BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Crl.A.(MD)No.82 of 2005 and M.P.(MD)No.1 of 2009 Sankaralingam ... Appellant/ Accused No.1 Vs. Deputy Superintendent of Police, (V & AC) Tirunelveli. ... Respondent/ Complainant PRAYER The Appeal is filed under Section 374(2) of Criminal Procedure Code, against the conviction and sentence dated 31.01.2005 made in Special C.No.1 of 1997 on the file of the learned Chief Judicial Magistrate cum Special Judge, Tirunelveli. !For Appellant ... Mr.H.Arumugam for Mrs.Uma Ramanathan ^For Respondent ... Mr.L.Murugan G.A.(Crl.Side) :JUDGMENT
The appeal is filed against the conviction and sentence dated 31.01.2005
made in Special C.C.No.1 of 1997 on the file of the learned Chief Judicial
Magistrate cum Special Judge, Tirunelveli. The first accused is the appellant.
The appellant was charged for an offence under Section 7 and 13(2) r/w. 13(1)(d)
of the Prevention of Corruption Act. The appellant was a public servant and was
working as Thasildar at Radhapuram, Tirunelveli District.
2.The brief facts of the prosecution case is as follows:
One Subbaiya, who was the resident of Keeraikaran Thattu, applied for a
solvency certificate on 25.04.1995 at Taluk office, Radhapuram. However, he
gave an application only on 10.05.1995 and paid the necessary fee and the same
was processed by one George (second accused) and on his direction the de facto
complainant met the Village Administrative Officer and also the Revenue
Inspector and obtained necessary certificates and resubmitted the application on
15.05.1995. He met the appellant and requested for the solvency certificate.
According to the de facto complainant the appellant demanded Rs.1,000/- on
16.05.1995 as illegal gratification. Again he met the appellant on 18.05.1995
at his house and the appellant demanded Rs.500/- as illegal gratification and
Rs.200/- towards Flag Day donation. The de-facto complainant not willing to pay
the bribery went to the Vigilance and Anti Corruption Office, Palayamkottai and
met the Deputy Superintendent of Police and gave a complaint. On the same day
the Deputy Superintendent of Police called one Mohan and Nagarajan, who are the
gazetted rank officers and decided to prepare a trap proceeding. The Deputy
Superintendent of Police explained the trap proceedings to the de-facto
complainant and to the two witnesses. The de-facto complainant produced seven
One hundred rupees currency notes. The pre-trap procedures were conducted and
the Deputy Superintendent of Police explained the phenolphthalein test to the
witnesses and to the de-facto complainant. After following the formalities, the
currencies were given back to the de-facto complainant and he was directed to go
along with the said Nagarajan, an independent witness to the Thasildar’s Office.
3.The de-facto complainant and the witness Nagarajan went to the
appellant’s office. The de-facto complainant went to the appellant’s room and
tendered the tainted money. The appellant directed the de facto complainant to
hand over the same to the Clerk viz., George and accordingly, the money was put
into a cover and was handed over to the said George. He took Rs.200/- and
directed the de facto complainant to pay the same to the Clerk in charge of Flag
Day donations and obtain a receipt. The said George went inside the Thasildar’s
office and gave him the cover which contained the tainted money. He brought the
certificate and gave it to the de facto complainant.
4.After giving the illegal gratification, the de facto complainant
signalled and the DAVC team headed by the Deputy Superintendent of Police
entered the office and confronted the appellant. The tainted money was produced
by the appellant from a drawer on the side of his table. The post
phenolphthalein test was conducted and the appellants left hand turned positive
for the said test and the said George also found dealt with the tainted money.
The tainted money was seized under magazor and the appellant and George were
explained about the offences and were arrested.
5.The Deputy Superintendent of Police investigated and recorded the
statements of the witnesses and on completion of the investigation laid the
charge sheet against the appellant and the said George for the offence stated
above.
6.The Chief Judicial Magistrate who took the case in Special C.C.No.1 of
1997 framed charges and on denial of the charges the Trial was conducted. In
order to prove the prosecution case, 15 witnesses were examined and 20 exhibits
were produced and 20 material objects were marked.
7.On the basis of the oral and documentary evidences and more particularly
relying on the trap proceedings and recovery of the tainted money and also on
relying on the witness for trap the learned Chief Judicial Magistrate found the
appellant guilty under Section 7 and 13(2) r/w. 13(1)(d) of the Prevention of
Corruption Act and convicted him one year R.I. of each offence and a fine of
Rs.1000/- with default sentence. The other accused, the said George was
acquitted .
