{"id":142392,"date":"2010-07-30T00:00:00","date_gmt":"2010-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chinnamoni-vs-state-by-on-30-july-2010"},"modified":"2015-12-17T20:47:01","modified_gmt":"2015-12-17T15:17:01","slug":"chinnamoni-vs-state-by-on-30-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chinnamoni-vs-state-by-on-30-july-2010","title":{"rendered":"Chinnamoni vs State By on 30 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Chinnamoni vs State By on 30 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 30\/07\/2010\n\nCoram\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCriminal Appeal (MD) No.649 of 2007\nand\nCriminal Appeal (MD) No.650 of 2007\n\nChinnamoni\t\t\t\t\nFormerly Special Sub-Inspector of police,\nKanyakumari Police Station,\nKanyakumari.\t\t\t\t ... Petitioner in\n\t\t\t\t\t  C.A.No.649 of 2007\n\nP.Paul Nadar\t\t\t\t\nFormer Head Constable 307,\nKanyakumari Police Station,\nKanyakumari District.\t\t\t ... Petitioner in\n\t\t\t\t\t   C.A.No.650 of 2007\n\n\nVs\n\nState by\nThe Inspector of Police,\nVigilance and Anti-Corruption,\nNagercoil,\nKanyakumari District\t\t ... Respondent in both \t\t\t\t\n\t\t\t\t     C.As.\n\n\nCriminal Appeals filed under Sections 374 Cr.P.C. r\/w Section 27 of\nPrevention of Corruption Act, 1988 to reverse the findings of the lower Court\nset aside the conviction and sentence imposed on the appellant passed in Special\nCase No.3 of 2002 dated 05.12.2007, on the file of the Court of the Chief\nJudicial Magistrate-cum-Special Judge, Nagercoil.\n\n!For Petitioner   ... M\/s.M.Pattu Rajan\nin C.A.650\/2007\nFor Petitioner    ... Mr.R.Shanmugasundaram\nin C.A.649\/2007       Senior Counsel\n\t\t      for M\/s.C.Mayilvahana Rajendran\n\n^For Respondent   ... Mr.P.Rajendran\n\t\t      Government Advocate (Crl. side)\n***\n<\/pre>\n
:COMMON JUDGMENT<\/p>\n
\tThe appellants, who are accused 1 and 2, have come forward with these
\nappeals challenging their conviction and sentence passed by the Chief Judicial
\nMagistrate-cum-Special Judge, Nagercoil, in Special Case No.3 of 2002, dated
\n05.12.2007, convicting the first accused for an alleged offence under Section 7
\n(two counts) and 13(2) r\/w. 13(1)(e) of Prevention of Corruption Act, 1988 (two
\ncounts) and the second accused for an alleged offence under Section 7 and 13(2)
\nr\/w. 13(1)(e) of Prevention of Corruption Act, 1988 and sentenced them to
\nundergo Rigorous Imprisonment for 5 years for each offence and to pay a fine of
\nRs.10,000\/- for each offence, in default, to undergo Rigorous Imprisonment for
\none year.\n<\/p>\n
\t2. The following is the prosecution case shorn of necessary details:
\n\t2(a). P.W.2, on 04.10.1999 at about 1.00 p.m. was coming in a motor cycle
\nbearing Registration No.TN-72-5802, belonging to his brother-in-law Thangamuthu,
\nfrom Kannangulam to Kottaram to purchase nails. Near old Registrar Office, along
\nthe Kottaram Periyavilai road, the first and second accused who are Sub-
\nInspector of Police and Head Constable respectively, working in Kanyakumari
\nPolice Station along with three other cops intercepted him and told him that his
\n(P.W.2) brother’s son Balakrishnan used to sell illicit liquor (Aristom) but he
\nwould not pay “mamool” to the police. They took him to Kanyakumari police
\nstation and asked him to sit there.  The first accused took Rs.370\/- from P.W.2.
