{"id":185763,"date":"2009-08-21T00:00:00","date_gmt":"2009-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-sathiyamoorthy-vs-the-state-of-tamil-nadu-on-21-august-2009"},"modified":"2014-11-25T02:38:59","modified_gmt":"2014-11-24T21:08:59","slug":"m-sathiyamoorthy-vs-the-state-of-tamil-nadu-on-21-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-sathiyamoorthy-vs-the-state-of-tamil-nadu-on-21-august-2009","title":{"rendered":"M.Sathiyamoorthy vs The State Of Tamil Nadu on 21 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Sathiyamoorthy vs The State Of Tamil Nadu on 21 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDate:  21.8.2009\n\nCoram\n\nThe Honble Mr.Justice M.JEYAPAUL\n\nCriminal Appeal Nos.452 to 458 and 498 of 2000\n\nM.Sathiyamoorthy, I.A.S.\t\tAppellant in C.A.No.452\/2000\n\nS.Muthukumaraswamy\t\t\tAppellant in C.A.No.453\/2000\n\nT.M.Selvaganapathy\t\t\tAppellant in C.A.No.454\/2000\n\nN.Haribhaskar\t\t\t\tAppellant in C.A.No.455\/2000\n\nN.Janarthanan\t\t\t\tAppellant in C.A.No.456\/2000\n\nH.M.Pandey\t\t\t\tAppellant in C.A.No.457\/2000\n\nS.Doraisamy\t\t\t\tAppellant in C.A.No.458\/2000\n\n\tvs. \n\nThe State of Tamil Nadu\nrep by the Deputy Superintendent \nPolice, CBCID, Headquarters,\nChennai 600 002. \t\t\tRespondent in C.A.Nos.452 to <\/pre>\n
\t\t\t\t\t\t 458 of 2000<\/p>\n
State rep by the
\nDeputy Superintendent of Police,
\nCrime Branch CID, Chennai-2.\n<\/p>\n
(CBCID HQ Cr.No.21\/1996)\t\tAppellant in C.A.Nos.498\/2000<\/p>\n
\tvs.\n<\/p>\n
1. Selvi.J.Jayalalitha\n<\/p>\n
2. Thiru.T.M.Selvaganapathy\n<\/p>\n
3. Thiru.H.M.Pandey, I.A.S.\n<\/p>\n
4. Thiru.M.Sathiyamoorthy, I.A.S.\n<\/p>\n
5. Thiru.N.Haribhaskar, I.A.S.<\/p>\n
\n6. Thiru.K.Janarthanan\n7. Thru.S.Duraisamy\n8. Thiru.S.Muthukumarasamy\tRespondents in C.A.Nos.498\/2000\t\n\nFor appellants in C.A.Nos.452,\n454 & 455 of 2000 \t\t\t: Mr.K.S.Dinakar\n\nFor appellants in C.A.Nos.453\nand 456 of 2000\t\t\t\t: Mr.S.Shanmugavelayutham, \n\t\t\t\t\t\t  Senior Counsel \n\nFor appellant in C.A.No.457\/2000\t: Mr.B.Sriramulu, Senior Counsel\n\t\t\t\t\t\t  for Mr.B.Rabu Manohar\n\nFor appellant in C.A.No.458\/2000\t: Mr.A.L.Somayaji, \n\t\t\t\t\t\t  Senior Counsel for \n\t\t\t\t\t\t  Mrs.Gita Asokan\n\nFor respondent in C.A.Nos.452\nto 458 of 2000\t\t\t\t: Mr.P.Kumaresan, \n\t\t\t\t\t\t  Public Prosecutor\n\nFor appellant in C.A.Nos.498\/2000\t: Mr.P.Kumaresan, \n\t\t\t\t\t\t  Public Prosecutor\n\nFor respondents in C.A.No.498\/2000: Mr.Navaneethakrishnan\t\n\n\nPrayer:- Criminal Appeal Nos.452 to 458 of 2000 against the judgment and sentence dated 30.5.2000  made in C.C.No.15 of 1997  on the file of the II Special Judge\/XII Additional Sessions Judge, Chennai.\n\n<\/pre>\n
Criminal Appeal No.498 of 2000 is filed against the judgment dated 30.5.2000 made in C.C.No.15 of 1997  on the file of the II Special Judge\/XII Additional Sessions Judge, Chennai and praying to set aside the order of acquittal acquitting A1, A2 and A4 to A9 under charge No.1 for the offence under section 120-B of the Indian Penal Code , section 13(2) read with 13(1)(c)(d)(ii)(iii) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code, sections 409, 409  read with section 109 of the Indian Penal Code , A1 under charge No.2 for the offence under section 13(2) read with section 13(1)(d)(ii) and (iii) of the Prevention of Corruption Act, 1988 and A4 and A5 under charge Nos.7, 10 and 13 for the offence under section 13(2) read with section 13(1)(d)(ii) and 13(1)(c) of the Prevention of Corruption Act, 1988 and section 409 of the Indian Penal Code .\n<\/p>\n
COMMON JUDGMENT
\n\tThe First accused Selvi J.Jayalalitha, the then Chief Minister  was acquitted of all the charges framed against her.  Aggrieved by the judgment of acquittal, the State has preferred Criminal Appeal No.498 of 2000 as against her. The second accused T.M.Selvaganapathy, the fourth accused H.M.Pandey, the fifth accused M.Sathiyamoorthy, the sixth accused N.Haribhaskar and the seventh accused K.Janardhanan were convicted for offence under section 13(2) read with section 13(1)(d)(ii) of the Prevention of Corruption Act (3 counts), (2 counts), (2 counts) (1 count) and (3 counts) respectively and were sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.10,000\/= in default to undergo a further period of three months simple imprisonment for each count.  The eighth accused Duraisamy and the ninth accused Muthukumarasamy  were convicted for offence under section 13(2) read with section 13(1)(d)(ii) of the Prevention of Corruption Act and section 109 of the Indian Penal Code  and were sentenced to undergo five years rigorous imprisonment and to pay  a fine of Rs.10,000\/= in default to undergo a further period of three months simple imprisonment each.  All the aforesaid accused viz., A2 and A4 to A9 have filed Criminal Appeal Nos.452 to 458 of 2000.\n<\/p>\n
\t2. The charges as against the late third accused V.R.Nedunchezhian were quashed.  The tenth accused N.Sasikala and the eleventh accused S.R.Baskaran were acquitted of the charges framed against them. But, the State chose not to prefer any criminal appeal as against the order of acquittal recorded as against those accused.\n<\/p>\n
\t3. As all these appeals have arisen out of the very same judgment in Special C.C.No.15 of 1997, all these cases were taken up for common disposal.\n<\/p>\n
\t4. It is the case of the prosecution that on 12.7.1995, the second accused T.M.Selvaganapathy, who was the Minister for Rural Development Department sent a Cabinet Note on the subject of providing colour television sets to the rural  habitations with fifty families and above for a discussion on the basis of the note put up by A5 Sathyamurthy, the Director of Rural Development.  The Cabinet Note itself would read that a total fund of 67.72 crores at the rate of Rs.15,000\/= per colour television set was required for executing the scheme proposed thereunder.  It is alleged that the price of Rs.15,000\/= per colour television set was fixed without any statistical analysis or enquiry.  The Cabinet Note was placed before the Council of Ministers presided by the first accused in the meeting that was held on 25.7.1995.  The Cabinet approved the proposal to supply colour television sets to all rural habitations with fifty families.  It has also been proposed to replace all black and white television sets available in the panchayat with the colour television sets. The source for mobilisation of such a fund also was discussed and a decision was taken.  On 15.8.1995, the first accused Selvi.J.Jayalalitha, during her Independence Day Speech, announced that 50,000 colour television sets would be provided to rural areas with the population of fifty families and above by relaxing the existing rules.  Thereafter, on 7.9.1995, A5 Sathyamurthy addressed a letter to the Director of Industries and Commerce requesting him to furnish the updated list of television manufacturers in the State of Tamil Nadu as well as from other States.  On 4.10.1995, A4 H.M.Pandey joined as Secretary, Rural Development Department.  Letters were despatched to 197 colour television manufacturers by certificate of posting on 6.10.1995 requesting them to fill up the forms sent alongwith the letter and despatch the same on or before 20.10.1995.  But, only six companies viz., BPL, Videocon, Uptron, Solidaire, Keltron and ECIL alone responded and submitted filled in forms personally.  They also exhibited their sample colour television sets.  All the sample sets were evaluated on 20.10.1995 by the Evaluation Sub Committee.  On 21.10.1995, 26,10,1995, 27.10,1995, 29.10.1995 and 31.10.1995, communications were sent to Television Approval Committee and the aforesaid six colour television manufacturing companies.\n<\/p>\n
\t5. The Television Approval Committee consisted of A4 H.M.Pandey, Secretary, Rural Development Department as Chairman, A5 M.Sathyamurthy, Director Rural Development as Member Secretary and PW4 Mr.Machendranathan, Commissioner of Town Panchayat as a Member. During the course of negotiations, the aforesaid six companies quoted the price of a colour television set ranging from Rs.14,800\/= to Rs.16,000\/=.  Mr.Machendranathan, PW4 informed the Television Approval Committee that on an enquiry, he came to know that the price of a colour television set was about Rs.12,000\/=.  The representative of ECIL Television agreed to supply the colour television at the rate of Rs.14,500\/= per set.  The said price was agreed by all the other five companies. Mr.Machendranathan, PW4 reiterated that the price of a colour television set was only Rs.12,000\/=.  At this juncture, PW27, Mr.Jayaraj, a representative of Videocon Television, in fact, agreed to sell the colour Televisions at Rs.12,500\/= provided the entire order was placed with them.  Though this aspect of the matter was brought to the notice of the Television Approval Committee, the Committee refused to accept the same. The representative of Uptron and Videocon Television Companies have deposed before the court that they were introduced to A4 H.M.Pandey by A8 Duraisamy at the State Guest House.  A4 promised PW12 Ganesh Kanna, a  representative of Uptron India Limited that he would render help to them to obtain the order.  He also informed PW12 to keep in touch with A8 Duraisamy.  The latter demanded a sum of Rs.1750\/= for A4 H.M.Pandey, A5 M.Sathyamurthy and for himself and sum of Rs.1000\/= for K.Janardhanan, A7, who was the Personal Assistant to the second accused T.M.Selvaganapathy.  PW27 Jayaraj, the representative of Videocon also met the 4th accused H.M.Pandey and the 5th accused M.Sathyamurthy on 21.10.1995.  The fourth accused H.M.Pandey enquired from PW27 as to how much money the Videocon Company would offer per set.  PW27 informed him that it all depended upon the quantum of orders placed with them for supply of television sets.  The 4th accused reiterated saying that the quantum of the order would depend only on the amount offered by them to him per set.  A4 also casually referred that there was a chance for fixing the price at the rate of Rs.15,000\/= per set and made a demand of Rs.400\/= per Television set for him.  This was agreed by the representative of the Videocon Company. A2 to A9 engaged themselves in demanding money from the Television Companies and negotiated with them the bribe amount.  The Minutes concerning the Television Approval Committee meetings held on 21.10.1995, 26.10.1995, 27.10.1995, 29.10.1995 and 31.10.1995 were drawn as common Minutes.  The normal procedure of preparing separate Minutes and intimating them to the individual Members of the Television Approval committee was not adhered to. The Minutes of the Television Approval Committee was sent on 10.11.1995 as evidenced by Ex.P20.\n<\/p>\n