8.Aggrieved by the conviction and sentence the appellant has preferred the
present appeal on various grounds. Pending appeal, the appellant died and his
son had filed an application in M.P.(MD)No.1 of 2009 to permit him to proceed
with the appeal and the said application was allowed. However, in this appeal
the deceased appellant is referred as appellant.
9.Mr.H.Arumugam, learned counsel for the appellant would submit that the
de fact complainant had a motive of vengeance against the appellant and he has
falsely implicated the appellant. The learned counsel pointed out that there
are discrepancies in the evidence of the de fact complainant and P.W.3 the said
Nagarajan, who was accompanying the de fact complainant in trap proceedings.
The learned counsel pointed out that the entire prosecution case is based on the
evidence of P.W.2 the de fact complainant and P.W.3 the witness for trap
proceedings and once there are contradiction in their evidence both the
evidences has to be disregarded.
10.The learned counsel pointed out that there is no corroborative evidence
for the alleged demand by the appellant. The learned counsel relied on 2010(1)
MLJ (Cri.) 541 (A.V.Vijayarangan and others Vs. State Rep.by Inspector of
Police, Vigilance and Anti Corruption, Salem) wherein this Court has held as
“17.Regarding the alleged demand made by A1 and the indirect demand made by A2
on 02.09.1989 at about 5.30 p.m.in the guest house of Indian Cements Factor,
there is no other evidence excepting the oral testimony of P.W.2. The testimony
of P.W.2 is also found to contradict with Exhibit P.2 complaint and his
statement recorded under Section 161 Cr.P.C. The veracity of P.W.2 in this
regard has become more questionable in the light of the above cited evidence of
P.Ws.9 and 13. Therefore, this Court has to come to a necessary conclusion that
the alleged demand made by A1, who was supported by A2 as per the evidence of
P.W.2 is highly improbable.”
11.The learned counsel also pointed out that if the demand is not proved a
serious doubts arises against the prosecution case and relied on another
decision reported 2009(4) MLJ (Criminal) 335 SC (State of Maharastra Vs.
Dnyaneshwar Laxman Rao Wankhede) wherein the Supreme Court has held as
“16.Indisputably, the demand of illegal gratification is a sine qua non for
constitution of an offence under the provisions of the Act. For arriving at the
conclusion as to whether all the ingredients of an offence, viz., demand,
acceptance and recovery of the amount of illegal gratification have been
satisfied or not, the Court must take into consideration the facts and
circumstance brought on the record in their entirety. For the said purpose,
indisputably, the presumptive evidence, as is laid down in Section 20 of the
Act, must also be taken into consideration but then in respect thereof, it is
trite, the standard of burden of proof on the accused vis-a-vis the standard of
burden of proof on the prosecution would different. Before, however, the
accused is called upon to explain as to how the amount in question was found in
his possession, the foundational facts must be established by the prosecution.
Even while invoking the provisions of Section 20 of the Act, the Court is
required to consider the explanation offered by the accused, if any, only on the
touchstone of preponderance of probability and not on the touchstone of proof
beyond all reasonable doubt.”
12.The learned counsel also relied on 2008 Crl.L.J. 1825 (Anand Parkash
and another Vs. State of Haryana) wherein the Punjab and Haryana High Court has
observed the ruling of the Apex Court as
“mere recovery of the currency notes and positive result of the phenolphthalein
test is not enough to establish the guilty of the appellant on the basis of
perfunctory nature of materials and prevaricating type of evidence.”
13.The learned counsel also relied on AIR 1992 SC 665 (Som Parkash Vs.
State of Punjab) wherein the Supreme Court has held as
“…We agree with the learned counsel for the appellant that in the face of the
finding that the witnesses who formed part of the raiding party were not
independent and the evidence regarding handing over money to the appellant being
unbelievable, the conviction of the appellant cannot be sustained. The guilty
of the appellant has not been proved beyond reasonable doubt and as such the
benefit must go to him.”
14.The learned counsel relied on 2008(1) TNLR 224(S.D.Amalraj Vs. State
through Inspector of Police) wherein this Court has held that when the accused
has already passed an order to issue licence, nothing remains to be done
thereafter and therefore, the payment of bribe after completion of the official
favour is a serious lacuna in the prosecution case.
