Madras High Court
K. Shanmugam vs The State on 20 December, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.12.2018
CORAM:
THE HONOURABLE Mr.JUSTICE P.VELMURUGAN
Crl.A.(MD)No. 201 of 2012
K. Shanmugam ... Appellant/ Sole Accused
Vs.
The State,
Rep. by its Inspector of Police,
Vigilance and Anti Corruption,
Trichy.
[Crime No.2 of 2008] ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of
Criminal Procedure Code, to set aside the judgment dated
05.09.2012 passed in Special Case No.124 of 2011 on the file
of the Special Court for Trial of Cases under Prevention of
Corruption Act, Tiruchirapalli.
For Appellant : Mr.M. Ajmalkhan, Senior Counsel
for M/s.S.Doraisamy
For Respondent : Mr.M.Chandrasekaran
Additional Public Prosecutor
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http://www.judis.nic.in
2
JUDGMENT
The Criminal Appeal has been filed seeking to set aside the judgment dated 05.09.2012 passed in Special Case No.124 of 2011, on the file of the Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirapalli.
2. The case of the prosecution is as follows :
The appellant was working as Senior Draftsman of Taluk Office, Aravakurichi. On 02.01.2008, the Complainant/P.W.2/Vadivel had submitted a petition before the Taluk Office, Aravakurichi seeking a copy of Patta, Chitta, Adangal and FMB for Survey No.508/1-A and 511/1-B and also a copy of FMB for Survey No.512 and 514/6. On 07.01.2008 at about 04.00 p.m., the P.W.2/Vadivel went to the Aravakurichi Taluk Office and met the appellant, the Senior Draftsman, Aravakurichi Taluk Office and enquired about his petition and also P.W.2/Vadivel explained about his urgency for the purpose of those documents. The appellant informed P.W.2 /Vadivel that if he need the same urgently the appellant had demanded a sum of Rs.750/-(Rupees Seven Fifty Only)as bribe. P.W.2 /Vadivel requested the appellant to issue the same without expecting any money, but the appellant insisted http://www.judis.nic.in 3 the payment of bribe for issuing the same. P.W.2 /Vadivel is not willing to give bribe money to the appellant.
3. On 08.01.2008 , the appellant as a public servant, misused his official capacity, demanded and accepted bribe money of Rs.750/-as illegal gratification from P.W.2/Vadivel. Therefore, the appellant had committed an offences under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
4. The complainant was not willing to give illegal gratification, approached the vigilance and anti-corruption cell at Tiruchirppalli on 08.01.2008 and gave a complaint. P.W.11/Inspector of Police, Vigilance and Anti-corruption cell at Tiruchirappalli. The investigating officer who received the complaint/Ex.P.2 and registered the same as FIR/Ex.P.11 in which P.W.2's signature/Ex.P.3 was obtained. The Investigating officer had also sent a representation to depute government officials for the purpose of trap proceedings to be conducted under the provisions of the Prevention of Corruption Act. P.W.3/Ariyamuthu, Junior Assistant, Office of the Labour Welfare and another witness Thiyagarajan, Junior http://www.judis.nic.in 4 Assistant, Health and Family Welfare have also present. P.W.11/Inspector of Police introduced the witnesses to the P.W.2/Vadivel and the witnesses were given a copy of the complaint and FIR and directed to read the contents of the same, on ascertaining the truth in the FIR, P.W.11 made sure that the complainant had brought the demanded amount of Rs.750/-. P.W.2/Vadivel produced an amount of Rs.750/- (Rs.500 x 1, Rs.100 x 2 and 50 x 1). P.W.11 received the said currencies through the Head Constable by name Nagarajan.
5. Thereafter, P.W.11/Investigating Officer had conducted the demonstration of phenolphthalein test in the presence of witnesses and also explained about the significance of phenolphthalein test.
