gave Rs.1,000/- and after giving money, they told Anandaraj [A1] that we are all going out and saying so, they all went out. However, in the same breath, he has stated that all of them entered into the room of Anandaraj [A1] and Anandaraj [A1] told all the others to go out and asked Senthil Kumar [PW-2] alone to stay; that after the others had left the room, he saw Balasubramaniam [PW-10] standing near the window and watching the proceedings; that they came down stairs and gave the signal, after which, the police party came to the office and questioned the accused. He has further stated that the Deputy Superintendant of Police asked him to go away and accordingly, he, his father and the two guarantors left the place and that he did not know what happened thereafter.
12. It is also the case of the prosecution that Senthil Kumar [PW-2] was asked to go away and the further proceedings, like making the accused dip their fingers in Sodium Carbonate solution etc were all done in the presence of Balasubramaniam [PW-10] and Arivudai Nambi [not examined].
13. Srirangam [PW-3], the father of Senthilkumar [PW-2], has stated that he has land and that he applied for financial assistance with the office of TAHDCO for the purchase of tiller and that he received a communication dated 31.03.2000, pursuant to which, he went along with his son - Senthil Kumar [PW-2] and two Guarantors, by name, Rengaiyan [PW-5] and Govindaraj [PW-4] to the office of TAHDCO and met Karuppaiyan [A2], who demanded Rs.3,000/- and thereafter, they met Anandaraj [A1], the Manager of TAHDCO, who also reiterated the demand of Rs.3,000/- saying that Rs.1,000/- should be given to him and Rs.2,000/- should be given to others; that since he did not want to pay any bribe, he told his son - Senthil Kumar [PW-2] to lodge a complaint. Accordingly, his son, Senthil Kumar [PW-2] lodged the complaint on 07.04.2000 and around 4.00 PM in the evening, he joined his son at the office of TAHDCO along with two guarantors, by name, Govindaraj [PW-4] and Rengaiyan [PW-5]; that all of them went and met Karuppaiyan [A2], who directed them to hand over Rs.2,000/- to Thangavelu [A3]; that they handed over Rs.2,000/- to Thangavelu [A-3] and thereafter, went upstairs to the room of Anandaraj [A1]; that Anandaraj [A1] asked all the others to leave the room and therefore, he left the room; that his son - Senthil Kumar [PW-2] came out and said that Rs.1,000/- has been given to Anandaraj [A1]; that soon thereafter, the police party came, after which, he was asked to go away.
14. Balasubramanian [PW-10], in his evidence, has stated that he is an Engineer working in the Public Works Department and on 07.04.2010, on the instructions of the Superintending Engineer, he went to the office of the Vigilance and Anti-Corruption, where he met Raju [PW-12], the Deputy Superintendant of Police, one Arivudai Nambi [not examined] and Senthil Kumar [PW-2]; that the Deputy Superintendant of Police demonstrated the trap procedure and prepared the entrustment Mahazer [EX-P4]; that they all went to the office of TAHDCO, where he was asked to accompany Senthil Kumar [PW-2] and the others waited a little away; that at TAHDCO office, Srirangam [PW-3], Govindaraj [PW-4] and Rengaiyan [PW-5] also joined the trap party and together they all went and met Karuppaiyan [A2], who, in turn, directed them to meet Thangavelu [A3]; that Thangavelu [A3] received the amount of Rs.2,000/- and kept it in a bag near almirah and all of them went to the cabin of Anandaraj [A1]. At this juncture, it may be relevant to extract the evidence of Balasubramanian [PW-10] in this regard.