\nP.W.2 pleaded not guilty however, they did not heed to his words.  He was
\ndetained in the police station and on 05.10.1999 morning he was informed that
\nthey had registered a case against him, as if he possessed illicit liquor.  At
\nabout 01.00 p.m. they brought him to police station, that the first accused told
\nhim that only if he admitted the offence he would return the motorcycle
\notherwise he would again arrest him and sent him behind the bars by registering
\na case that he was keeping Kanja in the motorcycle. Hence, P.W.2 admitted the
\noffence in the Court and paid a fine of Rs.300\/-.  The second accused paid the
\nsaid amount out of Rs.370\/- which was snatched from him.\n<\/p>\n
\t2(b). He was taken to the police station at 4.00 p.m. and the first
\naccused demanded him Rs.1,000\/- for returning of his vehicle.  Hence, P.W.2 went
\nto the house and got Rs.1,000\/- from his brother-in-law and came back to police
\nstation at 7.00 p.m. and gave the amount to the first accused, who after
\nreceiving the same, further demanded Rs.1,000\/- and only on such payment, he
\nwould release the motorcycle.  He was also threatened that he would foist the
\ncase that he was possessing kanja.  He has told that he do not have money, for
\nwhich, the first accused told to bring the amount before evening of Friday and
\ntake the vehicle and if he were not in the police station, he might pay the
\namount to the second accused.  P.W.2 felt bad of giving bribe and hence, on
\n08.10.1999 at about 10.00 a.m. he gave the complaint Ex.P2 before the respondent
\npolice and the same was registered in Crime No.2\/1999 under Section 7 of
\nPrevention of Corruption Act.\n<\/p>\n
\t2(c). On receipt of the complaint, Ex.P17 First Information Report was
\nlodged. P.W.19 the respondent police, after getting permission from P.W.20
\nDeputy Superintendent of Police, registered a case.  He has sent the First
\nInformation Report to the Chief Judicial Magistrate Court, Nagercoil, and gave
\nthe copy of the same to P.W.2 on acknowledgment.  He gave an intimation to P.W.3
\nTheivanayagam, who is an Agricultural Officer working in the Office of Joint
\nDirector of Agriculture, Nagercoil and one Mariapushbakaran, Office
\nSuperintendent in Chief Educational Office, Nagercoil to be witnesses.  Both of
\nthem were called to the respondent office and they were introduced to P.W.2.
\nThe witnesses were given copies of First Information Report which they read.
\nP.W.2 admitted the contents as true. At the direction of P.W.19, P.W.2 gave the
\nmoney to Mariapushbakaran who counted the same and told that they were ten notes
\nof Rs.100\/- denomination.  P.W.19 asked Mariapushbakaran to place the currency
\non the table.  He also arranged to prepare Sodium Carbonate solution in a glass
\nand asked Mariapushpakaran to dip his right hand fingers in the solution and
\nthere was no change in colour.  P.W.19, directed the Head Constable Subramanian
\nto apply phenolphthalein powder on the currencies on both the sides of each
\nnote, and he did it.  P.W.19, further, asked Mariapushbakaran to count the notes
\nand he counted.  He asked the witness to dip his right hand fingers in the
\nSodium Carbonate solution who did it which resulted in the change of colour into
\npink.  P.W.19 demonstrated the phenolphthalein test and explained its
\nsignificance.\n<\/p>\n
\t2(d). After verifying the shirt pocket of P.W.2 whether it contained any
\nother currencies or articles, and verified as the same was empty, the Head
\nConstable placed the currencies into the pocket of P.W.2.  P.W.19 asked P.W.2 to
\ngo to Kanyakumari police station, meet the first accused and to pay the amount
\nonly, if he demanded and if he received the amount he (P.W.2) had to come out of
\nthe police station and show signal to the respondent police by folding the left
\nsleeves of his full hand shirt.  He also requested P.W.3 to accompany P.W.2 and
\nto watch the events.  He prepared Ex.P4 Mahazar containing the above said
\nparticulars in which, the witnesses, P.W.19 Sub Inspector of Police and P.W.2
\nput their signatures.  P.W.19, despatched the said mahazar after 2.20 p.m. on
\n08.10.1999 to the Chief Judicial Magistrate Court, Nagercoil. The said mahazar
\ncontained serial numbers of the currencies.\n<\/p>\n
\t2(e). Afterwards, they proceeded in the Government vehicle bearing
\nRegistration No.TN-01-G-0001 and reached the Township lodge in Kanyakumari at
\nabout 2.50 p.m.  P.W.19 asked P.Ws.2 and 3 to go to Kanyakumari police station
\nand to act in accordance with the instructions given by him.  At about 3.35 p.m.