\t6. On 13.11.1995, the Rural Development Department sent a circular note to the Finance Department under Ex.P28.  On 16.11.1995, the Finance Department raised the following objections under Ex.P12.\n<\/p>\n
1) Open Tenders should have been called for according to the order issued in G.O.Ms.No.708 Finance (BPE) dated 22.8.1994.\n<\/p>\n
2) Bulk order should earn discount only and not result in increase in price.\n<\/p>\n
3) The price fixed should be compared with the ruling market price to be ascertained from the Commissioner of Statistics.\n<\/p>\n
4) The proposal to pay 100% advance of the television cost by the Department of Rural Development is quite against the orders issued in G.O.Ms.No.708 Finance (BPE) dated 22.8.1994.\n<\/p>\n
\t7. On 23.11.1995, the Department of Rural Development circulated a note, Ex.P14 by way of reply to the objections raised by the Department of Finance.  The Finance Department reiterated its earlier stand.  As the purchase of the Television sets involves a sum of Rs.75 crores, a Purchase  Committee should have been constituted in consultation with the Finance Department and the procedure adumbrated for Open Tender system alone should have been followed, it has been additionally raised by the Finance Department.\n<\/p>\n
\t8. The first accused called for a meeting at the camp office on 30.11.1995 in which A2, A4, A5, A6, PW5 and PW7 did participate.  A2 explained to A1 about the views of both the Rural Development Department and the Finance Department.\n<\/p>\n
\t9. PW5 was thereafter summoned inside the meeting room.  PW5 has deposed that A1 heard the view of both the Rural Development Department and the Finance Department with respect to the price and ultimately accepted the proposal mooted by the Rural Development Department.   A1 directed PW5 to prepare the note as per the decision taken by her.  Thereafter, A4 instructed PW10, the Deputy Secretary attached to Rural Development Department to prepare a circulation note, Ex.P17 based on the decision taken by the first accused.  A circulation note was prepared and signed by A4 on 5.12.1995.\n<\/p>\n
\t10. PW6 took charge as Secretary, Rural Development Department on 6.12.1995.  PW4 informed him that the colour television sets have been proposed to be purchased by paying higher price.  PW5 perused the entire file on 7.12.1995 and having found that the decision taken on 30.11.1995 by the first accused was not properly recorded, communicated a routine note, Ex.P18 and sent it to the Rural Development Department.  On 9.12.1995, PW6 prepared the  final note, Ex.P19 which was signed by PW5 on 9.12.1995.  A2 and A6 approved the same on 10.12.1995 and A1 and the deceased A3  approved the same on 11.12.1995.\n<\/p>\n
\t11. The order in G.O.Ms.No.209 marked as Ex.P10 was issued on 13.12.1995.  Thereafter, the Agents of various television companies paid commission to A2, A4, A5, A6, A7 and 9 having received the money from Department of Rural Development.  Ganesh Kanna, PW12 and Sivasankaran, PW14 have spoken about the bribe paid for the orders placed for supply of colour television sets by Uptron.  V.K.K.Dasan, PW22 speaks about the bribe paid for the supply of colour television sets by Keltron.   Jayaraj, PW27 deposes about the bribe paid for the orders placed for supply of television sets by Videocon.  Balaji, PW37 and Ravindran, PW58 depose about the bribe paid for the orders placed for the supply of colour television sets by BPL and Vaikuntam, PW63 speaks about  the bribe paid for the orders placed for the supply of colour television sets by Solidaire.  Padmanabhan, PW76 also speaks about the payment of bribe to the accused.\n<\/p>\n
\t12. The investigation officer, having examined the witnesses and seized the relevant documents, laid the final report as against all the accused.\n<\/p>\n
\t13. On the side of the prosecution, P.Ws.1 to 80 were examined and Exs.P1 to P389 and M.Os. 1 and 2 were marked.  On the side of the accused, D.Ws.1 and 2 were examined and Exs.D1 to D33 were marked.\n<\/p>\n
\t14. The Trial Court, having adverted to the voluminous evidence let in on the side of the prosecution, chose to acquit the first accused, 10th accused and 11th accused and convict the second accused and fourth accused to ninth accused.\n<\/p>\n
\t15. The learned Government Advocate (Criminal Side) would vehemently submit that the first accused chose to fix the price of the colour television without making any enquiry or receiving any statistical analysis about the existing market price.  She announced during the Independence Day Speech on 15.8.1995 that 50,000\/= colour television sets would be purchased at a cost of Rs.75 crores before March 1996 implying thereby the price of each television set would cost a sum of Rs.15,000\/=.  She had full knowledge of the valid objection raised by the Finance Department.  The Open Tender System has been given a go-by by the first accused.  The clearance of the relevant file without giving any weightage to the objections raised by the Finance Department would go to show that she had acted in connivance with the other accused in order to obtain pecuniary advantage for herself and others.  Even if the television sets were to be supplied before the General Election, fresh tenders could have been called for and the entire process would have been over within a period of thirty days.  The public money has been completely misused by the accused.  The payment of money through the prosecution witnesses, 12, 14, 22, 27, 37, 58, 63 and 76 to A2 to A9 stood established.  As per section 10 of the Indian Evidence Act, the aforesaid acts of A2 to A9 in obtaining the pecuniary advantage consequent upon the approval made by the first accused is itself a relevant fact against the first accused to show that she was one of the conspirators.  It is his further submission that it is not necessary that all the conspirators must know each and every details of the conspiracy so long as they are co-conspirators of the main object of conspiracy.  A1 categorically admitted during the course of answering the questionnaire under section 313 of the Code of Criminal Procedure that she did know about the objections of the Finance Department.  It is his further submission that the plea of good faith set up by the first accused would not be available for her as she had acted without due care and attention.  Therefore, he would submit that A1, A2 and A4 to A9 are punishable for the offence of conspiracy hatched by them to squander the public money.\n<\/p>\n
\t16. Learned Senior Counsel appearing for the first accused, second accused  and the fourth accused to 9th accused would contend that it is the admitted case of the prosecution that the decision for going in for purchasing the television sets for providing to all the villages with fifty and more families in the State of Tamilnadu free of cost was taken by the full Cabinet.  The policy decision taken by the Cabinet is virtually under challenge in the criminal prosecution.  There is no answer from the prosecuting agency as to why only a few members in the Cabinet were singled out and prosecuted.  The declaration in the Independence Day Speech that colour television sets  would be supplied to the villages at the cost of Rs.75 crores would not imply that there had been a conspiracy to swallow the public money.  There was a Television Approval Committee which was formed wayback in the year 1989.  The said Committee consists of PW4, who was the Commissioner of Town Panchayat, PW8, the Circle Range Officer, A4, Secretary of the Rural Development Department and A5, Director of Rural Development Department.  Only after all the television manufacturers numbering 197 as per the list collected from the Department of Industries and Commerce were invited to participate in the tender process, the deal was concluded.  As there was a tussle between the Rural Development and the Finance Department relating to certain issues, the first accused held a meeting with A2, A6, PW5 and PW7 and took a decision. The quantities were  fixed based on the capacity of the supplier.  There was no meeting of minds established by the prosecution to prove the charge of conspiracy allegedly hatched by the accused.\n<\/p>\n
\t17. Criminal thoughts generated in the mind of a person are not crimes.  The thoughts may take a concrete shape of an agreement to do an illegal act.  Such an agreement is designated as criminal conspiracy.  A bare agreement to do some illegal act would not amount to  an offence of criminal conspiracy unless some act is done by one or more parties to the agreement in  pursuance thereof.  The very essence of the conspiracy is the fact of combination by agreement.  The agreement need not always be express.  It may also be implied.  It may also be express in part and implied in part.  It is not enough that two or more persons pursued the same unlawful object the same time or in the same place.  It is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.  It is not, however, necessary that each conspirator should have been in communication with every other.\n<\/p>\n
\t18. Therefore, the court will have to decide whether there was an integration of thought process which provided a shape of an agreement amongst accused 1, 2 and 4 to 9. It is the admitted case of the prosecution that the Full Cabinet chalked out a policy decision to provide colour television sets to all the villages with fifty and more families in the State of Tamil Nadu free of cost.  Mr.Peter, PW10, who served as a Deputy Secretary, Rural Development wrote a D.O. Letter, Ex.P72 on 13.8.1995 to the fifth accused Sathyamurthy, the Director of Rural Development of the decision taken by the Cabinet and the duty cast upon him to initiate further action in that matter.  The proposal states that the said decision was taken with a view to strengthen the communication and information set up in the rural areas.\n<\/p>\n
