BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/02/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.A.No.708 of 2002 K.Jayaraman . . . Appellant/ Accused Vs. State rep. by the Inspector of Police, Vigilance and Anticorruption, Pudukkottai. (Crime No.2 of 1996) . . . Respondent/ Complainant Criminal appeal is filed under Section 374(2) of Cr.P.C. against the conviction and sentence dated 18.04.2002 passed in Special Calendar Case No.1 of 1998 by the Addl. District Judge cum Chief Judicial Magistrate, Pudukkottai. !For appellant ...Mr.S.Shanmugavelayutham, Senior Counsel for Mr.M.Suri ^For respondent ...Mr.Muthuvenkatesan, Government Advocate, (criminal side) :JUDGMENT
Challenge in this criminal appeal is to the conviction and sentence dated
18.04.2002 passed in Special Calendar Case No.1 of 1998, by the Additional
District cum Chief Judicial Magistrate Court, Pudukkottai.
2.The epitome of the prosecution case is that the accused by name
Jayaraman has served as Junior Assistant, in the office of the District Manager,
Tamil Nadu Adi Diravidar Housing and Development Corporation Limited (TADHCO),
Pudukottai, during the relevant period i.e. from 17.07.1992 to 20.11.1996. He
is a public servant within the meaning of Section 2(c) of the Prevention of
Corruption Act, 1988. The complainant by name K.Tamilselvan, son of Karuppan
belongs to Hindu Adi-Diravidar Community and on 08.08.1996 he submitted an
application with all enclosures for getting a loan of Rs.77,360/- in Co-
operative Land Development Bank, Annavasal so as to purchase a Xerox machine. On
25.07.1996 he submitted an application for sanctioning of marginal money and
subsidy in the office of the District Manager, Tamil Nadu Adi Diravidar Housing
and Development Corporation Limited, (TADHCO), Pudukkottai. The special Officer,
Co-operative Land Development Bank Ltd., Annavasal has sent Form-III to the
Office of the District Manager, Tamil Nadu Adi Diravidar Housing and Development
Corporation Limited, (TADHCO), Pudukottai. The application of the complainant
has been dealt with by the accused. On 07.11.1996 the accused has demanded
Rs.3,000/- from the complainant by way of illegal gratification. On 19.11.1996
also the accused has demanded Rs.3,000/- from the complainant and then reduced
the amount to the tune of Rs.2,500/- and also directed him to pay Rs.1,000/- as
first instalment and the complainant has expressed his inability, but the
accused has asked him to pay Rs.800/- as first instalment and further he
directed the complainant to give the same on 19.11.1996 at about 3.00 p.m. by
putting the same in a cover and accordingly, on the same date, the accused has
received the said sum of Rs.800/- from the complainant and under the said
circumstances, the accused is said to have committed offences under Sections 7 &
13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
3.The investigating agency, after completing investigation, has laid a
final report on the file of the trial Court and the same has been taken on file
in Special Calendar Case No.1 of 1998.
4.On the basis of the alleged culpability of the accused, the trial Court
has framed first charge under Section 7 of the Prevention of Corruption Act,
1988 and the second charge under Sections 13(2) read with 13(1)(d) of the said
Act and the same have been read over and explained to him. The accused has made
a candid denial and also claimed to be tried.
5.On the side of the prosecution, PWs.1 to 10 have been examined and
Exs.P1 to P24 and MOs.1 to 6 have been marked.
6.When the accused has been questioned under Section 313 of the Code of
Criminal Procedure, as respects the incriminating circumstances appearing in
evidence against him, he denied his complicity in the crimes. However no oral
and documentary evidence have been let in on the side of the accused.
7.On the basis of available evidence on record, the trial Court has found
the accused guilty under Sections 7 & 13(2) read with 13(1)(d) of the Prevention
of Corruption Act, 1988 and for each offence sentenced him to undergo two years
rigorous imprisonment and also imposed a fine of Rs.1000/- with default clause.
Against the conviction and sentence passed by the trial Court, the present
criminal appeal has been filed at the instance of the accused as appellant.
8.Before excogitating the rival submissions made by either counsel, it
would be more useful to look into the necessary factual and legal aspects so as
to attract the penal provisions of Sections 7 & 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988.
9.In a case like this, the following factual and legal aspects are very
much essential;
a)There must be a demand of gratification other than legal remuneration by
the concerned accused.
b)The concerned accused must have accepted the same or agreed to accept
it.
c)If the concerned trap has been done due to motive, the concerned
accused should prove the same.
10.With these legal and factual aspects, the Court has to perpend the
present case.