\nP.W.2 came out from police station and showed pre-arranged signal to the
\nrespondent police by folding his left hand sleeves of the shirt.  Immediately,
\nP.W.19 along with Mariapushbakaran and police party entered into the police
\nstation and saw both the accused sitting in writer’s room.  The witnesses were
\nintroduced to both the accused.  P.W.19 prepared Sodium Carbonate solution and
\nhe enquired P.Ws.2 and 3 as to what happened, and P.W.2 responded that he came
\nto the police station and the first accused asked him whether he brought money,
\nfor which, he answered in affirmative and he asked P.W.2 to give the amount to
\nsecond accused, that the second accused took him to the verandah in the Women
\nPolice station and asked him to pay money and received it from P.W.2 by his
\nright hand and put the same in his left shirt pocket and again came to writer’s
\nroom and asked P.W.2 whether he had brought R.C. book for the vehicle, for
\nwhich, he replied in negative and that he further told that the first accused
\ninsisted for the production of R.C. Book.\n<\/p>\n
\t2(f). P.W.19, further asked the second accused to dip his right hand
\nfingers into the Sodium Carbonate solution, who dipped and the solution turned
\nto pink.  While the second accused was quizzed about the money received from
\nP.W.2, he produced the same from his left shirt pocket and placed it on the
\ntable.  P.W.19 asked P.W.3 and Mariapushbakaran to compare the serial numbers of
\nthe currency notes with the numbers written in the mahazar.  After comparing
\nthem, they told that both are alike.\n<\/p>\n
\t2(g). P.W.19 got the shirt worn by second accused and dipped the left
\npocket portion into the Sodium Carbonate solution, which resulted in the turning
\nof colour pink.  The second accused was given another shirt which was in the
\npolice station.  P.W.19 also seized the Case Diary in Crime No.731, 732\/99
\nregistered under Section 4(1)(a) of Prohibition Act which was registered against
\nP.W.2. While the second accused was queried, he told that on 04.10.1999, P.W.2
\nbrought the motorcycle to the police station and kept the same and he directed
\nP.W.2 to produce R.C. and take back the motorcycle.\n<\/p>\n
\t2(h). P.W.19 prepared two samples of 180 ml. in two bottles which
\ncontained the pink turned solution at the time of dipping of fingers by the
\nsecond accused and his shirt. Both of them were recovered under mahazar.  The
\ncurrencies, diesel bullet motorcycle bearing Registration No.TN-72-5802 and its
\nkey were seized under cover of mahazar. P.W.19 arrested both the accused at 5.00
\npm. in Kanyakumari police station, for which he prepared another mahazar which
\nwere signed by P.W.3, Mariapushbakaran and Sub Inspector of police Sarkaravarthy
\nas well.  He also prepared observation mahazar and rough sketch Ex.P8.\n<\/p>\n
\t2(i). After sending the intimation to the Chief Judicial Magistrate,
\nP.W.19 proceeded to the residence of second accused in police quarters and made
\na search in the house.  Then, he went to Cauvery lodge at Kanyakumari and
\nsearched Room No.24, where the first accused was staying.  He prepared search
\nlist in both the places which were inked by witnesses. P.W.19 also gave copy of
\nsearch list to each of the accused.  He also searched another residence of the
\nsecond accused and the house of the first accused, prepared search list and
\nobtained signatures of the witnesses.  The prior intimation to the Court is
\nEx.P39 with regard to the search.  At about 10.00 p.m. on 08.10.1999, he brought
\nthe accused and case properties to the respondent police station and gave
\nrequest to the Court to alter the provisions of law under Section 7 r\/w 13(2)
\nr\/w 13(1)(d) under Ex.P40.  He sent both the accused for judicial custody and
\nthe case properties to the Court under Form 95.  Thereafter, he placed the file
\nfor further investigation before P.W.20.\n<\/p>\n
\t2(j). P.W.20 examined all the witnesses from P.Ws.2 to 18 and recorded
\ntheir statements.  After completion of investigation, he sent the final report
\nto the Director of Anti-Corruption Department and also made request to
\nSuperintendent of Police, Kanyakumari District, for  sanction to prosecute the
\naccused. P.W.1 accorded sanction under Ex.P1.  Thereafter, he laid charge sheet
\nagainst the accused under Sections 7 and 13(2) r\/w Section 13(1)(d) against the
\naccused.  When both the accused were questioned under Section 313 Cr.P.C., both
\nof them denied complicity in the offence.  The first accused submitted that he
\ndid not demand any bribe from P.W.2, that registration of the case is the
\noutcome of hostility with P.W.2, his brother-in-law Thangamuthu and his
