IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 09.07.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.124 of 2001 L.Boopathi ..Appellant Versus State represented by The Inspector of Police ACB/CBI: Chennai ..Respondent Criminal Appeal filed against the Judgment dated 31.01.2001, made in C.C.No.203 of 1997, passed by the Principal Special Judge for CBI Cases, Chennai. For Appellant : Mr.K.Shankar For Respondents : Mr.N.Chandrasekaran Special Public Prosecutor CBI Cases. JUDGMENT
This appellant stands convicted by the learned Principal Special Judge for CBI Cases in C.C.No.203 of 1997 for offences under Section 7,11 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988, and he is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for six months for the offence under Section 7 and sentenced to undergo two years rigorous imprisonment and a fine of Rs.5000/- in default to undergo rigorous imprisonment for one year under Section 11 of the Prevention of Corruption Act and sentenced to undergo imprisonment for two years and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for one year for the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, and the sentence was ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant had preferred this appeal.
2. The case of the prosecution, in brief, is that at the time of occurrence, the accused was the Inspector of Police, CBI and he was posted at CBI Office at Sasthri Bhavan, Chennai. The CBI registered a case against the officials of Hindustan Photo Films, in R.C.No.31(A)/94 on 29.07.1994, in which P.W.2 also was one of the accused and searches were conducted. P.W.8, the Inspector of Police, CBI was the Investigating Officer in that case and he obtained a search warrant on 20.09.1994 from the Chief Metropolitan Magistrate. P.W.2 was the retired General Manager of Hindustan Photo Films and it was decided to conduct search of the residential premises. P.W.8 made an endorsement in the search warrant and nominated the Inspector of Police, Boopathy who is the accused in this case to conduct the search of the house of P.W.2. P.W.8 went to Hydrabad to make search of some places in connection with the same case. The accused Boopapathy went to Anandathandavapuram on 03.10.1994 for conducting searches at the residence of P.W.2 Mr.Ramamurthy. P.W.4 who was the Assistant Manager of Indian Overseas Bank at Mayiladuthurai and another Assistant Manager Mr.Swaminathan were requested to accompany the accused and Boopathy to stand as a witness for this search. All of them went in a Car and the house of P.W.2 was searched from 9.00a.m to 5.00p.m and 11 items of documents were seized and the search list Ex.P.3 was also prepared. As per Ex.P.3 and Ex.P.8, 11 items of documents were seized for the purpose of investigation. According to the evidence of P.W.2, an inventory was prepared for 38 items which were found in the house. Ex.P.2 contained three pages and P.W.2 signed in all the three pages. The accused Boopathy also taken the keys of the lockers at City Union Bank and P.W.2 was not given any receipt for that. On the next day at 04.10.1994 at about 10.45a.m, the accused Boopathy, the said Swaminathan and instead of P.W.4, Valliappan another witness P.W.5 Viswanathan along with the Police Constable Ravikumar went to his house in a Taxi. Then all of them along with P.W.2 went to Sivan temple. From there they went to Mayiladuthurai and reached the City Union Bank at 11.10a.m. The bank locker was opened and an inventory was prepared in which the witnesses and the bank Manager signed. Then they all went to the Bank of Baroda and the locker was opened and nothing was found in the locker. Then all of them went to Indian Overseas Bank. P.W.2 was in his Car and others went inside the bank. After 10 minutes, the accused only returned and he was holding a blank search list. The accused Boopathy showed it to P.W.2 and told that he had obtained the signatures of the witnesses Swaminathan and Valliappan and he had to make certain changes. Then accused and P.W.2 went to the house of P.W.2 and reached the house at 4.30p.m. Then the accused took P.W.2 to the safety room in the house and sitting in a chair, the accused asked P.W.2 to take out the jewel box from the Godrej Bureau. P.W.2 took the jewel box and kept it on the table. In the jewel box, four row chain of 40 sovereigns and two row chain of 20 sovereigns and two coins of two sovereigns were found in the office. The accused taking them in his hand told P.W.2 that he had to seize those jewels and had to freeze the account and also to arrest the accused and to register a case for possessing assets disproportionate to his income. At the same time, the accused told P.W.2, that as P.W.2 was aged person, he did not want to do that, but he wanted a sum of Rs.2.5 lakhs. Then the accused had dictated to P.W.2 to write the First Information Report, Ex.P.4 in R.C.No.31(A)/94. The accused took the jewel box and put them into a plastic bag and kept in his pant pocket. In the unfilled search list, the accused obtained the signature of P.W.2 as if he received a copy of it. He had also taken the copy of Ex.P.1 and P.3 which was given to P.W.2 on the previous day and torn into pieces, the copy of Ex.P.3. Again they went to Mayiladuthurai. The accused directed P.W.2 to come to Madras on the next day and also instructed to file a bail application for him. They reached the Cinema theater at Mayiladuthurai at 5.30p.m., and there the accused met an Advocate, Muthusamy who is related to P.W.2. The accused obtained the address of P.W.2’s son as he was residing at B-7, Sumanth Apartments, 165, R.K.Mutt road, Mandaveli, Chennai-28, and the accused asked P.W.2 to come and stay in that house. Ex.P.5 is the visiting card on the back side of which the address was noted by P.W.2.