11.The sum and substance of the case of the prosecution is that the
complainant by name Tamilselvan belongs to Hindu Adi Diravidar Community. On
08.08.1996 he submitted an application in the Co-operative Land Development
Bank, Annavasal for getting a loan of Rs.77,360/- so as to purchase a Xerox
machine and during the relevant period, the accused has served as Junior
Assistant in the Office of the District Manager, Tamil Nadu Adi Diravidar
Housing and Development Corporation Limited, (TADHCO), Pudukottai and the
application of the complainant has been dealt with by the accused and on
07.11.1996 the accused has demanded Rs.3,000/- from the complainant and also
directed him to pay Rs.1000/- as initial payment. On 19.11.1996 at about 11.30
a.m. the complainant has again met the accused in his office and he demanded
Rs.3,000/- from the complainant and subsequently reduced the same to the tune of
Rs.2,500/- and also directed him to pay Rs.1000/- as initial payment and the
complainant has expressed his inability and therefore, the accused has directed
him to pay Rs.800/- by placing the same in a cover, on the same day, at about
3.00 p.m. and accordingly, on the same day, at about 4.50 p.m. the accused has
received Rs.800/- from the complainant by way of gratification other than legal
remuneration.
12.As adverted to earlier, the first two legal as well as factual aspects
must be proved only by the prosecution.
13.The prosecution has set the law in motion on the basis of complaint
alleged to have been given by the complainant on 19.11.1996 to the Inspector,
Vigilance and Anticorruption, Pudukkottai and the same has been marked as Ex.P4,
wherein it has been clearly stated about the factum of submission of necessary
application by the complainant and also about the demand of money by the
accused.
14.The author of Ex.P4 viz., complainant has been examined as PW2. He
would say in his evidence that he has studied upto 10th standard and he is an
unemployed and on 08.08.1996 he submitted an application for getting loan along
with all relevant documents. On 30.10.1996, the Special Officer has passed
necessary orders and after one week, he has gone to the office of the District
Manager, Tamil Nadu Adi Diravidar Housing and Development Corporation Limited,
(TADHCO), Pudukottai and met the Manager and he directed him to meet the accused
viz., Jayaraman and after lapse of ten days, he appeared for interview. After
three months, he again met the Manager and he directed him to meet the accused.
On 07.11.1996, he met the accused and the accused has directed him to give
Rs.3,000/- for making necessary recommendations and he expressed to the effect
that he is not in a position to give the same and the accused has told him that
he should give Rs.1,000/- for Deepavali Expenses. On 18.11.1996 he again went to
the office of the District Manager, Tamil Nadu Adi Diravidar Housing and
Development Corporation Limited, (TADHCO), Pudukottai and on that day, the
accused has not come to the office and on 19.11.1996 at about 11.30 a.m. he met
the accused and he demanded Rs.3,000/- and he expressed his inability and
ultimately told him that he would give Rs.800/- and the accused has directed him
to give the said amount by way of putting the same in a cover and subsequently
he has given Ex.P4 to the Inspector, Vigilance and Anticorruption, Pudukkottai
and the signature found thereon is Ex.P5. On the same day, at about 4.00 p.m.
two officials have come to the office of the Vigilance and Anticorruption and
after five minutes, he has been directed to come inside and the Inspector has
given the complaint given by him to the said officials and after reading the
same, they ascertained its genuineness and subsequently the Inspector has
observed all formalities and directed him and also the officer by name
Srinivasan to go to the office of the accused and accordingly both of them have
gone there at about 4.30 p.m. and both of them have met the accused. The
accused has demanded money from him by way of making gesticulation and he
replied to the effect that he has brought Rs.800/- as demanded by the accused
and subsequently handed over the cover in question to the accused and he
received the same by using his right hand and by using his left hand, he placed
the same in a drawer of a table and after some time, he and the said Srinivasan
have come out from the office of the accused and he has given necessary signal
to the Inspector, Vigilance and Anticorruption and he and others have come to
the office of the accused and he identified the accused to the Inspector of
Vigilance and Anticorruption.
15.The decoy witness by name Srinivasan has been examined as PW3. He has
stated in his evidence that on 19.11.1996 he served as Assistant Engineer in
Veeran Alagumuthukone Transport Corporation and on the same day, at about 3.30
p.m. his higher official has received a secret information and directed him to
go to the office of the Vigilance and Anticorruption, Pudukkottai and
accordingly he has gone there at about 4.00 p.m. and one Ramakodi, Assistant
Engineer, has also come there and both of them have met the Inspector, Vigilance
and Anticorruption and he introduced the complainant. The Inspector of Vigilance
and Anticorruption, has given a complaint alleged to have been given by the
complainant and both of them have read and ascertained its genuineness by way of
enquiring the complainant and subsequently, the complainant has given Rs.800/-
(Eight Hundred Rupees Currency Notes) and the Inspector of Vigilance and
Anticorruptuion, after observing all formalities, has asked him and also PW2 to
go to the Office of the accused and accordingly on the same day, at about 4.50
p.m. he and PW2 met the accused and the accused has demanded money from the
complainant by way of gesticulation and the complainant has given the cover in
question which contained Rs.800/- and the same has been received by the accused
and further he has stated in his evidence that after some time, necessary signal
has been given to the Inspector of Vigilance and Anticorruption and the
complainant has identified the accused to the Inspector of Vigilance and
Anticorruption and subsequently, all formalities have been observed and the
Inspector of Vigilance and Anticorruption has seized the cover which contained
Rs.800/- from the complainant and also another cover under mahazars.