\t19. On 14.8.1995, PW10 wrote a letter, Ex.P73 to the Finance Department informing them of the decision taken by the Cabinet that all habitations with fifty families and above would be supplied with colour television sets and all the black and white television sets which were available would be  replaced.\n<\/p>\n
\t20. The first accused, being the Chief Minister, declared in the Independence Day Speech on 15.8.1995 that colour television sets would be provided to village people free of cost  by incurring a sum of Rs.75 crores.  The Television Approval Committee which was formed in the year 1989 was directed to convene a meeting for the approval of television sets and for the purchase of the same.  Admittedly, the price, the number of television sets and the suppliers had not been identified as on the date of such pronouncement in the Independence Day Speech by the Chief Minister.\n<\/p>\n
\t21. The Television Approval Committee consisted of PW4, who was the Commissioner of Town Panchayat, PW8, the Circle Range Officer, A4, the Secretary of Rural Development Department and A5, the Director of Rural Development. The fourth accused was the Chairman of the said Committee.  The Director, Rural Development requested for sanction for purchase of television sets vide Ex.P38 dated 11.9.1995.  The Department of Industries and Commerce on request, provided the list of 174 television manufacturers in the entire country to the Director of Rural Development.  The Director of Rural Development communicated under Ex.P156 to the television manufacturers numbering 197 and invited them to participate in the Tender.  It is on record that the bids from Uptron and Videocon were received on 20.10.1995.  The Television Approval Committee Meetings were held on 21st, 26th, 27th, 29th and 31st October 1995. The Department of Rural Development put up a note under Ex.P28 seeking orders for the release of funds for purchase of TV sets.  Thereupon, the Finance Department raised objections with regard to the proposal on 16.11.1995 under Ex.P12.  Those objections were answered by the Department of Rural Development on 23.11.1995 under Ex.P14.\n<\/p>\n
\t22. The Chief Minister held a meeting with A2, A6, PW5 and PW7 in order to expedite the process of supply of television sets to the village people. Two decisions were taken in the said meeting and they were found a place in the note, Ex.P13 prepared by the Secretary, Finance Department. The bidders submitted a letter of commitment indicating  their weekly capacity by 4th  and 5th December 1995. The quantities were fixed on the basis of the capacity of supplier.  The Government passed G.O.Ms.No.209 under Ex.P10 on 13.12.1995 for supply of the television sets.\n<\/p>\n
\t23. There is virtually no evidence let in on the side of the prosecution to establish that what was being quoted by the bidders was higher than the market price. None of the witnesses has deposed that the Television Approval Committee was influenced or exerted pressure by the accused to take a wrong decision.  The prosecution has also not established that the television sets with certain special specifications sold to the Government were available at a lower price in the open market. The Agents of the Television Manufacturers have not stated that the television sets have been sold to the Government at a rate higher than the market price.\n<\/p>\n
\t24. The evidence of PW4 Machendranathan is found to be an improvised version compared to his statement, given by him to the police under section 161 of the Code of Criminal Procedure  and also his statement given under section 164 of the Code of Criminal Procedure  before the learned Judicial Magistrate.  PW4 never made a mention in his statements that before he attended the second meeting of the Television Approval Committee, he independently verified the price of a television set with some of the dealers in Chennai.  Had he actually verified the price of a television set from such sources, he would not have failed to mention it in the statement given to the police under section 161 of the Code of Criminal Procedure and the statement given before the learned Judicial Magistrate under section 164 of the Code of Criminal Procedure.  The above facts and circumstances would clinchingly show that he has modulated his version before the court during the course of trial.\n<\/p>\n
\t25. The investigating officer, on his part, has also failed to secure the price list in currency during the relevant period from some of the Television Manufacturing Industries.  No evidence was forthcoming from the prosecuting agency that the price of a Television Set of the model ordered and purchased by the Government was lower than Rs.14,500\/=.  PW5 would  modestly admit that he did not know what sort of special features were provided in the television sets purchased by the Government.  He is a novice  as far as technical know-how of manufacture of television sets.  It is his admission that he did not know the actual market price.  Varadaraju, PW7 would  depose that no such objection was raised by PW5 at the meeting that was held on 30.11.1995 at the camp office of the Chief Minister.\n<\/p>\n
\t26. Let us now take up the allegation of the prosecution that instead of adopting the limited tender procedure, an open tender procedure was adopted.  There is no dispute to the fact that the limited tender procedure had been adopted on earlier occasions.  The assembly election was fast approaching.  On account of the same, it appears the Chief Minister was bent upon to implement the scheme.  Therefore, she convened a meeting at her camp office on 30.11.1995. PW5 did participate in the said meeting.  She had given an opportunity of hearing the views of the Department of Rural Development and the Department of Finance.  There was an open discussion in the said meeting organised by the Chief Minister. The decision emerged in the said meeting was not shrouded in secrecy. It is on evidence that 197 manufacturers of television sets from all over the country had been invited. Middlemen like Wholesalers and retailers were kept outside the deal. The Chief Minister had reasoned that only the manufacturers could supply at the lowest rate.  The Wholesalers and Retailers, who purchase only from the manufacturers and the Retailers, who purchase only from the Wholesalers cannot supply at the lowest rate.  Further, it was not the case that never had the Government adopted limited tender process.  Further, the above facts and circumstances had warranted the Government to adopt the limited tender method.  In fact, the invitation sent to all the 197 manufacturers of television sets in India would indicate that  such a limited tender had the virtual trappings of open tender.\n<\/p>\n
\t27. PW5 would candidly admit that as per the provision found in the Financial Code, the limited tender system could be adopted in case of urgency.  In fact Mr.Machendranathan, PW4 would agree to such a view expressed by PW5.  Mr.Ganapathy, PW8 would depose that there was no snag in the procedure adopted as it was strictly in compliance with the Government Order, Ex.P9.  It is not out of place to mention that in the matter of purchase of 2000 television sets by the Adi Dravidar Welfare Department,  the open tender system was adopted but only four companies purchased the tender forms, Ex.P7 and actually two companies put in their tender out of which one Konark Television was selected.  Objection was not raised by the Finance Department that the Government should not go in for a television set with sophisticated features.  Firstly, it is found that the supply of television sets with special sophisticated features was a policy decision taken by the Cabinet.  PW5 had nothing to do with such a policy decision.  There is nothing on record to show that he, in fact, raised such an objection at the meeting that was held on 30.11.1995.\n<\/p>\n
\t28. Even assuming for the sake of argument that there had been violations of the provisions of the Financial Code or Violations of Circulars and other instructions and also commission of administrative irregularities, such violations and irregularities would not constitute an offence, if they are not authored with dishonest intention by the officials.\n<\/p>\n
\t29. The fact remains that no television set purchased by the Company from the five suppliers and supplied to the villages was seized during the police investigation.  No technical evaluation of any of the television sets was also done during the course of investigation.  Nor is there any evidence to show that any complaints was received about the malfunctioning of those sets from any of the villages.\n<\/p>\n
\t30. The prosecution would allege that the first and the second accused have acted against the advice of the Finance Secretary and also against the public interest by approving the proposal to buy colour television sets and thereby they caused loss to the Government.  The prosecution has miserably failed to substantiate such an allegation. The objections raised by the Finance Department were suitably replied by the Department of Rural Development.  In the meeting that was organized by the Chief Minister, all the points raised by the Finance Secretary were discussed threadbare. None of the points raised by the Financial Secretary was concealed to keep it outside the interaction that took place openly in the meeting organised by the Chief Minister.  The decisions taken at the meeting were thereafter carried out in their letter and spirit.\n<\/p>\n
\t31. There is no shred of evidence to establish that there was any meeting of mind culminating in an agreement amongst the accused to show that they acted in unison against the public interest and committed breach of trust of the money belonged to the Government by indulging in criminal conspiracy.\n<\/p>\n