\nconfederate Ponniah against whom he initiated action on their hooch trade, that
\nfrom 05.10.1999 till 07.10.1999 he was in FLB School election counting centre on
\nanti-sabotage check duty, that he did not keep the motorcycle bearing
\nRegistration No.TN-72-5802 in the police station, that the Inspector of Police
\nof Kanyakumari police station knew about the parking of the vehicle there, that
\nthe motorcycle was kept in the police station by P.W.2 himself, that since he
\nregistered a case under Prohibition Act against P.W.2, he laid the complaint and
\nthat both P.W.2 and his associate Ponniah admitted the offence through their
\nlawyer and paid fine and that he is innocent.\n<\/p>\n
\t2(k). The second accused had submitted before the Trial Court that on
\n04.10.1999 he was deputed in process duty, that on 08.10.1999 after process duty
\nwas over at about 3.00 or 3.30 p.m., while he was standing near the Women Police
\nStation, P.W.2 came there with money and while he tendered the same to him he
\nasked for what reason he was giving the money, for which, he did not give any
\nreply, however, he planted the money into his pocket.  Immediately, he took the
\nmoney and forcibly keep into the hands of P.W.2 and at that time vigilance
\npolice came and got the amount and that he is an innocent. Both the accused have
\nnot examined any witnesses and there was no documents marked on their side.\n<\/p>\n
\t3. The point for consideration is, whether the prosecution has brought
\nhome the guilt of the accused beyond reasonable doubt.\n<\/p>\n
Point:\n<\/p>\n
\tP.W.1, the Superintendent of Police, Kanyakumari District accorded
\nsanction under Ex.P1 for prosecution of his subordinates, both the accused.  He
\nwas examined and in his cross-examination, it was suggested that he had not
\ncarefully scrutinised the documents and that the sanction is illegal.  He
\nanswered in negative.  There is nothing to conclude that the sanction order
\nsuffers from any infirmity or illegality.\n<\/p>\n
\t4. P.W.2 is the author of the complaint. As detailed in the complaint, he
\ngraphically narrated all the events contained in his complaint and oral
\nevidence.  His chief examination was recorded on 26.04.2004 and he was examined
\nin cross on behalf of the first accused on 24.09.2004 and he was adhering to
\nwhat he stated in his chief examination.  As far as the materials available in
\nthe cross examination by the first accused is concerned, his evidence could not
\nbe discorded.  However, while he was examined in cross on behalf of the second
\naccused on 08.10.1999, he turned hostile to the prosecution.  He disclaimed
\ndemand of bribe by the first accused and payment of money to second accused and
\nother details as well.  He would say that he went into the police station with
\nmoney along with a Government witness and he got anxiety since the person
\nconcerned did not receive the money and hence, he asked the Government witness,
\nto whom the money had to be paid, for which, he told that he may give it to
\nanybody else and hence, he planted the money into the pocket of the second
\naccused.  He was treated as hostile witness and examined in cross by
\nprosecution.  In the cross examination by the prosecution, he says that the
\nfirst accused asked him whether he brought the money and he asked him to give it
\nto the second accused.\n<\/p>\n
\t5. He further confirmed in the cross examination that it is true to state
\nthat the first accused said so. He also says that in his chief examination, he
\nhad paid the money to the second accused who received it and kept it in his
\nshirt pocket and went into the police station asking him to bring R.C. book. In
\nthe chief examination and cross examination by the fist accused, P.W.2 has
\ncategorically stated that the first accused directed him to pay the money to the
\nsecond accused and he paid the same to the second accused who received it and
\nkept in his shirt pocket.  In these circumstances, his hostility to the
\nprosecution as far as the second accused is concerned, would not weaken the
\nprosecution case.  His evidence in cross examination by the second accused has
\nto be disbelieved which is eschewed.\n<\/p>\n
\t6. P.W.3 is a responsible Government Officer who on the direction of the
\ninvestigation officer accompanied P.W.2 to the police station and witnessed the
\nevents.  He, in his oral evidence, has elaborately stated about what had
\nhappened in the police station.  He is definite that the first accused asked
\nP.W.2 whether he had brought money and he also directed him to pay the money to
\nthe second accused and the amount was tendered to the second accused near the