6. P.W.11 directed the P.W.2/Vadivel and P.W.3/Ariyamuthu to meet the appellant in his office. P.W.11 also instructed to P.W.2/Vadivel, not to touch the money until the demand was made by the appellant. The entire proceedings were recorded in Ex.P.4/Entrustment mahazar in which P.W.2, P.W.3, witness Thiyagarajan, Police Constable Sathyamurthy and P.W.11/Investigating officer were singed. http://www.judis.nic.in 5
7. Then, the complainant, P.W.11 and other witnesses were proceeded to the office of the appellant in two police vehicles and reached Aravakurichi at about 05.30 p.m., and the vehicles were stopped at bye-pass road, Nangathiyar grounded bridge and the P.W.2 & P.W.3 were dropped and they were asked to meet the appellant. The appellant was in his seat and P.W.2 enquired about his FMB, the appellant asked him as to whether he brought the money and P.W.2 said 'yes' and at that time the appellant asked about the PW.3 and for which P.W.2 told that he came with him. The appellant enquired as to whether he is relative to the P.W.2 and P.W.2 said no. Thereafter, P.W.2 requested the appellant to issue the FMB and the appellant left his seat and came to the gate of the Taluk Office, P.W.2 & P.W.3 followed him. Near to the Taluk Office, there was a board indicating as Taluk Supply Office and no one was available there. The appellant went inside, asked the P.W.2 & P.W.3 to come inside and required the P.W.2 to hand over the money. P.W.2 handed over the phenolphthalein tainted money Rs.750/- and the same was received by the appellant through his right hand after counting the appellant kept the same on the right hand side, back side pant pocket and asked the P.W.2 to come on the http://www.judis.nic.in 6 next day for getting the required certificate. Then, P.W.2 & P.W.3 on coming out of the office at about 06.00 p.m., as advised, the complainant gave a pre-arranged signal. The appellant was identified by the P.W.2 with P.W.11. P.W.3 also corroborated the evidence of P.W.2. Then, P.W.11/Investigating officer instructed the police to prepare sodium carbonate solution separately in two glasses and directed the appellant to dip his right and left hand fingers on the solutions and on such dipping the solution turned pink in colour. Then the solutions were poured in two bottles were sealed and labeled as Shanmugam 'R' and 'L' and the same were marked as M.O.2 & M.O.3. The above said incident were noted in Ex.P.7/Observation mahazar in which the official witness and P.W.11 had signed. Thereafter, M.O.1 series were recovered from the appellant and the numbers of the same were verified with Ex.P.4 and were found tallied. Thereafter, the right hand side, back side pocket portion of pant of the appellant M.O.5 was subjected to phenolphthalein test and it proved as positive and the same was poured in a separate bottle under M.O.4. Thereafter, Ex.P.6/Seizure mahazar was prepared and the same was signed by P.W.11/Investigating Officer and the official witnesses, a copy of the same was http://www.judis.nic.in 7 issued to the appellant and obtained his signature. P.W. 11/Investigating Officer also recovered the FMB copy issue Register/Ex.P.9 and also recovered Ex.P.12/Attendance Register containing the name of the appellant in Sl. No. 35/Ex.P.13. P.W.11/Investigating Officer also prepared Ex.P. 14/Rough Sketch.
8. P.W.12/P.Govindasamy/Inspector of Police, Vigilance and Anti Corruption took up this case for further investigation. On 09.01.2008, he examined witnesses and recorded their statements and he sent M.O.2, M.O.3 and M.O.4 for chemical examination. P.W.11 examined P.W.10/chemical examiner and recorded statement. P.W.10/Chemical Examiner had issued Ex.P.10/chemical report. P.W.12/B. Govindasamy, Deputy Superintendent of Police also examined P.W.4 Umavathi, Sub-registrar collected Ex.P.8/copy of sale deed and also examined P.W.5/Palanisamy the adjacent owner of P.W.2 and P.W.6/Sellamuthu, VAO, P.W.7/Kesavan, Junior Assistant who received Ex.P.5/Application for copy of FMB and after affixing the seal and handed over the same to P.W.2 to hand over the same with the appellant. P.W.12 also examined P.W.9/Mathivanan, http://www.judis.nic.in 8 Deputy Tahsildar, Taluk Office, Aravakurichi during the relevant time who produced Ex.P.9 the field copy of map issuing register to P.W.12/B. Govindasamy. Then, P.W.13/Prasanna Venkatesh/Inspector of Police took up this case for further investigation. He examined and recorded the statement of P.W.1/Jesudoss, the Assistant Director of Land Survey. He also obtained Sanction Order/Ex.P.1 from P.W.1 to prosecute against the appellant. On completion of investigation, P.W.13/Prasanna Venkatesh, Inspector of Police, Vigilance and Anti Corruption Wing, Tiruchirapalli, filed charge sheet against the appellant, for the offences under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
9. The learned Special Judge/Special Court for trial of Cases under Prevention of Corruption Act, Tiruchirapalli, after completing the prosecution evidences, the incriminating evidence was put to the appellant under Section 313(1)(b) of Cr.P.C. The appellant denied the same as false evidence. On the side of appellant, D.W.1 was examined and Ex.D.1 was marked. After considering the oral and documentary evidence, the trial Court found that the appellant was guilty and http://www.judis.nic.in 9 convicted him for the offence under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced him. Aggrieved against the order of conviction and sentence passed by the trial Court, the appellant has preferred the present appeal.