\t32. Neither direct nor circumstantial evidence was produced to show that A1 and A2 had a meeting of minds with any of the other co-accused individually or collectively in order to attract the provision under section 10 of the Evidence Act. The prosecution has to first satisfy that there is reasonable ground to believe that A1 and A2 had conspired with any or all the accused to commit an offence.  Without establishing this fundamental criterion, the prosecution cannot invoke the provision of section 10 of the Evidence Act.  Of course, it is alleged by the prosecution that A7 obtained pecuniary advantage for A2.  But, the prosecution has not established by producing evidence that there was any meeting of minds between A2 and A7.  Such a story reeled out by the prosecution is found to be very vague and unclear.  Very strangely, the prosecution has come out with a case that A7 collected money for A2 only from three companies and collected money for himself from two other companies.  Such a story is found to be completely unbelievable and is liable to be rejected.\n<\/p>\n
\t33. Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and times without a reasonable link. It is a well settled proposition of law that suspicion, however strong, cannot take the place of legal proof. The mere circumstances that A1, being the Chief Minister, convened a special meeting to chalk out the differences between the Finance Department and the Rural Development Department, A2, being the Minister for Rural Development, strongly supported the decision of the Cabinet to supply television sets to rural areas and A7, being the Personal Assistant to A2, associated with him and A4 to A6, being the Heads of the relevant Department, executed the decision taken by Cabinet, would not lead to the inference that they had hatched a conspiracy to receive bribe for placing orders for supply of television sets.  The Trial Court has rightly returned a verdict that the conspiracy theory putforth by the prosecution stood not established.  No interference is called for with the above merited decision of the Trial Court.\n<\/p>\n
\t34. Let us now take up the charge as against the second accused that he misused his position as public servant and received bribe from BPL colour television company, Videocon Company and Uptron Company. The prosecution placed reliance upon the testimony of PW32 P.V.Nair, PW35 Krishnadevaraya, PW37 Balaji and PW58 Ravindran in order to substantiate the allegation that the second accused received a sum of Rs.4,72,00,000\/= as illegal monetary gain from BPL Company.\n<\/p>\n
\t35. PW58 would state that PW32, PW35 and his brother Rajavel happened  to meet the second accused during the month of October 1995 and made an appeal to the second accused to place orders for supply of more number of television sets as BPL was a big television manufacturing company.  It is his further evidence that the second accused replied that he was not the deciding authority.  The time for delivery of television sets was very short as the Local Body Election was scheduled shortly. It is pertinent to note that PW58 Ravindran never deposed either in the chief examination or in the cross examination that A2 did make a demand for money from him for giving orders for supply of colour television sets.\n<\/p>\n
\t36. The court could notice material contradiction in the deposition of those relevant witnesses examined with respect to the money withdrawn and allegedly given to A7, K.Janardhanan, who was the Personal Assistant to the Minister A2 T.M.Selvaganapathy.  It is the version of PW58 that the second accused gave a call to him pursuant to which PW58, PW32 and PW35, one Varghese and PW58’s brother Rajavel met the 7th accused.  It is pertinent to note that the said Varghese and Rajavel were not examined by the prosecution.  PW58 would depose that the 7th accused informed him that AIADMK party had proposed to convene a conference at Trichy wherein free mass marriage for 5000 pairs was contemplated and that therefore, the AIADMK party was in dire need of adequate funds.  Explaining thus the position, the 7th accused informed PW58 to pay a sum of Rs.2500\/= per television set and the officials of the BPL accepted such a demand.  PW58 would categorically depose before the court that he did not make a statement that A2 demanded money.  He would state that PW32 P.V.Nair, PW35 Krishnadevaraya and other officials of BPL were very much present when the amounts were withdrawn  and handed over.  It is his affirmative version that when the money was handed over to A7 on various occasions, the officials of BPL Company accompanied him.  BPL Company officials put the money in television paper box and handed over to the 7th accused.  According to PW58, PW32 P.V.Nair and the said Varghese were present when the money was handed over to the 7th accused.  He would further state that the money was handed over to A7 in front of Andhra Mahila Sabha Bus Stop and at the car park of the Woodlands Drive In Hotel.  Such a story of PW58 was not corroborated either by PW32 or by PW35 .\n<\/p>\n
\t37. PW32 P.V.Nair would depose that BPL officials met A2 and requested for placing orders for larger supply of television sets. Never had he spoken to the disbursement of amount as stated by PW58 to A7.  PW32 distanced himself from the aforesaid incriminating circumstances spoken to by PW58.  PW32 was very categoric that BPL Company never authorised anybody to pay any illegal gratification.  PW35, on his part, would depose that when the officials met the second accused, the officials only asked for placing orders for  increased supply of television sets.  PW35 Krishnadevaraja also does not speak about the disbursement of money in his presence, despite the fact that PW58 chose to state before the court that PW35 also was present most of the time when the disbursement was made.  PW37 Balaji would come out with a different version that the amount was paid to A7 in three or four instalments.  Such a stand of PW37 is found to be quite contrary to the evidence of PW58 who would state that payments were made on nine occasions.\n<\/p>\n
\t38. Very strangely, PW37 Balaji does not speak about the presence of PW2 and PW35 when the amount was allegedly disbursed by the 7th accused.  Such a stand of PW37 would distance him from the affirmative version of PW35 that PW32, PW35 and PW37 were present at the time when the amount was paid.  It is to be noted at this juncture that PW38 never stated that PW37 Balaji was present when money was paid.  Though PW37 would assert that he was present when the money was handed over to A7 on certain occasions, during the course of cross-examination by A8, PW58 would honestly admit that he had nothing to do with the money disbursed to the political leaders and Government officials and all those matters were dealt with only by the BPL officials.  Thus, the testimony of PW58 is materially contradicted by the evidence of PW32 P.V.Nair, PW35 Krishnadevaraya and PW37 Balaji.  The aforesaid contradictions strike at the root of the version of PW58 as to how the money was withdrawn and allegedly handed over to the 7th accused.  PW58 would depose before the court that the money was demanded by the 7th accused when the officials met him in a Hotel.  Such a demand made by the 7th accused did not find a place either in the statement of PW58 recorded by the investigating officer under section 161 or in the statement Ex.P333 recorded by the learned Judicial Magistrate under section 164 of the Code of Criminal Procedure .\n<\/p>\n
\t39. PW58 speaks to the presence of the officials of BPL on all occasions when the money was handed over to the 7th accused.  On two occasions, the currencies kept in boxes were handed over to the 7th accused in a bus stop near the Andhra Mahila Sabha Building.  On the rest of the occasions, it was in the campus of the Woodlands Drive In Restaurant, he would depose before the court. The investigating officer, PW80 would state before the court that PW58 did not reveal before him during the course of investigation that A7 was met by the BPL officials either at the bus stop near Andhra Mahila Sabha Building or at the campus of the Woodlands Drive In Restaurant.  Further, such a version also did not find a place in the statement, Ex.P333 recorded by the learned Judicial Magistrate under section 161 of the Code of Criminal Procedure.  The above facts and circumstances would establish that PW58 has come out with a  modulation before the court at his will and pleasure.\n<\/p>\n
\t40. It is the version of PW58 that he acted as an agent of BPL  with the help of PW35 Krishna Devaraya.  Ex.P165 is the letter shot off by him to BPL on 16.8.1995 seeking to appoint him as a liaison agent to secure orders from the Government of Tamilnadu for distribution of colour television sets.  Under Ex.P166, he was appointed as an agent of BPL on 8.9.1995.  PW58 was entitled to commission of 24% i.e., Rs.3600\/= if the price fixed by the Government was at Rs.15,000\/=.  His commission would be proportionately reduced if the price fixed by the Government was below Rs.15,000\/= per set.  His appointment as agent of BPL preceded the meeting of the Television Approval Committee that was held for the first time on 21.10.1995.  The tender documents were presented to the Television Approval committee only in the month of October.  The agreement entered into by PW58 with BPL categorically stipulated the price of the television set and the commission to be paid long prior to the presentation of the tender documents. In the above facts and circumstances, it is quite unbelievable that PW58 met A2 and A7 for the purpose of fixing the amount to be given to them.  During the course of chief examination, he would state that he was to get a commission of Rs.200\/= per television set from BPL Company.  PW58 improved his version by stating that letters dated 16.8.1995 and 8.9.1995 were ante-dated so as to increase the amount of commission.  Such a stand of PW58 was contradicted by PW34 Bhatia,  the Sales Director of BPL, who would state that he had not given any letter by putting ante-date.  The above circumstances would show that PW58 had ante-dated the letters only to make it believe that he had higher commission margin meant for payment to higher officials.\n<\/p>\n
\t41. The Trial Court has completely ignored the fact that PW32, PW35, PW37 and PW58 are accomplices, whose evidence will have to be very cautiously approached with.  Unless independent evidence is there to corroborate the evidence of the accomplices, it is totally unsafe to record conviction based on the sole testimony of the accomplices.  Further, the aforesaid material contradictions found in the evidence of PW32, PW35, PW37 and PW58 cast a cloud on the version of the prosecution that these witnesses paid money to A2 through A7.\n<\/p>\n