\nWomen Police station, who received the same and kept it in his shirt pocket. He
\nfurther added that after receipt of the amount, the second accused entered into
\nthe police station and both the accused conversed in low voice.  He also gave a
\ndetailed account with regard to the seizure of money from the second accused
\npreparation of Sodium Carbonate solution, dipping of right hand fingers of the
\nsecond accused, and colour change of solution into pink and the test his shirt,
\nrecovery of Case Diary filed in Crime Nos.731, 732\/1999, and recovery of the
\nmotorcycle, etc. He also supported the prosecution case as to the search of
\nhouses of both the accused by P.W.19 and preparation of search list Exs.P8 and
\nP9. He has also prepared two other mahazars Ex.P6 and P7 stated above.  He
\nrevealed nothing adverse in his cross examination from what he deposed in his
\nchief examination.  He is a third person to both the accused.  No motive could
\nbe attributed against him and no motive was suggested to him against the
\naccused.  There is no impediment for the Court to place reliance upon his oral
\nevidence.\n<\/p>\n
\t7. Mr.R.Shanmugasundaram, learned Senior Counsel appearing for the first
\naccused would argue that when no demand is established by the prosecution, the
\nentire case will go and the accused could not be held to be guilty.  It is his
\ncontention that there shall be material to show that there were demands and
\nacceptance for discharge of an official duty and if the money was put elsewhere
\nwithout his knowledge, he cannot be stated to have committed offence.  In
\nsupport of his contention, he placed reliance upon a decision of the Hon’ble
\nSupreme Court reported in 2010 (2) Supreme Court 760 (Banarsi Dass v. State of
\nHaryana)<\/a> wherein it is held thus:\n<\/p>\n
\t“11. To constitute an offence under Section 161 of the IPC it is necessary
\nfor the prosecution to prove that there was demand of money and the same was
\nvoluntarily accepted by the accused.  Similarly, in terms of Section 5(1)(d) of
\nthe Act, the demand and acceptance of the money for doing a favour in discharge
\nof its official duties is sine qua non to the conviction of the accused.  In the
\ncase of M.K.Harshan v. State of Kerala<\/a> (1996 (11) SCC 720), this Court in
\nsomewhat similar circumstances, where the tainted money was kept in the drawer
\nwithout his knowledge, held as under:\n<\/p>\n
\t“… It is in this context the Courts have cautioned that as a rule of
\nprudence, some corroboration is necessary.  In all such type of cases of
\nbribery, two aspects are important.  Firstly, there must be a demand and
\nsecondly there must be acceptance in the sense that the accused has obtained the
\nillegal gratification.  Mere demand by itself is not sufficient to establish the
\noffence. Therefore, the other aspect, namely, acceptance is very important and
\nwhen the accused has come forward with a plea that the currency notes were put
\nin the drawer without his knowledge, then there must be clinching evidence to
\nshow that it was with the tacit approval of the accused that the money had been
\nput in the drawer as an illegal gratification.  Unfortunately, on this aspect in
\nthe present case we have no other evidence except that of P.W.1. Since P.W.1’s
\nevidence suffers from infirmities, we sought to find some corroboration but in
\nvain. There is no other witness or any other circumstance which supports the
\nevidence of P.W.1 that this tainted money as a bribe was put in the drawer, as
\ndirected by the accused.  Unless we are satisfied on this aspect, it is
\ndifficult to hold that the accused tacitly accepted the illegal gratification or
\nobtained the same within the meaning of Section 5(1) (d) of the Act,
\nparticularly when the version of the accused appears to be probable.”\n<\/p>\n
\t12. Reliance on behalf of the appellant was placed upon the judgment of
\nthis Court in the case of C.M.Girish Babu (supra) wherein the facts of the case
\nthe Court took the view that mere recovery of money from the accused by itself
\nis not enough in absence of substantive evidence for demand and acceptance.  The
\nCourt held that there was no voluntary acceptance of the money knowing it to be
\na bribe and giving advantage to the accused of the evidence on record, the Court
\nin para 18 and 20 of the judgment held as under:\n<\/p>\n
\t“18. In Suraj Mal v. State (Delhi Admn.)<\/a> [1979 (4) SCC 725] this Court
\ntook the view that (at SCC p.727, para 2) mere recovery of tainted money
\ndivorced from the circumstances under which it is paid is not sufficient to
\nconvict the accused when the substantive evidence in the case is not reliable.
