IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal No.405 of 2007 and M.P.No.1 of 2007 Ganesan ... Appellant Vs Inspector of Police, Vigilance and Anti Corruption, Crime No.18/AC/2002/SL ... Respondent Criminal Appeal is filed under Section 374 of Cr.P.C. to call for the records and set aside the order in Special Case No.25/2003 on the file of the Special Judge-cum-Chief Judicial Magistrate, Salem, dated 11.4.2007. For Appellant : Mr.A.Padmanaban For respondent : Mr.N.R.Elango, Addl.PP O R D E R
Challenging the conviction and sentence imposed on the appellant in Special Case No.25 of 2003 by the learned Special Judge-Cum-Chief Judicial Magistrate, Salem, dated 11.4.2007 under the Prevention of Corruption Act (hereinafter referred to as ‘the Act’), the appellant has come forward with this appeal. He stands convicted for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act and sentenced to undergo rigourous imprisonment for one year for each offence and to pay a fine of Rs.5,000/- for each offence, in default, to undergo rigourous imprisonment for three months. The sentences have been ordered to run concurrently.
2. The prosecution case in brief is as follows:
P.W.2 is a resident of Ammapettai Village in Salem District. During the year 1997, he had constructed three houses on the property belonging to his wife (P.W.4). During the year 2002, he wanted to get Electricity Service Connection to four of the houses. He submitted four applications on 9.8.2002 seeking electricity service connection to the appellant, who was the then Commercial Inspector, at the office of the Junior Engineer (Operation and Maintenance), Thillai Nagar Branch, Salem. On receiving the applications, the accused is stated to have told P.W.2 to go and wait in the property, assuring that he would come and visit the said property. Accordingly, at about 2.30 p.m., the accused visited the property. Then he told P.W.2 that Electricity Over Head Line is passing through the site and therefore, it would be difficult to give electricity service connection to the houses. Saying so, the accused wanted P.W.2 to come and meet him in his office. Accordingly, he went to the office in the evening and met the Assistant Engineer. When the Assistant Engineer called the accused and enquired about the applications, the accused told him that it is difficult to give electricity service connection due to the above stated reason. Then the accused told P.W.2 to come after two days i.e. on Monday. Accordingly, on Monday, namely, 12.8.2002, P.W.2 had gone to the office at 10.00 a.m. But, the accused was not available in the office. Therefore, again he went to the office at about 3.00 p.m. and met the accused. It is stated that during the meeting, the accused demanded Rs.2,400/- as bribe to process the applications and to give electricity service connection. But, P.W.2 was not willing to give bribe as demanded. The next day at about 8.30 a.m., he again went to the office and met the accused. But even then the accused did not process the applications. When the accused again demanded Rs.2,400/- P.W.2 requested him to reduce the same. Accordingly, it was reduced to Rs.2,200/-. But, he was not willing to give bribe. Therefore, he went to the office of the Vigilance and Anti Corruption on 13.8.2002 and preferred a complaint under Ex.P.2.
3. P.W.8, who was the then Inspector of Police attached to the Vigilance and Anti Corruption Police Station, Salem, registered a case on the said complaint in Crime No.18/AC/2002/SL under Section 7 of the Act at 10.30 a.m. on 13.8.2002. Then on a request made by him, P.W.3 and one Lakshman Das appeared before him to assist the investigation as witnesses. In the presence of the said witnesses, P.W.8 explained to P.W.2 and the witnesses about the Phenolphthalein Powder Test. In the presence of the said witnesses, P.W.2 produced a sum of Rs.2,200/- i.e. three 500 rupee currency notes and seven 100 rupee currency notes (M.O.1 Series). Then he smeared the said currency notes with Phenolphthalein Powder. Then, he handed over the same to P.W.2 with appropriate instruction. Thereafter, P.Ws.2, 3 and other witnesses were taken by P.W.8 to the office of the appellant. For all the above, appropriate Mahazars were also prepared. At about 1.20 p.m., P.Ws.2 and 3 alone went into the office of the accused. When P.Ws.1 and 2 appeared before the accused, the accused enquired P.W.2 as to whether he had brought the money for legal charges. P.W.2 in turn handed over all the four applications alone to the accused. When the accused made necessary entries in the Registers and wanted P.W.2 to pay the amount towards the legal charges, he also handed over all the four applications to P.W.2. Accordingly, P.W.2 paid Rs.6,200/- towards legal charges for four service connections and received necessary receipts for the same. Then P.Ws.2 and 3 returned to the accused and handed over all the four applications along with the receipts. At that time, the accused asked him as to whether he had brought the demanded amount. Immediately, P.W.2 took out Rs.2,200/- (Phenolphthalein smeared notes) from his pocket M.O.1 series and gave the same to the accused. Then the accused told P.W.2 that the electricity service connection would be given on the same day itself. Then he instructed the accused to give Rs.200/- to the persons, who will come to the spot to give electricity service connection. Then P.W.2 and P.W.3 came out of the office and gave signal to P.W.8.