\t42. The close scrutiny of the depositions of PW38 to PW49 cast a serious doubt about the withdrawal of the amount from the bank for payment.  Many of those witnesses have deposed that they saw the bills produced before the court for the first time. PW44, PW46, PW47 and PW51 would categorically depose that their signatures do not tally.  Some of the witnesses would state that their signatures have been forged. Some of those witnesses have stated that it was only PW37 Balaji, who filled up blank papers.\n<\/p>\n
\t43. The prosecution case is that money was drawn from the bank accounts of the agents appointed by the Company and was given to A7.  Though the material witnesses have spoken to the fact that money was withdrawn from the bank, the payment alleged to have been made by PW37, PW58 and other  accomplices including BPL officials was not established.  PW58 would depose that he did not want to withdraw the entire amount in his name as it would attract huge income tax.  Such a version of PW58 cast a cloud on the version of the prosecution that the amount was drawn and paid to A7. Therefore, the entire story of the prosecution that the amount was withdrawn and paid to A7 is found to be totally unbelievable.  A combined reading of the depositions of PW32, PW35, PW37 and PW58 would unerringly indicate that their testimony is not only contradictory but also striking at the root of the version of one another.  We can safely draw an inference that the conduct of those witnesses including the BPL officials and excluding PW34 that their conduct was not aboveboard.  PW58, in fact, did not fall in line with the case of the prosecution.  He was treated as hostile.  In fact, PW58, on whom the prosecution heavily relies upon, has spoken to before the court quite contradictory to his statement under section 164 of the Code of Criminal Procedure .  It is to be noted that PW32 and PW34 have not deposed anything about the payment made to A2 or to A7.  PW35 has come out with a hearsay evidence that money was given to A7 inasmuch as he was not present when the alleged  meeting took place between A7 and PW58.\n<\/p>\n
\t44. Let us now take up the charge against A2 that he obtained a sum of Rs.1,41,72,000\/= as bribe from Videocon Company.  The prosecution heavily banks on the evidence of PW27 Jayaraj.  The court will have to closely scrutinize his evidence to test his veracity so as to take a decision whether his testimony can be safely relied upon.\n<\/p>\n
\t45. In  SHARNAPPA MUTYAPPA HALKE v. STATE OF MAHARASHTRA<\/a> ((1964) 4 SCR 589), the Supreme Court has held as follows:-\n<\/p>\n
“Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence.  In other words, before one decides to accept the evidence brought in under Section 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so.  How can that satisfaction be reached?\t In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true.”\n<\/p>\n
\t46. In his statement under section 164 of the Code of Criminal Procedure  marked as Ex.D13 to D16, PW27 has stated that the entire amount was given  to A2 in person.  But, in the cross-examination, he candidly deposes that the statement that he gave money to A2 in person is totally wrong. In the witness box, he would depose that on no occasion, money was given directly to A2 and that every payment was made only to A7.  It is to be noted that such a version of PW27 is a totally new one which is quite contrary to what has been stated in his statement under section 164 of the Code of Criminal Procedure  at the earliest point of time.\n<\/p>\n
\t47. PW27 would depose that on 21.10.1995, he learnt that there was a Television Purchase Committee.   He and Rajaguru attended the said meeting.  He would further depose that the Television Purchase Committee Meeting was organised at Secretariat on 26.10.1995.  Rajaguru and himself attended that meeting.  He would further depose that they met A4 on  the same night in the Government Guest House and after a few days,  the Television Purchase Committee Meeting was convened in the office of A5.  PW4 Machendranathan asked him to give it in writing  on 26.10.1995 that they were prepared to supply television sets for Rs.12,500\/= per set if they got the entire order. It is his further version that on the very same day, they tried to meet A4 but, failed in their attempt.   On the next day, Rajaguru and himself met Raja and Ravi and they took them to Duraisamy A8.  He would further depose that A8 informed them that an order for supply of 1000 colour television sets for them was ready.  Immediately, they rushed to Government Estate, Chepauk, but, A4 was not available there.  Therefore, they sent fax message that if they failed to get orders for supply of television sets, they would approach the court and get remedy.  After worshipping God in Vadapalani Temple, they sent fax message to Finance Secretary and Chief Secretary.  He would further depose that on the next day, they met A4, who informed them that A2 was the authority to take a final decision and asked them to meet the Minister.  The 7th accused Janardhanan arranged to meet the second accused at 11.00 pm. The Minister was in an angry mood when they met him.  He, in fact, repeated the fax message sent by them.\n<\/p>\n
\t48. From the above testimony of PW27, it is quite clear that on 28.10.1995, PW27 met A2, but, Ex.P161 which is the fax message sent to A2 would show that it was sent only on 30.10.1995.  PW27 had come out with a big lie that the Minister got angry with PW27 on 28.10.1995 itself when he happened to meet him even before the threatening fax message was sent on 30.10.1995. The above facts and circumstances would clinchingly indicate that the alleged meeting of PW27 Rajaguru with A2 wherein there was an interaction about the illegal gratification is totally false.\n<\/p>\n
\t49. Yet another circumstance detailed below would completely falsify the case projected by PW27.  Ex.P10 complaint before the National Consumer Redressal Commission was lodged by one M.Dhakshinamurthy, the sole proprietor of Vasantham Electronics and Rewinders and the same was taken on file in O.P.No.293 of 1997 by the Commission.  It has been alleged therein that Vasantham Electronics and Rewinders were the authorised agents for the purchase of Videocon Colour Television Sets by the State of Tamil Nadu.  It is further alleged in the complaint that PWP27 Jayaraj was the Branch Manager of  Canara Bank, Nadupalayam Branch, Erode District and Rajaguru, who is the brother of PW27, was  also a Branch Manager of Indian Overseas Bank, Pudhukottai.  They approached the complainant M.Dhakshinamurthy and offered to help him in the venture.  It is further alleged that after the supply of Television sets, when the complainant approached the Government for getting the legitimate dues, they came to understand that PW27 Jayaraj and his brother Rajaguru had already withdrawn many payments of cheque in the name of Jayaraj and Rajaguru, Vasantham Electronics and Rewinders.\n<\/p>\n
\t50. It is very important to note the stand taken by PW27 in the counter, Ex.D11 filed by him before the National Consumers Disputes Redressal Commission.  It has been alleged therein that PW27 and his brother Rajaguru were the authorised agents for Videocon and they had just borrowed the name of Vasantham Electronics and Rewinders.  It has been categorically alleged therein that they had paid Rs.5,00,000\/= to Mr.Sambantham, who represented Dhakshinamurthy under the cheque which is found in Ex.D12 series.  The photocopy of the cheque was also annexed to the counter filed by PW27 before the National Consumer Disputes Redressal Commission.  The said cheque bearing serial number 021260 dated 29.1.1996 in the name of Sambantham was drawn on State Bank of India, North Thyagaraya Nagar.\n<\/p>\n
\t51. PW27 has deposed before the court that the cheque was not actually payable to Dhakshinamurthy though it was mentioned that the cheque for a sum of Rs.5,00,000\/= was payable to Dhakshinamurthy.  He denies the suggestion that the cheque No.021260 was payable only to Sambantham and not to the Minister. Before the Consumer Forum, he states that the said cheque was issued to pay Dhakshinamurthy whereas before the Trial Court, during the course of cross-examination, he deposes that the proceeds of the said cheque were given to the Minister.  The above contradiction is sufficient to disregard the evidence of PW27.\n<\/p>\n
\t52. PW27 would categorically state that the cheques were issued not only in the name of PW27 but also in the name of Rajaguru.  When the cheques had been issued in the name of Rajaguru and monies were withdrawn from that account also, the prosecution should have examined Rajaguru.  A whopping sum of Rs.59,40,000\/= was withdrawn from Rajaguru’s account.  No explanation is forthcoming from the prosecuting agency as to why the said Rajaguru, who is none other than the brother of PW27 was not examined before the court.  Rajaguru is found to be a material witness whose non-examination deals a blow to the case of the prosecution.  Further, the uncorroborated sole version of PW27, who is also found to be an accomplice, coming out with contradictory versions, cannot at all be accepted by the court.\n<\/p>\n
\t53. The cheques used for drawing money by PW27 and Rajaguru were not produced by the prosecution.  Therefore, the entire story of the prosecution projected through PW27 that monies were withdrawn and paid to A7 is found not acceptable.\n<\/p>\n
\t54. PW27, during the course of chief-examination would state that he was a sales representative of Videocon.  But, during the course of cross-examination, he would state that he informed the investigating officer that he was  a Wholesale Dealer.  Further down in the cross-examination, he says that he was an institutional sales representative of Videocon. He further changes his version and comes out with yet another version that he was a Franchisee of Vasantham Electronics and Rewinders.\n<\/p>\n