3. On 05.10.1994, P.W.2 came to Chennai and stayed in the residence of his son. At about 7.00p.m., the accused came there with a brief case. The accused demanded a sum of Rs.2.5 lakhs a bribe. The accused also wanted to pledge the jewels which was taken by him and get money. The accused erased some of the signatures in the documents. The accused threatened P.W.2, if he was not making the payment of Rs.2.5 lakhs, he would search the house of the son also. The accused also told P.W.2 that the value of the jewels is Rs.2 lakhs and he demanded Rs.50,000/- to be paid by him in cash. The accused informed him that he would come on the next day. On 06.10.1994 at 7.45a.m., the accused again came to the house of P.W.2’s son and he erased some of the signatures on the documents. He also demanded for the payment of Rs.50,000/-. Again on 09.10.1994 at about 1.15p.m., the accused came and insisted P.W.2 to pledge the jewels. But P.W.2 had refused. He also demanded for a sum of Rs.50,000/- and asked him to make ready at least Rs.20,000/- and further told that he would come on 10.00a.m on the next day. P.W.2 had recorded the conversation between the accused and P.W.2 on 09.10.1994. On 10.10.1994, at 9.00a.m., P.W.2 prepared a complaint written by his son and he went to the CBI office at 10.55a.m. They gave the complaint Ex.P.6. He also handed over the cassette and also Ex.P.4. Then the Deputy Inspector General introduced P.W.9, the Inspector. P.W.9 received the complaint and perused the complaint and also other records. He registered a case in R.C.No.31(A)/94 and prepared the FIR under Ex.P.78 at 1.00 p.m. P.W.9 then invited P.W.3 Razhit Khan and another Rajagopal who were working in the State Bank of India and Indian Airlines to stand as a witness. Ex.P.7 entrustment mahazar was prepared. P.W.2 produced forty 500/- rupee notes which are marked as M.O.1 series. The witnesses were examined about the Phenolphthalein test. P.W.2 was also instructed to make the payment after demand and after payment is made, he was asked to give signal by coughing and asking for water from his daughter in law. It was also instructed to tape record the conversation betweens P.W.2 and the accused during their meeting. P.W.3 was instructed to be with P.W.2 and he was asked to be shown as relative of P.W.2 and others were directed to remain in a bedroom. The witness Ramamurthy was asked to remain outside the room accepting the signature. At about 6.00p.m., the party reached the house of P.W.2. At about 7.00p.m., the accused came to the house having seen a new person in the drawing room, the accused wanted to go to the downstairs to talk with P.W.2. P .W.2 informed to his junior paternal uncle who had come from Madurai and he had come to take treatment for his eyes and he was also short of hearing. Then the accused came to the reception hall and sat there. He also demanded a sum of Rs.2.5 lakhs. Having seen the door being opened, P.W.2 closed the door. He also demanded a sum of Rs.50,000/-. It was not possible for him to pay Rs.2.5 lakhs. The accused pay a sum of Rs.20,000/- and P.W.2 took the amount from his pocket and handed over to the accused. Then the accused opened a black bag and asked P.W.2 to keep the money in the bag and asked the accused to count it. The accused took out the money and counted it. Then the accused kept the search list on the table. He demanded for further amount of Rs.30,000/-. Then P.W.2 asked for water from his daughter in law. P.W.2 also knocked the door of the bedroom. Then P.W.9 and others came to the reception hall. P.W.9 introduced himself to the accused and the accused seeing P.W.9 and others started swetting and water was given to the accused. The accused was arrested and subsequently Phenolphthalein test was conducted and it proved positive. P.W.9 followed the formalities and prepared the recovery mahazar Ex.P.9. M.O.4 cassette was also seized. The house of the accused was also searched, but no documents was seized. On 11.10.1994, the locker of the accused Boopathy in the MCC Bank was searched by the Investigating Officer. Deputy Superintendent of Police Ramasamy also accompanied him. From the locker, the jewels M.O.2 series belonging to P.W.2 were seized. Ex.P.10 is the search list. P.W.9 is the Inspector of Police continued the investigation and examined the witnesses and laid the final report on 10.12.1996.