16.The concerned Inspector of Vigilance and Anticorruption, Pudukkottai
has been examined as PW7. He would say in his evidence that on 19.11.1996 he
served as Inspector of Vigilance and Anticorruption, Pudukkottai and on the same
day, PW2 has given the complaint which has been marked as Ex.P4, wherein it has
been stated that the accused has demanded Rs.3,000/- from him by way of
gratification other than legal remuneration and he accepted to give Rs.800/-.
After ascertaining the genuineness of the complaint, he sought the role of PW3
and one Ramakodi. The accused has given Rs.800/- (Eight Hundred Rupees Currency
Notes) and after observing all necessary formalities, he directed PWs.2 & 3 to
go to the office of the accused and accordingly they have gone there and after
getting signal from PW2, he and others entered into the office of the accused
and he has been enquired into about the money received by him and initially he
refused and subsequently he produced the cover which contained Rs.800/- and
after observing all formalities, he recovered the same.
17.The money, alleged to have been demanded and received by the accused,
has been marked as MO.1 series and the covers in question have been marked as
MOs.5 & 6. The concerned Chemical Analysist has been examined as PW8. She
would say in her evidence that she examined all the materials objects in
question and ultimately submitted her report which has been marked as Ex.P23.
Therefore, from the conjoint reading of Ex.P4 as well as other documents and
also testimonies of PWs.2, 3, 7 & 8, coupled with the materials objects referred
to above, the Court can unflinchingly come to a conclusion that on 19.11.1996
the accused has demanded gratification other than legal remuneration from PW2
viz., complainant and accordingly, he received the same from the complainant on
the same day. Under the said circumstances, there is no dubitation in coming to
a conclusion that the accused has committed the offences mentioned in the
charges. Therefore, it is quite clear that the prosecution has clearly
established the first two factual and legal aspects.
18.The learned counsel appearing for the appellant/accused has made his
first attack to the effect that the uncle of the complainant by name Tamilselvan
had tried to obtain bullock cart loan illegally and his attempt has been turned
down by the accused and due to that a strong motive is in existence between the
complainant and accused, and in order to wreck vengeance, Ex.P4 has been given
erroneously and further the complainant has clearly admitted in his evidence
that the accused has received the cover in question by way of thinking that the
said cover only contains Form-III and therefore, the accused has not made any
demand of gratification other than legal remuneration so as to invoke the penal
provisions of Sections 7 & 13(2) read with 13(1)(d) of the Prevention of
Corruption Act, 1988 and therefore, the same are not present in this case and
the conviction and sentence passed by the trial Court are totally erroneous and
the same are liable to be set aside.
19.Of-course it is true that PW2, viz., complainant during the course of
cross-examination has admitted to the effect that his uncle’s name is
Tamilselvan. But, further he has stated in his evidence that he has not known
about the alleged attempt made by the said Tamilselvan so as to get bullock cart
loan illegally and the same has been rejected by the accused. If really the said
Tamilselvan has applied for getting bullock cart loan and the same has been
rejected by the accused, definitely, some documents would have emerged
officially, but to utter dismay, no such document has been filed on the side of
the defence. Further as stated earlier, PW2 viz., complainant has not at all
accepted the alleged attempt made by the said Tamilselvan. Therefore, the
alleged motive for trap has not at all been established on the side of the
accused. It has already been pointed out to the effect that if the alleged trap
has been done due to motive, the same should be proved by the accused. In the
instant case, as animadverted to earlier, no acceptable and trustworthy evidence
are placed on the side of the accused so as to explain the alleged motive for
trap. Under the said circumstances, the first limb of argument advanced by the
learned counsel appearing for the appellant/accused is sans merit.
20.The learned counsel appearing for the appellant/accused has also
advanced his inert argument to the effect that in the instant case, the alleged
demand as well as receipt of the gratification other than legal remuneration on
the part of the appellant/accused have not been proved by the prosecution, in
view of the clear admission made by PW2 viz., complainant and the trial Court
without considering the above aspect has erroneously invited the conviction and
sentence against him and therefore, the conviction and sentence passed by the
trial Court are liable to be set aside.