\t55. To top it all, it is found that PW27, the star witness in this case, as regards the alleged transaction of Videocon Television Company was charge-sheeted by the Central Bureau of Investigation and he is facing a criminal trial in C.C.No.28 of 1996 under section 120B read with sections 419, 420, 467, 458 and 471 of the Indian Penal Code  and section 13(2) read with section 13(i)(d) of the Prevention of Corruption Act, 1988.  A copy of the charge sheet was produced on the side of the defence and the same was marked as Ex.D18.  There is no denial that the said case is still pending trial before the Special Court for CBI Cases at Coimbatore.\n<\/p>\n
\t56. In RAM DAS v. STATE OF MAHARASHTRA<\/a> ((2007 2 SCC 170) it has been observed,
\n“We have no doubt that PW5 is a thoroughly discredited witness and cannot be relied upon.  He appears to be a wholly untruthful witness and was introduced by the prosecution only to buttress the case of the prosecution.  We, therefore, reject his evidence outright.”\n<\/p>\n
\t57. In  JAGJIT SINGH v. STATE OF PUNJAB<\/a> ((2005) 3 SCC 689), it has been observed,
\n“We are convinced that this witness is not worthy of belief and stands thoroughly discredited in his cross-examination.  His assertions further demonstrate that he has no regard for truth.  He went to the extent of claiming that he was a resident of Village Khamanon Kamli whereas the case of the prosecution is that he is a resident of Village Madera and the evidence of Billo, PW6 on this aspect is very categorical.  We must, therefore, discard the evidence of Bashir, PW4.”\n<\/p>\n
\t58. It is a settled position of law that the evidence of a thoroughly discredited witness cannot at all be relied upon to record conviction. In STATE OF UTTARPRADESH v. FARID KHAN<\/a>  ((2005) 9 SCC 103), the Supreme Court has held as follows:-\n<\/p>\n
“Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution.  But, if such an evidence gets sufficient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence.”\n<\/p>\n
\t59. Apart from PW27, there is no witness to substantiate the charge that A7 received bribe from the representative of the Videocon Television Company. The evidence of the person having a criminal background unless and until substantiated by other witnesses cannot be banked upon by the court.\n<\/p>\n
\t60. There is no corroboration received to support the evidence of PW27 who was an accomplice.  The conviction for the alleged bribe received from the officials of the Videocon as against A2 and A7 cannot be sustained solely based on the evidence of the tainted witness, PW27.  The Trial Court has completely ignored the above facts and circumstances and has completely relied upon the discredited and tainted witness of PW27 to convict A2 and A7 with respect to the aforesaid charge.\n<\/p>\n
\t61.  The other charge as against A2 is that A2, by misusing his official position, received a sum of Rs.47,00,000\/= from Uptron Company.  The prosecution has chosen to examine PW12 Ganesh Khanna and PW14 P.Sivasankaran and PW15 Shanmugam in order to establish the above charge.\n<\/p>\n
\t62. PW12 Ganesh Khanna has deposed before the court that he met A2 at his residence and made a request to purchase his colour television sets as the buyers as well as sellers are the Government.  It is his further version that A2 informed him that he would look into the matter.  Thereafter, PW14 P.Sivasankaran, PW15 Shanmugam and himself left the house of A2.  They also met A7 who was the Personal Assistant to the Minister. A7 demanded Rs.1000\/= per set.  It is to be noted that PW12 does not say that A2 ever demanded money from Uptron Company.\n<\/p>\n
\t63. PW14 Sivasankaran would state that the second accused Selvaganapathy asked him and other officials of Uptron Company as to how many television sets could be supplied by them in a month.  He warned that orders for supply of colour television sets would be placed with other Companies if his Company failed to supply in time.  He has further stated that Ganesh Khanna, PW12 informed him that A7 Janardhanan  contacted him through phone and asked him to meet A7   and thereafter, himself, Chandrakumar and PW12 proceeded to the residence of A2.  When they entered into the residence of A2, A7 Janardhanam emerged  from the house of A2 and asked them to pay a sum of Rs.1000\/= per set and PW12 accepted it. Thereafter, they issued uncrossed cheques in the name of Balasubramanian on behalf of their Company. They have also obtained signatures of Balasubramanian in the vouchers for disbursement of the cheque.  Firstly, they gave a cheque for Rs.6,00,000\/= payable to A7.  The said amount was withdrawn as the cheque was drawn payable to “Ourselves”. As A7 contacted Chandrakumar over phone and made a request that the amount due to him could be paid immediately, they encashed the cheque by drawing the cheque payable to “Ourselves”, it is deposed further by PW14 Sivasankaran.  Neither PW12 nor PW14 ever stated that A2 demanded any money for placing orders with their Company for supply of television sets.  It is to be noted that PW14 and PW15 forged the signature of Balasubramanian who was held up in Tirunelveli to withdraw  the money.  Therefore, in the above background, the evidence of PW14 is found not trustworthy.\n<\/p>\n
\t64. PW14 would further depose that Chandrakumar, Shanmugam, PW15 and himself proceeded in an autorickshaw to an old hideout adjacent to the residence of A2 and handed over Rs.6,00,000\/= to A7 Janardhanam.  It is to be noted that Balasubramanian was not available since he was held up in Tirunelveli as per the earlier version of PW14.  It is very difficult to believe that Balasubramanian, who was at  Tirunelveli when the money was drawn from the bank descended on the City of Chennai for the purpose of delivering money to A7 immediately after withdrawing the amount from the bank.\n<\/p>\n
\t65. PW15 Shanmugam would depose that Sivasankaran, Chandrakumar, Balasubramanian and himself carried the amount through an autorickshaw and alighted at the bus stop at Sathya Studio.  They went into the residence of the Minister Selvaganapathy.  Balasubramanian and himself stood outside.  PW1 Sivasankaran and Chandrakumar went inside the residence of A2 with cash.  Later on, they came out and informed them that they handed over cash to A7 Janardhanan.  The place where the money was paid does not find corroboration.  PW14 and PW15 have come out with contradictory version with respect to the place where the money was paid.  It throws doubt on the veracity of the testimony of PW14 and PW15.  To top it all, PW14 would depose that he did not have any direct contact with A2.  Nor had he asked money from the company people.  The company people also did not pay any amount to him.  Therefore, the alleged payment to A2 through A7 spoken to by PW14 and PW15, the accomplices in the crime, does not inspire confidence more especially when there is no corroboration from independent sources.\n<\/p>\n
\t66. PW15 would state that an agreement was entered into between Uptron Company and himself on 5.2.1996.  Uptron Company issued cheque in the name of Selaippan, Shanmugam, Balasubramanian and Janardhanan.  The said cheque was signed by Ganesh Khanna who was examined as PW12. During the course of cross-examination, PW15 would admit that he interpolated the agreement as though the agreement came into force on and from 18.1.1996.  It is his version that before he put his signature in the agreement, PW12 had signed Ex.P79.  He cancelled the typed portion of the date and wrote in pen that the said agreement came into force with effect from 18.1.1996.  It is very pertinent to note that the withdrawal of the amount of Rs.6,00,000\/= was made on 24.1.1996 itself even before the agreement was signed.  Only to cover up the date of first payment on 24.1.1996, PW15 himself had ante-dated the agreement from 5.2.1996 to 18.1.1996.\n<\/p>\n
\t67. PW12 Ganesh Khanna would state that originally the date of the agreement was written as 5.2.1996 and thereafter it was corrected as 18.1.1996.  But, he signed the agreement, Ex.P79 only on 5.2.1996.  The evidence of PW12 would go to show that the top official of Uptron Company had entered into the said agreement only on 5.2.1996.  As the money was drawn on 24.1.1996 long before the agreement was signed by the top officials of the Uptron Company, the court genuinely entertains a doubt as to the alleged payment of money through A7 on withdrawal of Rs.6,00,000\/=.\n<\/p>\n
\t68. PW15, in his cross-examination, would state that the first payment of Rs.6,00,000\/= was made on 24.1.1996.  That cheque, Ex.P82 was deposited into bank and was encashed and disbursed on the same day.  PW13 accompanied him and other officials on one occasion when they handed over the money.  The aforesaid version of PW15 is completely contradicted by PW13 S.K.Khanna.  S.K.Khanna would categorically state that he came to the Madras Branch Office only in the first week of February 1996 for preparing balance sheet and during that visit, Ganesh Khanna, PW12 instructed him to accompany  Sivasankaran and Chandrakumar to meet the Personal Assistant to the Minister with Shanmugam to give money in cash but, he did not go alongwith them.  Sivasankaran and Chandrakumar only told him that they gave money to the Personal Assistant to the Minister.  Therefore, the version of PW15 that S.K.Khanna, PW13 accompanied him for making payment is found to be totally false as it is not corroborated by PW13. PW13 has gone a step further and deposed that he has never seen the Personal Assistant to the Minister and he also did not witness any payment of money to any person.  PW15 is a witness who cannot be safely relied on to establish the case of the prosecution that payment of money was made to A7 because his version regarding the persons who were present at the time of withdrawal of the money and the place where the money was given do not tally with the evidence of other witnesses.\n<\/p>\n
\t69. PW15 would state that PW13 S.K.Khanna accompanied the officials of Uptron when they went to make a payment to A7.  That was completely contradicted by PW13 who would state that he came down to Madras Branch Office only during the first week of February 1996 at the time when the agreement was prepared.  PW13 to PW15 prominently referred to the role of Chandrakumar, but, quite unfortunately the said Chandrakumar was not examined by the prosecuting agency.  It is found that the depositions of PW13 to PW15 are contradictory with each other and are at complete variance. In such circumstances, the non-examination of Chandrakumar looms large.  It is to be further noted that none of the witnesses viz., P.Ws.12, 13, 14 and 15  ever mentioned that A2 demanded money or that A7 took money on behalf of A2.\n<\/p>\n