?mjd; gpwF khtl;l nkyhsh; miwf;F ehDk;, bre;jpy;FkhUk;, bre;jpy;Fkhu; jfg;gdhUk; brd;nwhk;. mq;fpUe;j khtl;;l nkyhsh; Mde;juh$; vd;id re;njfg;gl;L ( Kjy; vjphp ) vd;id kl;Lk; miwia tpl;L btspapy; ,Uf;f brhd;dhh;. ehDk; miwia tpl;L btspna $d;dy; mUnf epd;W cs;ns vd;d elf;fpwJ vd;W ghh;j;njd;. mg;nghJ Mde;juh$; bre;jpy;Fkhhplk; gzk; bfhz;L te;jPh;fsh vd;W nfl;lhh;. mjw;F mth; bfhz;L te;Js;sjhf Twpdhh;. bre;jpy;Fkhu; U:.1000/- bfhLj;jij Mde;juh$; jdJ ,lJ ifapy; thq;fp jd; rl;il igapy; itj;Jj; bfhz;lhh;.?
15. However, in the cross examination, which was conducted on the very same day, he has stated as follows:-
?1-tJ vjphp vd;id re;njfg;gLk;go ghh;j;jgpwF bre;jpy;Fkhu; vd;id btspapy; ,Uf;f brhd;dhh;. mjdhy; ehd; btspapy; brd;W tpl;nld;.?
16. In this appeal, we are not concerned about the case of Karuppaiyan [A2] and Thangavelu [A3], because, the trial Court had acquitted them on the ground that the prosecution had not adduced satisfactory evidence with regard to their identities and the state has also not filed any appeal against their acquittal.
17. The short point, that falls for consideration in this appeal, is whether the prosecution had satisfactorily proved the demand that is said to have been made by Anandaraj [A1]. In Mukhatiar Singh [since deceased ] through his legal representative vs. State of Punjab [2017 8 SCC 136], the Supreme Court has reiterated the law relating to demand of illegal gratification and it may be necessary to extract certain paragraphs therefrom.
"13. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
14. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
?23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.? (emphasis supplied)?
18. Bearing the aforesaid principle in mind, it is now imperative to analyze the evidence on record. In this case, Senthilkumar [PW-2], the de facto complainant, turned hostile during cross-examination. It may be necessary to state that Senthilkumar [PW-2] was examined in chief on 26.11.2002 and he was not cross-examined on the same day. He was cross- examined on 03.12.2002, viz., after eight days. When he was shown the complaint [EX-P3] that was given by him, he stated that it was given on the dictation of the police. Two guarantors, by name, Govindaraj [PW-4] and Rengaiyan [P.W.5], who had gone along with Senthil Kumar [PW-2] and Srirangam [PW-3], turned hostile at the threshold itself. Srirangam [PW-3] did not turn hostile. Balsubramanian [PW-10], shadow witness] did not turn hostile to the case of the prosecution.
19. Mr.C.Mayil Vahana Rajendran, learned Additional Public Prosecutor submitted that Senthilkumar [PW-2] supported the prosecution case in chief and 8 days later, when he was cross-examined, he has turned hostile, which shows that he would have been won over by the accused and therefore, his evidence should not be completely ignored and reliance can be placed on the examination in chief.
20. This Court is in agreement with the submission of the learned Additional Public Prosecutor, inasmuch as Section 154[2] of the Indian Evidence Act, 1872, permits such a course. Now, the question is, does the chief-examination of Senthilkumar [PW-2] inspire the confidence of the Court with regard to the demand, that is said to have been made by Anandaraj [A1] on 06.04.2000?. In the cross-examination of the prosecution witnesses, the defence have marked an important document, namely, EX-D1. EX-D1 is a sanction letter from TAHDCO, dated 30.08.1999, which clearly states that the financial assistance has been sanctioned to Srirangam [PW-3] and that he should deposit Rs.4,450/- by way of Demand Draft with the District Manager, TAHDCO and execute a promissory note and the other documents, mentioned therein. Senthilkumar [PW-2] and his father Srirangam [PW-3] have admitted the receipt of EX-D1. They have not shown this either to the Inspector of Police or to the Deputy Superintendant of Police at the time of giving the complaint.