10. Heard the learned Senior counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the available records.
11. The learned Senior counsel for the appellant would submit that on 07.01.2018, the appellant was not available in the Office and the appellant has gone to Karur and attended meeting. The main ingredients of the demand was not proved and mere recovery of money itself is not sufficient and the demand and acceptance have not been proved in this case. The acceptance of appellant was abusing and therefore, recovery of money is not sufficient. He would further submit that, in order to disprove the case of the prosecution and to prove the defence taken by the appellant, D.W.1/Kulandaivel was examined who worked as Deputy Inspector of Land http://www.judis.nic.in 10 Survey Office at Aravakruichi, during January 2008 and during his evidence Ex.D.1 was marked and as per Ex.D.1, the daily working report of the Senior Inspector of Survey viz., Shanmugam. He would also submit that, as per entries on 07.01.2008, the appellant was not in his office. He would further submit that the appellant went to Karur and he has not subsequently come to the office on the day through out and could not be made any demand on 07.01.2008 has also not proved by the prosecution through oral and documentary evidence. He would also submit that the appellant was not a competent person to issue the FMB sketch. He would further submit that the Court below has presumed that the money was received towards illegal gratification without any legal hindrance. He would also elaborately relied on various evidences of the prosecution witnesses and pointed out the discrepancies and the contradictions in proving the case of the prosecution. He has also placed reliance on various Judgment. He would further submit that the Investigating Officer was not competent person to investigate the offence and the officer in the cadre of Deputy Superintendent of Police has to investigate the offences under Prevention of Corruption Act. http://www.judis.nic.in 11
12. On the contrary, the Additional Public Prosecutor would contend that the Inspector of police, Vigilance and Anti corruption cell are authorised to investigate on the directions of the Deputy Superintendent of Police under Section 17 of the Act. He would also contend that the prosecution has proved the previous demand from the evidence of P.W.2 and it is made clear that on 07.01.2008, P.W.2 went to the Office of Aravakurichi Taluk, the appellant made a demand. P.W.4 and P.W.5 had also spoken about the procedures of the making application and P.W.9 has clearly stated that the attendance register and also on the particular day the appellant was present in the Office. He would also contend that there is no documentary evidence except D.W.1 to prove that the appellant left on a particular date i.e., on 07.01.2008 the appellant was not present in the Office and therefore, D.W.1 is only after thought. He would further contend that the defence taken by the appellant has not been established in the manner known to law and the tainted money recovered from the appellant is only a bribe money. He would further contend that it is for the appellant to rebut the presumption that the tainted money recovered is not an illegal gratification or legal http://www.judis.nic.in 12 remuneration. Therefore, under these circumstances, the appellant has failed to prove his defence. The trial Court has rightly discussed each and every aspects and also given cogent reason for rejection of the defence case.
13. The main contention of the learned Senior Counsel for the appellant raised that on 07.01.2008 the appellant had demanded bribe from P.W.2 was not possible because the appellant was not in the office at the time of the alleged demand. On the side of the appellant, D.W.1/Kulanthaivel, the District Inspector of Land Survey, Namakkal District who worked as Deputy Inspector of Land Survey Office at Aravakurichi was examined as D.W.1. D.W.1 stated that the appellant was working as Senior Inspector of land survey in his Section and Ex.D.1 is the document pertaining to the daily working report of the Senior Inspector of Survey viz. Shanmugam. The details of work are entered in Ex.D.1 by the appellant from 01.01.2008 to 08.01.2008. As per the entries on 07.01.2008, the Additional Director of Land Survey came for inspection at Karur and for the said inspection, the appellant has come at 03.00 p.m. On behalf of Surveyors Association he submitted their grievances before http://www.judis.nic.in 13 the Additional Director and at 06.00 to 06.30 p.m., the meeting was completed. Till the completion of the meeting, the appellant was also available with D.W1. The evidence of D.W.1 and Ex.D.1 show that the appellant was present on the day of trap in between 03.00 p.m., to 06.30 p.m. only at Karur. Further on reading of the entire record, P.W.2 has clearly stated that on 07.01.2008, the appellant made demand in his office at 03.00 p.m. But this fact is only a serious dispute. On reading of the D.W.1 and Ex.D.1, when himself submitted in this regard, the defence taken by the appellant filed W.P. (MD) No.212 of 2011 before this Court and ordered on 21.02.2011 and the appellant has not specifically taken this defence on 07.01.2018 either in Karur or he was not present in his Office and also it is not a case of the defence that when D.W.1 was examined by the Investigating officer during the investigation, D.W.1 has not produced Ex.D.1 before the investigating officer. Therefore, as per contention of the appellant, D.W.1 was examined during the investigation by the Investigating Officer and he was not examined as prosecution witness. But, D.W.1 has not produced Ex.D.1 or brought to the knowledge of the Investigating officer despite he was examined by the investigating officer during the investigation. Therefore, the http://www.judis.nic.in 14 evidence of the DW1 will not be helpful to the case of the appellant.