4. On receiving the said signal from P.W.2, P.W.8 along with other witnesses proceeded towards the office of the accused. On his way, he met P.W.2. Then, he took P.W.2 also into the office of the accused. P.W.8 identified the accused thereafter. Then P.W.8 conducted Phenolphthalein Test to his fingers of both the hands, with the use of Sodium Carbonate solution which proved positive. The said solutions were preserved and a Mahazar was also prepared for the same. Then the accused produced M.O.1 series from his pant pocket and the same was recovered under Mahazar. Thereafter, he arrested the accused, brought him to the police station and sent him for the remand.
5. As soon as the arrest was effected, the accused gave an explanation that he collected the amount was towards donation for the Trade Union to which he is the Salem Town Secretary. Apart from the above money, a sum of Rs.5,600/- was also recovered from him. The accused told that the said amount was also collected towards donation. The above said amount of Rs.5,600/- was not recovered. Thereafter, he made arrangements for sending the Sodium Carbonate Solution for chemical analysis. The Chemical Analyst report received indicated that phenolphthalein powder was mixed in the solution. P.W.9 took up the investigation, examined the witnesses, recorded their statements, obtained sanction from P.W.1 and then laid charge sheet.
6. On the basis of the above materials, the trial court framed charge under Sections 7 and 13(2) read with 13(1)(d) of the Act against the accused.
7. In order to prove the said charges, the prosecution examined 9 witnesses and exhibited 16 documents besides 7 materials objects.
8. P.W.2 has spoken to about the earlier demand made by the accused and also the trap, the receipt of illegal gratification by the accused and other facts. P.W.3 speaks about the trap, the receipt of illegal gratification by the accused from P.W.2. P.W.4 is the wife of P.W.2 who speaks about the ownership of the houses for which electricity service connections were sought for. P.Ws.5 to 7, who are the officials of the Tamil Nadu Electricity Board, speak about the procedure for giving electricity service connection and the events relating to the applications submitted by P.W.2 for electricity service connection. P.Ws.8 and 9 are officials of the Vigilance and Anti Corruption Department, who have spoken to about the registration of the case, trap, the investigation and laying of charge sheet.
9. When the accused was questioned under Section 313 of Cr.P.C., he has stated that he received the amount only by way of donation to the Trade Union. He has further stated that even on 8.8.2002 itself, P.W.2 met him and when he requested him to pay the donation, he promised to pay. He has further stated that he was under the impression that what was paid by P.W.2 was only donation and he never intended to receive the same as an illegal gratification. He has not chosen to examine any witness on his side.
10. Having considered all the above materials, the trial court found the accused guilty under Sections 7 and 13(2) read with 13(1)(d) of the Act and punished him accordingly. It is against the same, the appellant has come forward with this appeal.
11. The issues involved in this case fall within a narrow campus. Admittedly, even the case of the accused itself is that he received the amount from P.W.2, but, what he would say is that he never demanded any illegal gratification for giving electricity service connections to the houses of P.W.2 and as a matter of fact, P.W.2 even before the applications were submitted on 8.8.2002 itself, promised him to pay only donation and accordingly, what was paid to him is only donation.
12. Now the question is whether the said defence of the accused has been probablised.
13. P.W.1, during his cross-examination has categorically admitted that on 8.8.2002, when he met the accused, he requested him to give donation for the 2nd State Conference of the Trade Union for which the appellant is the then Secretary. He has further admitted that he assured him that he would pay the donation. He has further added in his deposition that the accused requested him to pay at least Rs.3,000/- for which he told him that he could give whatever was possible for him to give.