4. In order to establish its case, the prosecution examined 9 witnesses and marked 79 exhibits and produced 10 material objects. When the accused was questioned under Section 313 Cr.P.C with regard to the incriminating circumstances available against him, the accused had denied his complicity. The accused also filed a written statement under Section 243(1) Cr.P.C.
5. Mr.K.Shanker, learned counsel appearing for the appellant herein submitted that with regard to the alleged demand by the accused, the evidence of P.W.2 is not corroborated. According to P.W.2 the accused met him on 5.10.1994, 06.10.1994 and 09.10.1994 at the residence and P.W.2 also accepted in evidence that the demand made by the accused was known to all the family members, but no one from the family of P.W.2 was examined to corroborate the evidence of P.W.2. Even the demand of Rs.50,000/- is highly improbable, since even according to the prosecution, the accused had taken the jewels and some more jewels were available and as such there is no necessity for the accused to demand more money after taking the jewels. If he had wanted, he would have taken more jewels to his custody. The cassette in which the conversation said to have been recorded has not been displayed and the contents in the tape recorder have not been reduced into writing and placed before the court. It is further submitted that the recovery of the jewels belonging to P.W.2 from the locker of the accused is unbelievable, since the said recovery was not made as per Section 27 of the Evidence Act and the investigating officer also admitted that he did not record any statement of the accused. After completion of the trap proceedings, the accused was in the custody of the CBI and the independent mahazar witness were also not knowing under whose custody, the locker key was kept during the night after the trap. The particular CBI Officer Nandakumar who continued the search of the locker was not examined before the trial Court. That apart, Section 18 of the Prevention of Corruption Act is to the effect that only the Superintendent of Police and above rank officer could inspect any bankers book etc.,. Therefore, the search of the locker is illegal and the recovery of the jewels from the locker is unacceptable. The learned counsel further submitted that P.W.2 was motivated witness and according to his evidence, though he had decided to give complaint on 05.10.1994, ultimately he gave complaint only on 10.10.1994 and the delay for preferring the complaint throws considerable doubt with regard to the version of P.W.2 who is in the nature of accomplice and who is already an accused in a case registered against him.
6. The learned counsel for the appellant further submitted that with regard to the alleged trap proceedings and acceptance of bribe amount by the accused, the evidence let in by the prosecution is artificial and the explanation given by the accused and the written statement filed under Section 243(1) Cr.P.C is more probable than the prosecution version. According to the prosecution case, as per the evidence it is that, the accused has given drinking water after conducting the Phenolphthalein test, but this version is an introduced version which is quite contrary to the earlier version of P.Ws.2 and 3 made before the Police. According to the defence, the money was planted in the bag and the accused has not touched the money and therefore the glass in which he was given drinking water would not have contained any phenolphthalein. In order to suppress this fact, the prosecution has changed its version by stating that the accused was giving drinking water after the phenolphthalein test. As per Ex.P.9 entrustment mahazar, before the Sodium Carbonate Solution was prepared, the accused was asking water and it was given to him. The said mahazar Ex.P.9 has been signed by all the witnesses and they have all been confronted. When P.W.2, P.W.3 and P.W.9 were confronted with Ex.P.9, that the accused was given water before Phenolphthalein test. In the said circumstance, the version of the defence that tumbler was recovered by the investigating Officer and the same was given to the analyst report and the analysis report has been suppressed is probablised. Consequently the theory of the defence that money was planted becomes probable and acceptable.