14. As per the evidence of P.W.2, on 07.01.2008 the appellant demanded money as bribe. On 08.01.2008 at 17.45 hrs and 18.00 hrs, the appellant being a public servant, misused his official capacity, demanded and accepted bribe money of Rs.750/-as illegal gratification from P.W.2/Vadivel. P.W.2 evidence was corroborated by P.W.3. From the evidences of P.W.2 & P.W.3, the demand and acceptance have been proved. P.W.11/Investigating Officer/Trap Laying Officer conducted search in the presence of witnesses proved that recovery and conducted phenolphthalein test in the hands of appellant and also the evidence of P.W.10/Chemical Examiner and Ex.P.10 report of P.W.10 found that M.O.2 to M.O.4 solutions were contained the chemical element of phenolphthalein and Sodium carbonate. In this case, demand, acceptance and recovery have been clearly proved by the prosecution by way of evidences and material objects.
15. On reading of the evidence of D.W.1, this Court finds that it is only after thought. Therefore, under these http://www.judis.nic.in 15 circumstances, this Court finds that the defence taken by the appellant has not been proved in the manner known to law. The prosecution has proved the case in the manner known to law and the Court finds that there is no reason to accept the evidence of D.W.1. Therefore, the defence taken by the appellant, during 313 of Cr.P.C., proceedings is not acceptable by this Court. Therefore, under these circumstances, the contention of the learned Senior counsel for the appellant is not acceptable and once he has stated that recovery of money has not been substantiated. Therefore, in this case, on careful reading of the oral and documentary evidence, this Court finds that the prosecution has proved its case beyond reasonable doubt. The tainted money which was recovered from the appellant is a bribe money and not a legal remuneration. No doubt, the said legal presumption is rebuttable one. The appellant/accused can always rebut the presumption in the manner known to law. In this case, this Court finds that the appellant has not proved his defence in the manner known to law and also the Section 20 of the Prevention of Corruption Act come into play. From the evidences of P.W.2, P.W.3 & P.W.11, this Court finds that the prosecution has proved its case and presumption under Section 20 of the Act drawn and http://www.judis.nic.in 16 the same has not been rebutted in the manner known to law. Therefore, authorities cited by the learned Senior Counsel for the appellant are not applicable and there is no quarrel with the legal preposition laid down in the citations referred to by the learned Senior counsel and the facts and circumstances of the present case and the facts and circumstances of those case are entirely different and hence not made applicable to the case on hand.
16. Once, a man comes into a public life, he has to design his life within the source of his income. Particularly, in the corruption case, this Court is not inclined to show any leniency. This is very serious offence in nature and it is a serious disease. It should be cured immediately without any further delay.
17. On a perusal of the records and the Judgment of the trial Court, this Court finds no sufficient sound grounds and reasons to set aside in the Judgment of conviction and sentence dated 05.09.2012 in Spl. Case No.124 of 2011 on the file of the learned Special Judge/ Special Court for trial of http://www.judis.nic.in 17 Cases under Prevention of Corruption Act, Tiruchirapalli and the same does not warrant any interference.
18. In the result, the Criminal Appeal stands dismissed, by confirming the judgment of conviction and sentence dated 05.09.2012 in Spl. Case No.124 of 2011 on the file of the learned Special Judge/ Special Court for trial of Cases, Tiruchirapalli. The trial Court is directed to take effective steps to secure the custody of the appellant/accused to undergo the remaining period of sentence.
20.12.2018 ksa Index : Yes/No Internet : Yes /No To
1. The Special Court for Trial of Cases under Prevention of Corruption Act, Tiruchirapalli.
2. The inspector of Police, Vigilance and Anti Corruption Wing, Tiruchirapalli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 18 P.VELMURUGAN, J., ksa Crl.A.(MD)No. 201 of 2012 20.12.2018 http://www.judis.nic.in