\nThe mere recovery by itself cannot prove the charge of the prosecution against
\nthe accused, in the absence of any evidence to prove payment of bribe or to show
\nthat the accused voluntarily accepted the money knowing it to be bribe.”\n<\/p>\n
\t8. As far as the present case on hand is concerned, there is a definite
\nversion from P.Ws.2 and 3 that the first accused demanded bribe from P.W.2 and
\ndirected him to hand over it to the second accused and the same was also
\ntendered to the second accused.  As per the clinching oral evidence, both the
\nrequirements supra, required by law are very much available.  Even though there
\nwas no specific demand on the part of the second accused, while P.W.2 gave the
\namount he received the same and put it in his pocket.  Afterwards, he proceeded
\ninto the police station and the first accused spoke to him about the money in
\nhis pocket.  While P.W.2 gave signal to the respondent police and investigation
\nofficer and other witnesses entered into the police station, both the accused
\nwere sitting in the writer’s room, of course, with the money kept in the shirt
\npocket of second accused and only after the Sodium Carbonate solution prepared
\nby the investigation officer he produced the money from his pocket.  Hence, from
\nreceipt of the money from P.W.2 till the preparation of Sodium Carbonate
\nsolution by the investigation officer, the money was lying in the pocket of
\nsecond accused.  Neither he refused to get the money from P.W.2 nor had he
\nplaced it somewhere else other than his pocket.  It is to be noticed that he was
\npresent while the first accused directed P.W.2 to pay the amount to him.  He was
\nkeeping quite and he was consenting party to the receipt of bribe. Hence, the
\ndemand and acceptance by receiving the amount and keeping the same in his pocket
\nare available in this case.  The demand and acceptance on the part of both the
\naccused have been proved by the prosecution.\n<\/p>\n
\t9. The learned Senior Counsel also garnered support from a decision of the
\nHon’ble Apex Court reported in AIR 1979 SC 1408 (Suraj Mal v. The State (Delhi
\nAdministration))<\/a> in which it is held that in a case of bribery, mere recovery of
\nmoney divorced from the circumstances under which it is paid is not sufficient
\nto convict the accused when the substantive evidence in the case is not
\nreliable. But, in the present case, not only the recovery of money but also
\nother attending circumstances have been proved by the prosecution.\n<\/p>\n
\t10. In (2006) 1 Supreme Court Cases (Cri) 401, (T.Subramanian v. State of
\nTamil Nadu),<\/a> it is held that if the reason for receiving the amount is explained
\nand the explanation is probable and reasonable, then the appellant had to be
\nacquitted.  Inthe case on hand, there is no such explanation from the accused
\nside for the possession of the money.\n<\/p>\n
\t11. In (2007) 1 MLJ (Crl) 430 (Ramakrishnan v. State rep. by Inspector of
\nPolice, D & VAC, Chennai), while dealing with the case under the Prevention of
\nCorruption Act, this Court, after referring to the decision in T.Subramanian
\ncase supra, has held as follows:\n<\/p>\n
\t“9. At the outset, it is to be stated that it is well settled by a catena
\nof decisions of the Hon’ble Supreme Court of India that mere proof of receipt of
\nthe money by an accused in the absence ofproof of demand and acceptance of money
\nas illegal gratification will not be sufficient to establish the guilt of the
\naccused in a corruption case. Recently, the Hon’ble Supreme Court of India has
\nheld in T.Subramanian v. State of Tamil<\/a> nadu reported in (2006) 1 SCC (Cri.) 401
\nthat:\n<\/p>\n
  \t“Mere proof of receipt of money by accused, in absence of proof of demand
\nand acceptance of money as illegal gratification, not sufficient to establish
\nguilt of accused.  If accused offers reasonable and probable explanation based
\non evidence that the money was accepted by him, other than as an illegal
\ngratification, accused would be entitled to acquittal”.\n<\/p>\n
\tAs adverted to supra, the demand and acceptance of money have been
\nestablished by the prosecution.\n<\/p>\n
\t12. Mr.M.Pattu Rajan, learned counsel for the second accused  would cite a
\ndecision reported in AIR 1994 Supreme Court 1538 (Babu Lal Bajpai v. State of
\nU.P.,)<\/a> in which it is held as follows:\n<\/p>\n
\t“The case of the accused is that the complainant had tried to thrust the
\nmoney in his pocket and he had resisted the said attempt, and thrown down the
\nmoney on the floor.  This version of the accused has been supported by the
\nprosecution witness Raghubir Singh who is the adjacent shop-keeper and in whose
\nshop the testing of ultra violet rays on the currency notes was made.  Since he
\nwas aware of what was going to happen he had naturally moved near the shop of