21. It is the case of Senthilkumar [PW-2] and Srirangam [PW-3] that they, once again, received a communication dated 31.03.2000 from TAHDCO asking them to come on 10.04.2000. This communication has been marked as EX- P2. The cover, in which, the communication came, has also been marked along with EX-P2. On a mere perusal of the cover, two postal seals, namely, seal of Saliamangalam Post office and Seal of Palliyur Post Office are visible. Both the seals bear the date as '06.04.2000'. Palliyur is the village from where the de facto complainant hails. Thus, from the postal cover, it is obvious that the communication had first gone to Saliamangalam Post office and from where, it has gone to Palliyur village Post Office, on the same day. 06.04.2000 was Thursday and a working day.
22. Mr.A.Thiruvadikumar, learned counsel for the accused submitted that Srirangam [PW-3] could not have gone to the office of TAHDCO to meet the accused on 06.04.2000, because, the letter itself would have reached the village in the afternoon and it would have been impossible for him to go to TAHDCO Office and meet the officials there. The learned counsel further submitted that when the communication dated 31.03.2000 [EX-P2] states that the parties need to come only on 10.04.2000, it is not known as to why Senthilkumar [PW-2], Srirangan [PW-3] and the two guarantors went to TAHDCO office on 06.04.2000. It is his further contention that the communication dated 31.03.2000 [EX-P2] and the communication dated 30.08.1999 [EX-D1] have very many differences in the very content itself. He also submitted that the communication dated 30.08.1999 [EX-D1] clearly states that the loan has been sanctioned and on the payment of Rs.4,450/-, the loan will be disbursed, after execution of promissory note and other documents mentioned therein. Strangely, the communication dated 31.03.2000 [EX-P2] does not speak anything about the sanction of loan and the payment of margin money of Rs.4,450/-, but, merely states that Srirangam [PW-3] should come to the office on 10.04.2000. While so, he asked "why should all of them including the two guarantors go to TAHDCO Office on 06.04.2000?".
23. There appears much force in the said submission of Mr.A.Thiruvadikumar, learned counsel, inasmuch as SenthilKumar [PW-2] and Srirangam [PW-3] have completely suppressed the communication, dated 30.08.1999, [EX-D1] and this was proved only in the cross-examination of the witnesses by the defence. Yet another aspect, which requires to be considered is that Senthilkumar did not even care to produce the communication dated 31.03.2000 [EX-P2], which his father received on 06.04.2000, to the Deputy Superintendant of Police at the time of giving the complaint.
24. M.Raju [PW-12], the Deputy Superintendant of Police, who registered the First Information Report, has stated that though in the complaint given by Senthilkumar [PW-2], there is a reference to this communication, yet, he did not ask him to produce the communication. It may be necessary to extract his evidence verbatim, which reads as under:-
?nkw;go g[fhhpy; 2k; gf;fj;jpy; khtl;l nkyhsh; mYtyfj;jpy; ,Ue;J te;j fojj;jpd;; tpguk; gw;wp Fwpg;gplg;gl;Ls;sJ. ehd; ,e;j g[fhh; kDit goj;Jg; ghh;j;njd;. nkw;go fojk; gw;wpa tpguk; ehd; nfl;nld;. mjw;F bre;jpy;Fkhu; mg;nghJ me;j fojj;ij MIh; gLj;jtpy;iy.?