14. P.W.2 has further stated that on 12.8.2002, when he met the accused again at his office, he requested him to pay donation as earlier assured by him for which he told that he would come on the next day with money when he would come for some other office work. From the above admissions, it is crystal clear that even before the applications were submitted to the office for the electricity service connections, the accused requested P.W.2 to give donation for which he initially gave assurance on 8.8.2002 and again on 12.8.2002 and finally he told that he would give donation on 13.8.2002.
15. Yet another fact to be noted is that on 13.8.2002, a trap was arranged during which P.W.2 went to the office and paid the amount to the appellant. Even during the trap, the accused did not ask P.W.2 to give any illegal gratification. Instead, according to the evidence of P.W.2, the accused asked him whether he had brought the amount that he earlier assured. This would also probablise the case of the accused that the accused would have meant only donation when he asked the said amount from P.W.2. The evidence of P.W.3 would go to show that the accused asked P.W.2 as to whether he had brought any other amount. This would also go to show that the accused never demanded any illegal gratification. This defence of the accused cannot be stated to be an after thought.
16. It is the admitted case of the prosecution that during the trap, the accused was found in possession of a sum of Rs.5,600/-. When P.W.8 enquired about the said amount, he immediately told P.W.8 that it was the collection amount towards donation to the trade union. There is no denial of the fact that he was the Secretary of the Trade Union which was then organising a State Level Conference. All these material evidences would go to probablise the defence of the accused that the money was received only as a donation.
17. Now the question is whether the receipt of such donation would amount to “legal remuneration”. Section 7 of the Prevention of Corruption Act defines the terms gratification and legal remuneration as follows:
“Explanation (b) :”Gratification : The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.”
“(c) : “Legal remuneration” : The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.”
18. To make a remuneration as a legal remuneration as per the above definition, it should be proved that either the Government or the organisation had permitted to accept the same as donation. In this case, it is the admitted case of the accused that no such permission was granted by the Government or by the organisation. At the same time, it could be noted that the said amount requested by the accused and received by him had no connection with the electricity service connections which P.W.2 had sought for. As per Section 7 of the Act, the receipt of any remuneration other than a legal remuneration alone is an offence. Here it can never be stated that the amount received by the accused from P.W.2 is a remuneration for doing the official act to give electricity connections. It is not the case of the prosecution that even on 8.8.2002, when the accused requested P.W.2 to give donation, P.W.2 had already told the accused about his proposal to make application for service connection. So, at that point of time, the accused would not have even visualised that P.W.2 would come in a day or two for making application for service connection. Thus, the accused had requested for donation on 8.8.2002 which had nothing to do with the applications made on 9.8.2002. The term remuneration would mean, money paid for a work or a service. In the instant case, as I have already concluded, the money was not requested to and received by the accused for the work or service to be rendered in his official capacity in the matter of electricity service connections. So, what was received by the accused cannot be construed as ‘remuneration’ at all. Further, there is no charge regarding the alleged demands made prior to 13.8.2002. From all these circumstances and facts, I am of the firm opinion that the prosecution has failed to prove that the accused received the amount as a remuneration much less illegal remuneration. When the amount received from P.W.2 has not been proved to be a remuneration, the question of illegal remuneration does not arise (vide State of Tamil Nadu Vs. S.Krishnamurthy reported in 2003 Supreme Court Cases (Crl) 1236.
19. The lower court has failed to appreciate the above materials in their proper perspectives. For all these reasons, the conviction and sentence imposed on the accused is liable to be set aside and he is entitled for acquittal.
20. In the result, the appeal is allowed and the Conviction and sentence imposed by the Special Judge-cum-Chief Judicial Magistrate, Salem on the appellant is set aside and the appellant is acquitted. Fine amount paid, if any, shall be refunded to the accused. The bail bond shall stand discharged. Consequently, connected Miscellaneous Petition is closed.
tsi
To
1. The Special Judge-cum-Chief Judicial Magistrate, Salem
2. The Inspector of Police, Vigilance and Anti Corruption,
Salem