\nthe trap.  According to this witness he was standing outside the said shop and
\nhad heard the conversation inside the shop where the trap was laid.  There is no
\nreason why this witness who is a stranger both to the prosecution as well as to
\nthe accused would support the version of the accused, as stated above, if that
\nwas not the true version. The trial Court has also relied upon, and according to
\nus rightly, this version of the said prosecution witness. These are two of the
\nmost important reasons given by the trial Court for acquitting the accused.  The
\nHigh Court has ignored these reasons and has tried to substitute its own finding
\nwhich unfortunately is based on surmises.  We are, therefore, more than
\nsatisfied that this was not a case where any interference with the finding of
\nthe trial Court was called for.  In the circumstances, we are of the view that
\nthe impugned order of the High Court deserves to be set aside and the appellant-
\naccused should be acquitted of both the charges.”\n<\/p>\n
\t13. In the above said case, while the money was thrusted into the pocket
\nof the accused, he showed resistance and threw the money on the floor. But in
\nthe present case, it did not happen.  The money was in the pocket of the second
\naccused for a considerable time after he received it, till preparation of Sodium
\nCarbonate solution by the Investigation Officer. Had the second accuse refused
\nto receive the money or he placed it elsewhere other then his pocket, he can
\ntake recourse to the principles in the above said decision.  In this regard, the
\noral evidence of P.W.3 has to be believed.\n<\/p>\n
\t14. In view of the above, the representation by the second accused that
\nthe P.W.2 had thrusted money in his pocket could not be believed.  It is the
\nrepresentation of the first accused that he was in anti-sabotage check duty from
\n05.10.1999 to 07.10.1999, and that P.W.2 himself drove the vehicle into the
\npolice station and parked it.  He also attributes motive to P.W.2 and Ponniah
\nP.W.18 that since he registered Prohibition cases against them they are hostile
\nto him.  P.W.4 is the Head Constable worked in Kanyakumari Police station during
\nthe relevant period.  He says that the first accused on 04.10.1999 apprehended
\nP.W.2 took him to police station along with motorcycle which was in front of the
\nwomen police station till 08.10.1999.  He was also in the police station while
\nnabbing P.W.2 on 04.10.1999. He made the above entries in Ex.P12.\n<\/p>\n
\t15. P.W.5 was Grade I Police Constable in Kanyakumari police station. He
\nwas also in service there during the relevant point of time.  His evidence is in
\nline with that of P.W.4. He also went along with the first accused at the time
\nof intercepting the motorcycle driven by P.W.2. He says that the first accused
\ndrove the motorcycle and parked in front of the women police station on
\n04.10.1999.  P.W.7, who was also a Grade-I police constable in Kanyakumari
\npolice station who would depose about the apprehension of P.W.2 and Ponniah.  He
\nfurther states that the first accused took P.W.2 to the police station. He is
\ncategorical that on 04.10.1999 the first accused was in the police station
\nrelating to the prohibition case of P.W.2.\n<\/p>\n
\t16. P.W.8 has also supported the version of the prosecution.  He says that
\nat about 4.00 p.m, P.W.2 and both the accused were coming together to the
\nverandah and Prabhu was sent out of the police station. It is his evidence that
\nthe first accused brought the vehicle to the police station which was parked in
\nthe same place till 08.10.1999, when the Vigilance Officials seized it.\n<\/p>\n
\t17. Another Sub Inspector of Police P.W.9 also states about the
\nregistration of the case against P.W.2 and bringing the motorcycle into the
\npolice station by the first accused. He has produced Ex.P17 to Ex.P33 which are
\nall the records maintained in the police station, among which, Ex.P25 assumes
\nimportance in which as per P.W.9, on 06.10.1999 and 07.10.1999 the first accused
\nwas deputed for anti-sabotage duty. Hence, it is shown that only for the said
\ndates the first accused was on anti-sabotage check duty.  P.W.10 Grade-I Police
\nconstable in the Kanyakumari police station says that on the date of occurrence
\nP.W.2 came to the police station and he wanted to meet the first accused, that
\nhe informed him and afterwards the first accused along with second accused met
\nP.W.2.  After sometime, the second accused was speaking to P.W.2 in the front
\nverandah of women police station, at that time, P.W.3 was also present, that
\nthey went inside the police station and then P.W.2 and P.W.3 came out and that
\nat 3.35 p.m., the vigilance officers came inside and nowhere the accused from
\nhis evidence it is established that P.W.2 met both the accused and afterwards
\nP.W.2 and P.W.3 met both the accused and after sometime both the witnesses met