15.Mr.Murugan, learned Government Advocate (Crl.side) submitted that the
appellant was found receiving the tainted money and the said test turned
positive and it is a case of trap and the prosecution has proved the case beyond
reasonable doubt.
16.Heard both the sides and perused the materials available on record.
17.According to the de fact complainant, there was a demand by the
appellant on 16.05.1995. As rightly pointed out by the learned counsel for the
appellant except the evidence of P.W.2 there is no other witness to speak about
the demand. According to him, he met the appellant on 18.05.1995 at his house
and that day also he demanded Rs.500/- as bribe and Rs.200/- for Flag Day
donation. On 19.05.1995, he went to the office of P.W.12, the Deputy
Superintendent of Police and gave a complaint and he has also taken along with
him the demanded Rs.700/-. One Mohan and Nagarajan were requested to be the
trap proceedings and the said Nagarajan alone was sent along with the de fact
complainant to tender the bribe to the appellant.
18.According to the prosecution, the de fact complainant met the appellant
in his office and on tendering the money the appellant directed him to give the
money to the second accused and accordingly, he went to the seat of the second
accused and tendered the money. P.W.3 would state that he was watching the
entire proceedings and the second accused directed the de fact complainant to
get a paper cover and put the money inside the cover. It is only the second
accused who received the tainted money and took out Rs.200/- and gave it the de-
facto complainant to tender the same to P.W.6, Sudalaimuthu towards Flag day
donation. According to P.W.3, the second accused took the cover to the
appellant and came back with the insolvency certificate which was given to the
de fact complainant. However, when the de fact complainant was examined in
chief, he would state that he gave the money to the appellant and after receipt
of the tainted money the appellant took out Rs.200/- with a direction to the de
fact complainant to pay for the Flag day donation. He had totally exonerated
the said George from the allegations. In other words he had chosen to be a
partisan witness.
19.As far as P.W.3 is concerned he was standing outside the office of the
Thasildar and he is not an eye witness for handing over the money by the de fact
complainant. The evidence of P.W.2 is against the version of P.W.3. The
material contradiction is so evident which falsifies the evidence of P.W.2. The
only circumstances against the appellant is that his left hand was positive for
the test and he had took out a cover which contained the tainted money from the
side drawer of the table. The mere production of a cover with tainted money
without direct evidence of receipt the money cannot be relied on.
20.In 2000(5) SCC 21 (Meena (Smt) W/o Balwant Hemke Vs. State of
Maharastra) the Supreme Court has held as follows:
“…Mere recovery of the currency note of Rs.20 denomination, and that too lying
on the pad on the table, by itself cannot be held to be proper or sufficient
proof of the acceptance of the bribe, in the peculiar circumstances of this case
which lend also credence to the case of the appellant that it fell on the table
in the process of the appellant pushing it away with her hands when attempted to
be thrust into her hands by P.W.1. The results of phenolphthalein test, viewed
in the context that the appellant could have also come into contact with the
currency note when she pushed it away with her hands cannot be itself be
considered to be of any relevance to prove that the appellant really accepted
the bribe amount. …”
21.In 2000(5) SCC 21 : (2000 Cri L.J. 2273) it was held that mere recovery
of the currency notes and positive result of the phenolphthalein test is not
enough to establish the guilty of the appellant on the basis of perfunctory
nature of materials and prevaricating type of evidence.
22.According to P.W.3, the money was handed over to the said George and
who took out Rs.200/- for Flag day donation and gave it to the de facto
complainant and there after had taken the tainted money to the appellant. What
transpired inside the office of the appellant was not spoken by any witness.
But according to the de facto complainant, the tainted money was received by the
appellant directly and not by the said George. His evidence is unreliable. As
stated earlier the only circumstances against the appellant is that the left
hand of the appellant was positive for the test and he produced the cover. The
mere production of the tainted money and positive result of the phenolphthalein
test is not enough to establish the guilty of the appellant. It is well settled
law that demand of illegal gratification is sine qua non for constitution of the
offences under Prevention of Corruption Act and the prosecution has to prove the
case beyond reasonable doubt and only one circumstance is not enough to fix the
guilt of the accused. Therefore, the Trial Court is wrong in holding that the
prosecution has proved the case beyond reasonable doubt.
In the result, appeal is allowed and the conviction and sentence is set
aside. Consequently, connected M.P. is closed.
nbj