In the High Court of Judicature at Madras Dated : 15.07.2009 Coram: The Honourable Mr.Justice M.JEYAPAUL Criminal Appeal No.361 of 2006 --- C.Rukmangathan .. Appellant vs. State, rep. by Deputy Superintendent of Police Anti Corruption and Vigilance Cuddalore (Crime No.4/Ac/2000/CL). .. Respondent Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, against the judgment dated 27.03.2006 in Special Case No.1 of 2001 on the file of the learned Chief Judicial Magistrate, Cuddalore. For Appellant : Mr.S.Ashok Kumar, Senior Counsel for Mr.Malath Devapriyam For Respondent : Mr.N.Kumaran Govt. Advocate (Crl. Side) --- J U D G M E N T
This is an unfortunate case, where the appellant, who served as a Commercial Tax Officer, was convicted for an offence under Section 7 of the Prevention of the Corruption Act, 1988 and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- with usual default sentence even when all the material witnesses were turned hostile to the version of the prosecution.
2. On the side of the prosecution, 16 witnesses were examined and 30 exhibits and 11 material objects were marked. Neither oral nor documentary evidence was produced on the side of the accused.
3. P.W.2 had started oil business in collaboration with his partner P.W.3 about three months prior to the occurrence. P.W.2 having sought advise from his auditor as to the formalities to be complied with for securing registration certificate under the TNGST Act, approached the accused with the necessary application. The accused went along with P.W.6 to the business premises of P.Ws.2 and 3 and having inspected the account books maintained by P.Ws.2 and 3, directed P.W.2 to get a deposit for a sum Rs.5,000/- for issuing the necessary certificate sought for by P.W.2. P.W.2 felt that the deposit amount sought for by the accused was on the higher side and he informed the accused that only a deposit of Rs.2,000/- would be required for obtaining the certificate, but the accused insisted that the deposit for Rs.5,000/- should be made for processing the application seeking certificate under the TNGST Act.
4. P.W.2 went along with P.W.3 to the office of the accused and having submitted the demand draft for Rs.5,000/- marked as Ex.P5 and waited for a few days for issuance of the certificate. Such issuance of the certificate was belated, he went straight to the Inspector of Police, P.W.15 and as per his instructions, the complaint Ex.P6 was drafted. Thereafter, P.W.15 asked P.W.2 to bring a sum of Rs.1,500/- to trap the accused. When the said amount was brought by P.W.2 to the office of P.W.15, P.W.15 demonstrated phenolphthalein test in the presence of P.Ws.2, 4 and 7. Thereafter, P.W.2 went along with P.W.4 as instructed by P.W.15 to the office of the accused, where P.W.2 paid Rs.1,500/- to the accused. P.W.2 gave signal to P.W.15, who came along with P.W.7. Having introduced himself and the other witnesses present over there, P.W.15 prepared sodium carbonate solution and asked the accused to dip his hands which turned pink. The sodium carbonate solution was collected and the same was sent for chemical examination. The accused was arrested in connection with this case. P.W.15 investigated the matter and thereafter, P.W.16 having completed the investigation, laid the final report as against the accused for an offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
5. Learned Chief Judicial Magistrate, Cuddalore, having adverted to the evidence on record, chose to acquit the accused for an offence under Section 13(2) read with 13(1)(d) of the Act, but convicted the accused under Section 7 of the said Act and sentenced him as detailed supra.
6. The learned Senior Counsel appearing for the appellant/accused would submit that the star witnesses viz. P.Ws.2 and 4 have turned hostile to the case of the prosecution. It is his submission that none of the witnesses has spoken to the demand of bribe as alleged by the prosecution. When there is no demand, mere payment to the accused would not constitute an offence under the Prevention of Corruption Act, he would submit.
7. Per contra, the learned Government Advocate (Criminal Side) would contend that the trial Court has rightly returned a verdict of conviction under Section 7 of the Act, based on the payment made by P.W.2 to the accused.