7. The learned Special Public Prosecutor for CBI Cases submitted that P.W.2 had specifically stated about the demand made by the accused on 04.10.1994 around 4.30p.m., in his house and again on 05.10.1994, around 7.30p.m., accused visited the house of P.W.2’s son at Madras and making demand and similar demand being rebutted on 06.10.1994 at about 7.45p.m. Again making similar demand on 09.10.1994 at about 1.15p.m. The conversation that took place between the accused and P.W.2 on 09.10.1993 has been recorded by M.O.3. Though the demand was made from 04.10.1994 continuously as accused persisted his demand, P.W.2 had chosen to give complaint on 10.10.1994 and therefore it cannot be said that there was a delay in preferring the complaint affecting the prosecution version. It is further submitted that the demand of Rs.50,000/- in cash is not improbable since the accused wanted the bribe to be in a liquid cash form. Though the accused had taken the jewel of P.W.2 he was all along insisting P.W.2 to pledge those jewels and get sum of Rs.2 lakhs to be paid to him. Therefore, the total demand by the accused was 2.5 lakhs.
8. The learned Special Public Prosecutor further pointed out that with regard to acceptance of the bribe amount, the phenolphthalein test proved positive. The explanation of the accused that CBI officers asked him to open the bag and directed him to take the money and place it on the table is only a belated one and false. Such version is not corroborated by the evidence of any witness or any other material. It was further submitted that with regard to recovery of jewels from P.W.2 from the locker of the accused, it is spoken by P.W.6 the bank manager who had stated that he was present at the time of search of the locker and he had also signed in Ex.P.39.
9. This court considered the submission made by both parties and perused the evidence of witnesses and other records.
10. According to the prosecution, there are two sets of allegations against the accused. The first one is that after search of the house of P.W.2, the accused had taken M.O.2 series, gold chains and gold coins of P.W.2 and kept it in his possession without any record. The second set of allegation is that the accused made a demand of Rs.2.5 lakhs as bribe and adjusted the value of the 60 sovereigns of jewels for Rs.2 lakhs and demanded the balance amount of Rs.50,000/-. Ultimately on the date of trap, he had received a sum of Rs.20,000/- as bribe.
11. With regard to the search of the house of P.W.2, apart from P.W.2, P.W.4 and P.W.5 also given evidence. P.W.4 had accompanied the accused on 03.10.1994 and P.W.5 accompanied the accused on 04.10.1994. On 03.10.1994, there was no demand from the accused, but on 04.10.1994, the demand was made by the accused in the house of P.W.2 and M.O.2 series jewels were also taken from the house at that time. P.W.5 who had accompanied the accused on that day had stated that the accused left him at the bank at 4.00p.m., but he had stated that he had not accompanied the accused from 4.00p.m. to 5.30p.m. As such the evidence of P.W.2 only remains with regard to the demand made by the accused on 04.10.1994 and with regard to the evidence of taking the jewels for M.O.2 series and about demanding the bribe amount. Though there is no corroboration for the demand made by the accused on 04.10.1994, the jewels M.O.2 series which is said to have been taken by the accused on 04.10.1994 were available in the locker of the accused in M.C.C.Bank. On 11.10.1994, when the locker was searched by the Inspector of Police, Nandakumar in the presence of P.W.6 who is the Manager of the Bank, M.O.2 series jewels were found. P.W.6, the bank Manager has signed in Ex.P.49, the search list for the locker. He had stated in his cross examination that the locker was opened by himself and by the accused. From these evidence, it is clear that after the locker was opened by P.W.3 and the accused, the search was made and M.O.2 series were found in the locker. In Ex.P.49 the accused also signed. Though the accused had stated in his written statement that he was forced to sign in Ex.P.47, Bank Ledger Folio No.91, no suggestion is put to P.W.6 to the effect denying his evidence that the accused also singed at the same time. Apart from Ex.P.47, in the search list prepared with the details of the property seized from the locker Ex.P.10, P.W.6 and P.W.2 also signed. The accused also signed in Ex.P.10 for having received a copy. It is contended by the defence that the Inspector of Police, Nandakumar who conducted the search of locker was not examined and also that under Section 18 of the Prevention of Corruption Act, only the Superintendent of Police or the Officer specially authorised by Superintendent of Police or above his rank, should conduct search in that regard. Admittedly the Inspector of Police, Nandakumar has not been examined in this case. The prosecution ought to have examined the Inspector of Police, Nandakumar, since the recovery of jewels from the locker of the accused is an important link in this case. It is not known as to how the Inspector of Police, Nandakumar was not examined, but anyhow the evidence of P.W.6 being accepted in whose presence the locker was opened, the non examination of the Inspector of Police, Nandakumar does not affect the prosecution case.