\t70. When there is virtually no reliable and trustworthy evidence forthcoming from the side of the prosecution, it is found that the Trial Court has simply adverted to the chief examination portion of the witnesses referred to above and has arrived at a conclusion that A2 misused his position as public servant and received bribe from  BPL Colour Television Company, Videocon Company and Uptron Company.\n<\/p>\n
\t71. Now, let us take up the charge framed against the 7th accused who was the Personal Assistant of the second accused.  The charge is that he being a public servant, abused his official position and obtained himself pecuniary advantage to the tune of Rs.28,56,000\/= from Keltron Company which supplied 2856 television sets to the Government of Tamilnadu.  A7, being a Personal Assistant to the Minister A2, had no role in the decision making process undertaken and completed in connection with the supply of television sets to the villages.  There is virtually no evidence even to infer distantly that A7 had a role in fixing the price of the television sets purchased by the Government nor had he played a role in the allotment of quantities to various suppliers from whom the television sets were ultimately purchased.  He had also not played any role in the manner of selecting any particular supplier firm.  No one also has spoken to the fact that he exercised certain amount of influence to select a particular company for supplying the television sets.\n<\/p>\n
\t72. The prosecution has examined PW22 to PW26 and PW28 in order to establish the aforesaid charges framed against A7. PW22 V.K.K.Dasan and PW26 V.N.Ramachandran, Branch Manager of Chennai Branch, Keltron would state that Keltron owed PW22 Dasan a sum of Rs.50,00,000\/= and odd long prior to November 1995 and that PW22 had been demanding it from the Company.  But, quite surprisingly, PW23 Balan Nambiar feigned ignorance of such liability of Keltron Company.  PW22 V.K.K.Dasan was appointed as agent by PW23 Balan Nambiar for Keltron Company.  PW37 would state that the Company, in fact agreed to pay Rs.1900\/= per set as commission to PW22.  That was the normal discount paid to any distributor by their company, he has stated before the court.  Therefore, no special favour was shown to PW22 as per the evidence of PW23.\n<\/p>\n
\t73. PW23 Balan Nambiar would depose before the court that when he met the second accused and the seventh accused in connection with the television set supply transaction, no one demanded any money.  He his very emphatic that A7 did not demand Rs.1000\/= per set either for himself or for any other person.  PW22 Dasan would state that he was introduced to A7 by PW23, but, PW23 seriously disputes such a version of PW22.  Therefore, the evidence of PW22 stands uncorroborated on this aspect.\n<\/p>\n
\t74. PW23 Balan Nambiar has come out with a version for the first time during the course of trial that when he first met the second accused, the latter enquired with him if the Company had proposed to supply television sets directly or through agents and that when PW23 informed him that the supply would be met only through agents, the 7th accused expressed his desire to meet the agent.  PW80, the Deputy Superintendent of Police, who examined PW23, during the course of investigation would state that the aforesaid version was not disclosed to him.\n<\/p>\n
\t75. PW23 Balan Nambiar would also state that A7 fixed the appointment to meet the second accused to effectively make his representation on behalf of his Company.  PW80, Deputy Superintendent of Police contradicts such a version given during the course of investigation.  Therefore, this version also is found to be an improved one.  In the face of such contradictions, his testimony cannot be accepted without corroboration.\n<\/p>\n
\t76. PW22 Dasan has deposed that on three different occasions viz., the second week of February, last week of February and third week of March 1996, he paid Rs.17,00,000\/=, Rs.3,00,000\/= and Rs.8,56,000\/= respectively to the 7th accused. It is his further evidence that on each one of those three occasions, PW23 Balan Nambiar accompanied him, but, unfortunately, PW23 Balan Nambiar distanced himself during the course of evidence from such a version that he did accompany PW22 on those three occasions to the house of A7 for handing over the money.\n<\/p>\n
\t77. PW22 Dasan would further depose that on each occasion he proceeded to meet the second accused to pay him bribe, he first met the security guard standing outside the main gate and through the security guard, he sent for the 7th accused and the security guard went inside the house of the second accused and brought the 7th accused who met PW22 outside the main gate.  Firstly, the security guard, the independent witness to the transaction and not an accomplice was not examined by the investigating agency.  Secondly, the Deputy Superintendent of Police, PW80 would state that the aforesaid versions  were not spoken to by PW22 during the course of investigation. Further, his statement appears to be highly artificial and improbable.  PW23 Balan Nambiar was treated as hostile.  PW23 resiles from his version before the investigating officer that he accompanied PW22.  Even assuming for the sake of argument that PW23 did accompany PW22 to the house of A2 to meet A7 for making payment to him, there was no reason for PW23 to stay back in the car leaving PW22 to proceed to the main gate for making payment to A7.  He would not have seated in the car itself had he accompanied PW22 upto the main gate of the Minister’s house.\n<\/p>\n
\t78. PW22 would depose that Keltron owed him a sum of Rs.50,00,000\/=.  He was in financial distress as his business suffered a setback.  Therefore, he agreed to act as agent in the transaction with the fond hope that he could collect his dues.  Admittedly, he was paid only a sum of Rs.51,00,000\/=.  The Government had retained a sum of Rs.3,26,400\/= from out of total consideration of Rs.54,26,400\/= payable to him as per the agreement.  PW22 would depose that the said sum of Rs.3,26,400\/= was retained by the Government to meet the expenses incurred on the officers of the Government.  Such a version is quite against his version before the investigating officer that the said sum was retained for the purpose of spending on transport to deliver the television sets at the scheduled destination points.  All these contradictory versions would lead to an inference that PW22  was not speaking the truth before the court.\n<\/p>\n
\t79. It is on record that Keltron Company obtained a letter from PW22 Dasan that there was no dues remaining unpaid to him  only in the month of September\/October 1996 after the police investigation had commenced in this case.  It is really a salient point to show that all was not well with the conduct of the officials of the Keltron Company.  There was no explanation from Keltron Company for obtaining no due letter from PW22 Dasan in a hurry after the police investigation in this case had commenced.\n<\/p>\n
\t80. PW22 Dasan had categorically stated that there were books of accounts maintained by him relating to the transport charges, etc borne by him.  During the course of cross-examination, PW22 would state that he did not in fact show the books to the police.  But, when he was cross-examined by the 5th accused, he would state that he, in fact, showed the books of accounts to the investigating officer and the latter seized the same.  There is no material to show that those materials were seized and produced before the court.  In view of the above facts and circumstances, the court finds that the Trial Court has simply ignored the self-contradictory and inter-contradictory versions of PW22 while returning a verdict that A7 abused his position as public servant and obtained pecuniary advantage  from Keltron Company.  The court comes to the definite conclusion that it would be totally unsafe to accept and act upon the uncorroborated testimony of PW22 who was one of the collaborators and accomplices in the transaction.\n<\/p>\n
\t81. Let us now take up the charge as against the 7th accused that he abused his position as a public servant and obtained pecuniary advantage to the tune of Rs.10,00,000\/= for himself from PW63 Vaikuntam in connection with the supply of 4700 colour television sets by Solidaire Company.  The prosecution has chosen to come to examine PW62 Ramaniprasad, PW63 Vaikuntam, PW64 Sundaresan in order to substantiate the aforesaid charge.  PW64 Mr.Sundaresan was the Branch Manager of the Bank.  Therefore, the evidence of PW62 Ramaniprasad and PW63 Vaikuntam will have to be thoroughly and critically analysed by this court.\n<\/p>\n
\t82. PW63 Vaikuntam was working as Security Officer in Solidaire Company.  He claims that he was also appointed as agent on commission basis for procuring orders for the very same Solidaire Company.  He would depose that a letter appointing him as an agent by the Company was handed over to the police during the course of investigation.   But, surprisingly, the said letter of appointment as agent was not produced before the court.  Such a grave omission on the part of the investigating official cast a doubt on the very claim of PW63 Vikuntam that he was appointed as agent by Solidaire Company and he, in fact, acted as agent to clinch a deal.\n<\/p>\n
\t83. PW62 Ramaniprasad would depose that PW63 Vaikuntam was appointed as Liaison Agent and a letter to that effect was also issued to him.  Such a letter also was not produced before the court by the investigating agency.  It is to be borne in mind that PW63 Ramaniprasad has not come out with a version that he was appointed as Liaison Agent before the investigating officer, PW80.  The court will have to primarily determine whether money was available with PW63 Vaikuntam for making payment to the 7th accused.  Firstly, except the sole version of PW63 that he received a sum of Rs.10,00,000\/= and odd  from Solidaire Company, there is no other witness to corroborate his version.  Even PW62 has not deposed that money was ever paid to PW63 as commission or under any other category in connection with the sale of television sets to the Government.\n<\/p>\n