\nsecond accused in the front verandah of women police station. He corroborates
\nthe evidence of P.W.2 and P.W.3.\n<\/p>\n
\t18. P.W.11 was Writer in Kanyakumari police station, he says that while
\nP.W.9 Sub Inspector of Police asked him, he told that the first accused directed
\nP.W.2 to keep his motorcycle inside the police station.  P.W.12 is Inspector of
\nPolice was also deputed for anti-sabotage check duty along with the first
\naccused. He says that on 05.10.1999, he attended the said duty.  He produced
\nEx.P34, which is the note prepared by him. He does not say that on 08.10.1999
\nalso, the first accused was in the said duty.  P.W.13 was Grade-I, Police
\nConstable in Kanyakumari Police station. He would say that on 04.10.1999, the
\nmotorcycle was in the police station and the first accused entrusted the P.W.13
\nto take the P.W.2 to the Court.  It is his evidence that on 04.10.1999 itself
\nthe motorcycle was in the police station.  P.W.14 gave another shirt to the
\nsecond accused after he removed his shirt for phenolphthalein test.  He had seen
\nthe motorcycle parked in the police station even on 04.10.1999.  P.W.15 was Sub-
\nInspector of Police in Kanyakumari police station at the time of occurrence. He
\nsays that on 06.10.1999, the first accused was deputed for anti-sabotage duty.\n<\/p>\n
\t19. The above said oral accounts came from the police personnel on duty in
\nKanyakumari police station at the relevant period would reveal that on
\n04.10.1999 itself the motorcycle driven by P.W.2 was brought to the police
\nstation and was parked there till 08.10.1999.  There is nothing to smell a rat
\nin the evidence.  They would clearly indicate that the first accused brought the
\nmotorcycle along with P.W.2 to the police station on 04.10.1999.  Hence, his
\nrepresentations before the Court that from 05.10.1999 to 07.10.1999 he was
\nentirely on the anti-sabotage duty and he does not know about the parking of
\nmotorcycle earlier than 08.10.1999 and that P.W.2 only brought the motorcycle
\ninto the police station are not true.  There might have been ill-will on the
\npart of P.W.2 against the first accused, but overwhelming evidence do not show
\nthat only due to the hostility, P.W.2 lodged complaint against him. The
\nprocedure for the preparation of sample in the phenolphthalein test have been
\nduly explained.  They were despatched to the Forensic Sciences Laboratory. Their
\nanalysis and report have also been established in this case.\n<\/p>\n
\t20. In view of the above said discussion, this Court is of the considered
\nview that the charges framed against the accused by the trial Court have been
\nproved beyond reasonable doubt. The point is answered accordingly.\n<\/p>\n
\t21. There is no need to set aside the conviction recorded by the trial
\nCourt. However, in my opinion, the period of sentence imposed by the trial Court
\nis on the higher side.  Considering the facts and attending circumstances such
\nas the length of proceedings, imposing of one year rigorous imprisonment upon
\neach of the accused will be appropriate in the interest of justice, for every
\ncount under Section 7 and 13(2) r\/w. 13(1)(e) of Prevention of Corruption Act,
\n1988.  All the sentences shall run concurrently. There is no modification as to
\nthe quantum of fine as fixed and imposed by the trial Court.\n<\/p>\n
\t22. In the result, both the appeals are dismissed.  However, the period of
\nsentence of five years rigorous imprisonment imposed on each of the accused by
\nthe trial Court is modified to one year each for every count for the offence
\nunder Section 7 and Section 13(2) r\/w. 13(1)(e) of Prevention of Corruption Act,
\n1988. The sentences shall run concurrently. The period of incarceration already
\nundergone by them shall be set off.  There is no modification as regards the
\nquantum of fine fixed and imposed by the trial Court. The Trial Court is
\ndirected to issue warrant to commit both the accused  to prison to suffer the
\nremaining portion of sentence.\n<\/p>\n
srm<\/p>\n
To<\/p>\n
The Chief Judicial Magistrate-cum-Special Judge,
\nNagercoil.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chinnamoni vs State By on 30 July, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30\/07\/2010 Coram THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.649 of 2007 and Criminal Appeal (MD) No.650 of 2007 Chinnamoni Formerly Special Sub-Inspector of police, Kanyakumari Police Station, Kanyakumari. … Petitioner in C.A.No.649 of 2007 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-142392","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChinnamoni vs State By on 30 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chinnamoni-vs-state-by-on-30-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chinnamoni vs State By on 30 July, 2010 - 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