25. Senthil Kumar [P.W.2] was a 20 year old college student, when he went to the office of the Vigilance and Anti-Corruption Department to lodge the complaint against the accused and his father - Srirangam [PW-3], who is the actual applicant, did not accompany him. According to him, he went alone. He told the Deputy Superintendant of Police that his father applied for financial assistance and in connection with the same, his father had received a communication, based on which, he went along with his father to the office of TAHDCO on 06.04.2000 and met the officials, who demanded bribe from them. Thus, it is not the case of Senthilkumar [PW-2] that he applied for the loan. It is his specific case that his father applied for the loan. What surprises this Court is, the conduct of the Deputy Superintendant of Police in not even asking Senthilkumar [PW-2] as to why his father had not accompanied him or why he had not brought the communication dated 31.03.2000 [EX-P2]?. Had he seen both EX-P2 and EX.D1, it would have been clear to the Deputy Superintendant of Police that the assistance had already been sanctioned vide EX.D1, way back on 30.08.1999, but, strangely, EX.-P2 requires them to come to TAHDCO office only on 10.04.2000. The question of demand of bribe will arise only if financial assistance has not been sanctioned. To reiterate, EX- D1 shows that the assistance had already been sanctioned and that Srirangam [PW-3] has to only pay the margin money of Rs.4,450/- to the Bank and collect the loan.
26. In the complaint, [EX-P3] given by Senthilkumar [PW-2], which formed the basis of the FIR, he has stated that he went along with his father and two guarantors to the cabin of Anandaraj [A-1] on 06.04.2000 and Anandaraj [A-1] asked everyone, except him, to move out. It may be necessary to extract that portion of the complaint, wherein he has put the words spoken to by Anandaraj [A-1], which read as under:-
?rhp vd;W ehq;fs; khtl;l nkyhsh; Mde;juhiI nghy; ghh;j;njhk;. tptuk; nfl;lhh;. tptuk; brhd;ndhk;. Mgpprpy; U:.300 gzk; nfl;gjhf ehd; brhd;ndd;;. clnd mth; kw;wth;fis btspapy; nghf brhy;yptpl;L vd;dplk; ?vdf;F jdpahf U:.1000 bfhL. Mgprpy; cs;sth;fSf;F U:.2000 bfhL?vd;W brhy;yp ,d;W 07.04.2000-k; md;W kjpak; gzj;JlDk; jghypy; cs;s tptuq;fSlDk; te;J mYtyfj;jpy; ghh;f;Fk; go brhd;dhh;.?
27. From this complaint, it appears that Anandaraj [A1] had asked all the others, including Srirangam [PW-3], the applicant, to go out of his cabin and demanded bribe of Rs.1,000/- from a 20 year old boy. Even if we accept this statement of Senthilkumar [PW-2] in the complaint [EX-P3] as true, the evidence of SenthilKumar [PW-2] and his father Srirangam [PW-3] appears otherwise. They have stated that when they all went and met Anandaraj [A1] in his cabin on 06.04.2000, he demanded bribe amount of Rs.1,000/- from them. They did not say that they were all asked to go out and only Senthil Kumar [PW-2] was asked to remain in the cabin.
28. The learned Additional Public Prosecutor submitted that the contradictions between the averments in the complaint and the evidence of Senthilkumar [PW-2] ought to have been elicited by adopting the procedure envisaged under Section 145 of the Indian Evidence Act, 1872, by confronting Senthilkumar [PW-2], with his previous statement.
29. This Court is in agreement with the submission of the learned Additional Public Prosecutor on this aspect. The averment in the complaint is a previous statement and the same can be used either to corroborate or to contradict the witness in the witness box. If the witness is to be contradicted, that portion of the previous statement, which is not in consonance with his evidence before the Trial Court, should be brought to his attention. In this case, when the complaint given by Senthilkumar [PW-2] was shown to him in the cross-examination, he denied the contents itself and stated that it was written by him on the dictation of the police. Therefore, the defence put in a very piquant situation, where they were not able to bring on record the contradictions, since, Senthilkumar [PW-2] disowned his previous statement completely. As stated earlier, the complaint given by Senthilkumar [PW-2] can be used either to contradict him or to corroborate his Court testimony.
30. In this case, the testimony of Senthilkumar [PW-2] as to who were all there in the cabin of Anandaraj [A-1] on 06.04.2000, when the demand was made is not corroborated by the complaint [EX-P3]. This Court is not consciously using the expression that the averments in the complaint are contradicting the testimony in the witness box, but, however, this Court is perfectly justified in saying that the testimony of Senthilkumar [PW-2] is not corroborated by his complaint [EX-P3].