21.Per contra, the learned Government Advocate (criminal side) has
sparingly contended that in the instant case, the alleged demand as well as
receipt of gratification other than legal remuneration by the accused have
clearly been proved by PWs.2 & 3 and other connected witnesses, and therefore,
the argument advanced by the learned counsel appearing for the appellant/accused
is of no use and the same is liable to be eschewed.
22.The learned counsel appearing for the appellant/accused has advanced
the above limb of argument on the basis of the evidence given by PW2 viz.,
complainant to the effect that the accused has received the cover in question by
way of thinking that it contains Form-III. It is an everlasting principle of law
that the evidence of witnesses should be read in whole and the Court cannot read
a portion of evidence by way of pick and choose. In the instant case, PW2
viz., complainant has clinchingly stated in his evidence about the alleged
demand made by the accused on 07.11.1996 and also on 19.11.1996 and further he
stated in his evidence that on 19.11.1996, he and PW3 have met the accused and
the accused has demanded money from him by way of making gesticulation. The
decoy witness by name Srinivasan is an Assistant Engineer and he has been
examined as PW3 and no motive has been suggested to him so as to give false
evidence against the accused and his clear testimonies are that on 19.11.1996 as
per the direction of the Inspector of Vigilance and Anticorruption, Pudukkottai,
he and PW2 have met the accused in his office and he demanded money from PW2 by
way of making gesticulation and PW2 has given the cover which contained Rs.800/-
and the same has been received by the accused and subsequently placed the same
in a drawer of a table and after getting signal from PW2, the Inspector of
Vigilance and Anticorruption and others have come to the office of the accused
and he recovered the amount in question from the accused. In fact, the
evidence of PW2 has been clearly corroborated by unshattered evidence of PW3.
By way of believing the testimonies given by PWs.2 & 3, the Court can easily
come to a conclusion that the accused has demanded the money in question from
the complainant and the complainant has given the same to the accused and he
accepted the same.
23.Of-course it is true that PW2, during fag end of his cross-examination,
admits to the effect that the accused has received the cover in question
thinking that it contains Form-III. But, as stated in many places, both PWs.2 &
3 have clearly stated in their evidence about the demand of money by the accused
as well as receipt of the same by him. Simply because PW2 has given evidence to
the effect mentioned supra, the Court cannot belittle the remaining portion of
evidence given by PW2 as well as the entire evidence given by PW3. Therefore,
the second attack made on the side of the appellant/accused cannot be accepted.
24.The learned counsel appearing for the appellant/accused has advanced
his residual argument stating that the specific case of the prosecution is that
the money alleged to have been given to the accused has been placed in a pink
colour cover and the same has not been subjected to chemical analysis and
therefore, the entire case of the prosecution is liable to be rejected.
25.In order to analyse the above argument, evidence of PW7 should be
scrutinished very carefully. It has already been pointed out that the concerned
Inspector has been examined as PW7. He would say in his evidence that the
accused has produced a pink colour cover and the same has been examined and
found Rs.800/- (Eight Hundred Rupees Currency Notes) and its numbers have been
compared with the numbers noted down in Ex.P6 and the same are tallied and
further he would say in his evidence that a brown colour cover has also been
taken and the same has been subjected to chemical examination and therefore, it
is very clear that the cover which contained the money in question has not been
subjected to chemical examination. It is only a flimsy mistake committed on the
side of the prosecution. Further the alleged demand of money as well as receipt
of the same by the accused from PW2 and also seizure have been clearly proved by
the prosecution. Since the above factual and legal aspects have been clearly
proved by the prosecution, it is needless to say that the said flimsy mistake
committed by the prosecution has not at all impinched its case. Therefore, the
residual argument advanced by the learned counsel appearing for the
appellant/accused is also equally sans merit.
26.Now the Court has to analyse the quantum of sentence imposed against
the appellant/accused under Sections 7 & 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988. The trial Court has awarded two years
rigorous imprisonment under the said Sections for each offence and also imposed
a fine of Rs.1000/- with default clause (In aggregation Rs.2,000/-).
27.Considering the quantum of amount received by the accused, this Court
is of the view that one year rigorous imprisonment for each offence would be
sufficient to meet the ends of justice and to that extent alone, the present
criminal appeal can be allowed.
28.In fine, this criminal appeal is allowed in part. The conviction
passed by the trial Court under Sections 7 & 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988 against the appellant/accused is confirmed,
but, the sentence imposed against him, for each offence is modified as follows;
The appellant/accused is sentenced to undergo one year rigorous
imprisonment for offences committed under Sections 7 & 13(2) read with 13(1)(d)
of the Prevention of Corruption Act, 1988. In other aspect, the judgment of the
trial Court is confirmed.
gcg
To:
1.The Addl. District Judge cum
Chief Judicial Magistrate, Pudukkottai.