12. Section 18 of the Prevention of Corruption Act, 1988, is as follows:
“18. Power to inspect bankers’ books:- If from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under Section 17 and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers’ books, than, notwithstanding anything contained in any law for time being in force, he may inspect any bankers’ books in so far as they relate to the accounts of the persons suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this section:
Provided that no power under this Section in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.
Explanation: In this section, the expressions “bank” and “bankers’ books” shall have the meaning respectively assigned to them in the Bankers’ Books Evidence Act, 1891 (18 of 1891).”
As per the Bankers Books Evidence Act, the bankers book is as follows:
“Bankers’ books” include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of a bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic date retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both;”
Locker in the bank is only personal storage on payment of rent. It is not an account in Bankers’ Books as per definition mentioned above.
13. Therefore there is no violation of Section 18 by the Inspector of Police who made search of the locker. Further as per remarks made in Ex.P.10 accused had been present and signed the ledger before opening the locker.
14. In view of the recovery of M.O.2 series from the accused being accepted, further corroboration from the evidence of P.W.2 with regard to the demand of bribe is unnecessary and if available, it is only superfluous. Therefore, this Court holds that the accused who is the CBI Inspector of Police, had taken valuable things of P.W.2, M.O.2 series as illegal gratification. This part of the prosecution evidence itself establishes the offences against the accused under Section 7 and 11 of the Prevention of the Corruption Act.
15. With regard to the trap that had taken place on 10.10.1994, the delay of five days in giving complaint by P.W.2 may not affect the case, since P.W.2 being named as an accused by CBI officials, he could not have been in a position to take a decision immediately and give the complaint. Even after taking the jewels, as the accused persisted his demand for a further sum of Rs.50,000/- ultimately P.W.2 had decided to give complaint against the accused.
16. The evidence of P.W.2 with regard to the accused receiving the bribe amount of Rs.20,000/- is corroborated by positive phenolphthalein test. Though it is contended by the defence, the glass tumbler in which the accused was giving water though was objected to take phenolphthalein test report has not been suppressed. As per Ex.P.79 analyst report, the phenolphthalein test conducted proved positive. Though there appears to be some variation with regard to the water being to the accused, whether it was before conducting the phenolphthalein test or after conducting the phenolphthalein test, it does not affect the evidence with regard to the trap proceeding. Even in the written explanation given by the accused, he is not specific that the amount was kept in the bag by P.W.2. On the other hand, accused had signed in Ex.P.9 for receiving the copy of Ex.P.9. He had not objected to what was stated in Ex.P.9. Absolutely there is no reason for P.W.9, CBI Inspector to depose falsely against the Officer of his own department. In the result, this Court holds that prosecution has proved its case against the appellant/accused.
17. With regard to the sentence imposed on the accused, the maximum sentence of imprisonment awarded by the trial Court is only two years. Though the maximum sentence provided is seven years and the minimum sentence is one year under Section 13(2) of the Act, this Court does not want to reduce further the sentence of imprisonment imposed on the accused, since the sentence already imposed on him itself being lesser wherein he ought to have been given more stringent sentence. It is very unfortunate to note that a responsible police officer instead of taking action for corruption, indulging in corruption which proves Tamil Proverb “ntypna gapiu nka;fpwJ” (Law maker is the Law Breaker). This Court confirms the sentence imposed on the accused by the trial Court as it is not excessive.
18. In the result, the appeal is dismissed.
09.07.2008
Index:yes/no
Internet:yes/no
ksr
To
1. The Principal Special Judge
for CBI Cases.
Chennai.
2. The Public Prosecutor
Chennai.
T. SUDANTHIRAM, J.
ksr
Criminal Appeal No.124 of 2001
09.07.2008