8. P.W.2 is the complainant in this case. He has spoken to the fact that the accused only insisted upon a deposit for a sum of Rs.5,000/- before ever issuing the certificate under the TNGST Act. He had come out with an affirmative answer that no demand of bribe was made by the accused to him. The interaction was only with reference to the deposit amount sought to be made for issuance of the certificate under the TNGST Act, he has deposed. Of course, P.W.2 has spoken to the fact that the amount of Rs.1,500/-, which was treated with phenolphthalein powder, was handed over to the accused and the same was accepted by him in the presence of P.W.4.
9. P.W.4 is the trap witness in this case. Never had he spoken about the demand made by the accused for issuance of certificate under the TNGST Act. Not only P.Ws.2 and 4 were treated as hostile by the investigating agency, more strangely P.W.4 was recalled after a lapse of two years by the prosecution for the purpose of subjecting him for further cross examination on account of his hostility exhibited during the course of chief examination. For the reasons best known after a lapse of two years, P.W.4 started supporting the case of the prosecution when he was cross examined by the prosecution. Such part of the evidence of P.W.4 cannot at all stand the legal scrutiny for two reasons. Firstly, he was subjected to cross examination immediately after the chief examination was over with the permission of the Court by the prosecution. He in fact reiterated the stand he had taken during the course of chief examination at that point of time. Secondly, P.W.4 was subjected to cross examination for the second time after a lapse of two years. The reason for such a revulsion by P.W.4 is quite obvious. Therefore, the Court is not inclined to give any credence to such a version found in the cross examination portion of P.W.4.
10. P.W.7 has been cited as a mahazar witness in this case. It is the admitted case of the prosecution that P.W.7 had not accompanied P.W.4 at the time when the trap was laid to the accused. He has of course spoken to the seizure of the sodium carbonate solution and the preparation of the mahazar for such seizure. His evidence does not advance the case of the prosecution at all.
11. The partner of P.W.2 was examined as P.W.3. He has also not chosen to support the case of the prosecution and as a result of which he was treated as hostile and was subjected to cross examination. He has also not spoken to any demand made by the accused as gratification. One Murugavel, who was examined as P.W.5 was found to be an employee of P.W.2. He has also not stated anything about the demand made by the accused at the time when the accused accompanied by P.W.6 to the business premises of P.W.2 for the purpose of inspection of the accounts maintained by P.W.2 relating to their oil business.
12. As rightly pointed out by the learned Senior Counsel appearing for the appellant/accused, none of the witnesses has spoken to the demand of bribe made by the accused. The question that arises for consideration is whether an accused can be convicted under the Prevention of Corruption Act, when the demand allegedly made was not established by the prosecution.
13. It is a well settled question of law that mere recovery of amount received by an accused will not constitute an offence under the Prevention of Corruption Act. The prosecution is bound to establish that there had been a demand of bribe for discharging the duty by the public servant if all the material witnesses in this case had turned hostile. Therefore, the evidence made by the prosecution on the premises that there was demand of bribe by the accused and the bribe was received by him during the course of trap proceedings is found to be completely shaking. It is found that P.W.2, who is the complainant in this case, has completely given a go-by to his version that there was a demand. He has come out with a shocking revulsion that the complaint was drafted by him only on the dictates of the Inspector of Police, P.W.15. There is nothing on record to implicate the accused in any of the offences under the Prevention of Corruption Act.
14. The trial Court has simply relied upon the evidence of P.W.2 with respect to the amount paid by him to the accused and recorded conviction under Section 7 of the Prevention of Corruption Act. The approach made by the learned Chief Judicial Magistrate, Cuddalore, to the materials available on record is found to be totally erroneous. Therefore, the Court has no hesitation to hold that the prosecution has miserably failed to establish the receipt of gratification by the accused for discharging his official function. The charge under Section 7 of the Prevention of Corruption Act therefore does not stand legal scrutiny.
15. In view of the above facts and circumstances, the judgment of the conviction recorded by the Chief Judicial Magistrate, Cuddalore, under Section 7 of the Prevention of Corruption Act, 1988 and the sentence imposed thereunder, stands set aside and the accused is acquitted of the aforesaid charge and consequently he is set at liberty. The bail bonds, if any, executed by him, shall stand annulled. The fine amount paid by the accused shall be returned forthwith. The appeal consequently stands allowed.
ATR
To
1. The Chief Judicial Magistrate
Cuddalore.
2. The Section Officer
VR Section, High Court,
Madras