31. Mr.A.Thiruvadikumar, learned counsel for the appellant, submitted that Senthilkumar [PW-2] did not go to TAHDCO office on 06.04.2000, as could be seen from the evidence of Ramasamy [PW-6], cashier in TAHDCO. PW-6, Ramasamy, cashier, has clearly stated that on 06.04.2000, Srirangam [PW-3] alone came with two guarantors and that he did not bring any documents and so, he asked him to meet Karuppaiyan [A2].
32. Now, coming to the event on 07.04.2000, [trap day], this Court has extracted two continuous passages from the chief-examination of Senthilkumar [PW-2], wherein he first said that all of them entered into the room of Anandaraj [A-1] and Anandaraj [A-1] demanded the bribe and after remembering that he had meandered, he deposed that Anandaraj [A-1] asked everyone to go out, except himself and asked him whether he has brought the bribe money. Therefore, the evidence of Senthilkumar [PW-2], in his examination-in-chief, with regard to the alleged demand made by Anandaraj [A-1], on 07.04.2000, does not inspire the confidence of this Court.
33. The decoy witness - Balasubramaniam [PW-10], in the cross- examination has stated that it was only Senthilkumar [PW-2], who had asked him to go out of the cabin of Anandaraj [A-1] and that he went and stood behind the window and watched the proceedings. The rough sketch prepared by the police shows that there is a window behind the seat of Anandaraj [A-1].
34. Admittedly, the cabin of Anandaraj [A1] is in the first floor. Chinnadurai [PW-8], Assistant in TAHDCO has stated in the cross-examination that the window is situated on the western side and is behind the seat of Anandaraj [A1] and after 03.00 p.m., there will be direct sun light through the window. It is the case of the defence that the said window will always be closed, because, in the month of April, there will be sunlight after 03.00 p.m, which will make the cabin hot and hence, there would not have been any possibility for Balasubramanian [PW-10] to stand near the window and watch the proceedings.
35. Venkatachalam [PW-11], the Manager of State Bank of India, has stated that for the financial assistance sought by Srirangam [PW-3], he had to pay Rs.4,450/- as margin money. Since he did not pay the said amount in time, the cost of the tiller increased and he had to pay Rs.7,364/-, which he paid on 13.03.2001 and availed the financial assistance, which is after the trap on 07.04.2000.
36. Thus, it is obvious that Srirangam [PW-3] had not paid the margin money of Rs.4,450/- in time and only after the trap proceedings, he has paid money on 13.03.2001. In the cross- examination of Venkatachalam [PW-11], the Manager of State Bank of India, it has been elicited that the loan application of Srirangam [PW-3] for financial assistance from TAHDCO was stalled pursuant to an advocate notice, dated 15.05.1999, [EX-X1], issued by one Sabapathy claiming himself to be the son of Srirangam [PW-3] born through one Anjammal. It appears that PW-3 had two wives and had a son by name, Sabapathy, born through one Anjammal and Senthilkumar [PW-2] was born through a different wife. Thus, it is obvious that Srirangam's [PW-3] application for financial assistance had faced road blocks not from the TAHDCO officials, but, by his own family members.
37. In the result, this Court is of the view that the prosecution had failed to prove the demand satisfactorily and the evidence on record does not pass muster the law laid down by the Supreme Court in Mukhtiar Singh, [supra].
38. In the result, the Judgment dated 14.03.2006, made in Special Case No.5 of 2001, on the file of the learned Special Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam. is set aside; the Criminal Appeal is allowed and the accused Anandaraj [A-1] is acquitted of the charges framed against him. Fine amount, if any, paid by the appellant, shall be refunded to him. Bail bond and sureties, if any executed by him, shall stand terminated.
To
1.The Special Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam.
2.The Deputy Superintendant of Police, Vigilance & Anti-Corruption, Thanjavur.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.