\t84. In all fairness, the investigating agency should have produced the books of accounts maintained by Solidaire Company to establish the fact that PW63 was paid with commission money more especially when the order of appointment as commission agent or Liaison Agent was not produced.  It is quite unbelievable that the Solidaire Company of this stature, chose to take vouchers from PW63 for making payment of commission in lakhs to him.  Further, PW63 would come out with a revelation that no vouchers have been obtained from him.  He would further depose that he did not maintain any accounts except some scribbling on a piece of paper.  Even if Solidaire Company had transacted such payment of commission through voucher, the books of accounts and other records maintained by the Solidaire Company, relating to payment of Rs.10,00,000\/= and odd to PW63 would reflect it. Quite unfortunately, no such record from Solidaire Company was produced to establish the aforesaid aspect.  When no authentic evidence is forthcoming from the Solidaire Company with respect to payment of commission made to PW63, the court is not inclined to accept the story reeled out by PW63 before this court.\n<\/p>\n
\t85. PW63 Vaikuntam is a retired police officer.  The evidence on record would show that he had served as Inspector in the CBCID Wing of the Government.  The present case has been launched by CBCID as against these accused.  Therefore, there is every reason to believe that PW63 Vaikuntam, the erstwhile official of  CBCID Wing had obliged them.\n<\/p>\n
\t86. PW62 has clearly stated before the court that the special model of Solidaire Company Television  was sold at Rs.14,900\/= in the open market.  Solidaire Company had quoted the price at Rs.14,800\/= in the tender form. It appears that after negotiation, the price was reduced to Rs.14,500\/= per set.  Therefore, the Solidaire Company could not have thought of selling the colour television sets with special features below the price of Rs.14,500\/=.\n<\/p>\n
\t87. On the aspects of the demands and acceptance made by the 7th accused, the evidence of PW63 Vaikuntam sounds most incredible.  If really there had been such a demand from A7, one would expect PW63 to disclose it to PW62 or any other official connected with the Solidaire Company.  But, PW62 has observed stoic silence and he, in fact, does not corroborate the aforesaid version of PW63.  The demand is said to have been made at the residence of A2.  PW62 does not say that he ever visited the residence of A2.  This again falsifies the evidence of PW63 that he had gone to the residence of A2 alongwith PW62.  To top it all, PW62 has never stated that PW63 accompanied him to any place in connection with this transaction. We have already pointed out that PW63 has come out with a version that he first met the security guard on duty when he proceeded to make payment to the 7th accused and through the security guard, he sent for the 7th accused. It is found to be an improvement he has made over his statement to the investigating official.  He has also not made any mention with respect thereto in his statement Ex.P371 recorded under section 164 of the Code of Criminal Procedure.  PW63 would further state that in the month of February 1996, he received a phone call from the 7th accused and responding to such a call, he proceeded to the house of A2 and paid money to A7.  But, in the statement, Ex.P371 given under section 164 of the Code of Criminal Procedure, he has stated that such a transaction took place only in the month of January and not in the month of February.  The Trial Court has rightly made an observation that no person would have paid any money to A7 all for himself as he was only a Junior Personal Assistant to the Minister, A2.  But, the Trial Court infers that such money meant to be  paid to A2 could have been given to A7 and A7 would have received the same.  Firstly, it is not the prosecution case. Specific charges have been framed against A7 on the ground that such sums were paid only for the 7th accused.  The court cannot build up a case of its own taking a marked departure from the crystallised stand of the parties.  In view of the above facts and circumstances, the court finds that the prosecution miserably failed to establish that the 7th accused misusing his official position as public servant obtained pecuniary advantage for himself from PW63 Vaikuntam.\n<\/p>\n
\t88. Let us now take up the charge that in pursuance of the criminal conspiracy, A7 obtained Rs.6,60,72,000\/= as pecuniary advantage for the second accused. The criminal conspiracy theory putforth by the prosecution was also disbelieved by this court.  The prosecution must first explain the sums of money covered by this figure viz., Rs.6,60,72,000\/=.  Secondly, it is their duty to establish that there was a specific demand personally made by the second accused with any specific individual or individuals.  Thirdly, it should be established that the said sums were paid into the hands of the 7th accused as per the instruction passed on by the second accused to the givers of the said sums.\n<\/p>\n
\t89. There is no evidence on record to establish the nexus the second accused had with the alleged episode of  receiving money meant for the second accused by the 7th accused.  There is also no material to show that the money alleged to have been paid to the 7th accused by both Keltron and Solidaire Companies was meant for the second accused.  It is to be remembered that the aforesaid charge specifically relates to the alleged payments made to the second accused having been received by the 7th accused as per the specific instructions given personally by the second accused to each one of the persons who agreed to pay amounts on behalf of the Company.  The prosecution, in its attempt to prove and establish that the second accused demanded and agreed to accept money from each one of the supplier firms viz., Uptron, Videocon and BPL, has examined P.Ws.2 to 21 relating to Uptron Television Company, PW27 and PW29 to PW31 relating to Videocon Television Company and P.Ws.32 to 61 relating to BPL Television Company.\n<\/p>\n
\t90. PW12 Ganesh Khanna does not say that the second accused made any demand for money but he has come forward with a totally new version that the 7th accused demanded a sum of Rs.1000\/= per set for himself.  Such a version does not find a place in his statement before PW80, the investigating officer in this case. Further, it is also not the case of the prosecution. He would further depose that the decision to sell television sets at Rs.14,500\/= per set was taken by the Head Office at Lucknow and that he had nothing to do with the said decision making process.  It is also not his case that he witnessed the payments made to the 7th accused.  It is not the specific version of PW12 that the money that was agreed to be paid to the 7th accused was meant only for the second accused.  Therefore, the evidence of PW12 is not at all helpful to establish the aforesaid charge as against the 7th accused.\n<\/p>\n
\t91. PW13 S.K.Khanna has not deposed that the second accused made a demand for money or accepted it.  It is also not his case that he witnessed the 7th accused making a demand or receiving payment.  Therefore, his evidence also does not come to the rescue of the prosecution.\n<\/p>\n
\t92. For the first time in the witness box, PW14 Sivasankaran  would state that the second accused demanded from the Company officials a sum of Rs.1000\/= per set.  It is to be noted that this is not the case of the prosecution. It also does not find a place either in his statement under section 161 of the Code of Criminal Procedure or in his statement, Ex.P374 under section 164 of the Code of Criminal Procedure recorded by the learned Judicial Magistrate.  His evidence was completely demolished by the defence by clearly bringing out that the aforesaid version deposed before the court as against the 7th accused was a version totally inconsistent with his earlier statements and particularly not in consonance with the case of the prosecution.\n<\/p>\n
\t93. The statement recorded under section 164 of the Code of Criminal Procedure  is not a substantive evidence.  But, such statements of the witnesses could be used for the purpose of contradicting the witnesses invoking the provision under section 145 of the Evidence Act.  The portions of the statement given by PW14 was marked as Exs.D5 to D8 on the side of the defence.  These Exhibits marked on the side of the defence not only shake the veracity of PW14 but also totally destroys his credibility. Therefore,it is not established that the alleged payment made to the 7th accused by PW14 was meant for the second accused. Coming to the evidence of PW15 Shanmugam, it is found that his testimony does not advance the case of the prosecution as he was not a witness to making a demand for money or accepting the same by any one.\n<\/p>\n
\t94. PW16 P.V.Nair also does not speak to any demand for money alleged to have been made by the second accused or the 7th accused or to the alleged payments made to the 7th accused.  The above facts and circumstances would go to show that the allegation that money was demanded and accepted from Uptron Company representatives stands not established by the prosecution.\n<\/p>\n
\t95. As regards the case of the prosecution that the second accused demanded money for himself from BPL, there is absolutely no evidence on the side of the prosecution.  The prosecution chose to examine PW58 Ravindran  to speak about such an allegation.  But, unfortunately, he failed to support the prosecution case.  No other witness also has stated that the second accused demanded money or accepted money from anyone representing BPL Company in the subject transaction.  The new version of PW58 Ravindran for the first time before the court that the second accused had a connection with what was alleged to have been paid to the 7th accused does not merit legal scrutiny.  He comes forward with a new version in the witness box that pursuant to the demand for money made by the 7th accused with the officials of the BPL Company, a sum of Rs.6,12,00,000\/=was paid to the 7th accused.  The present version in the box reeled out by PW58 Ravindran for the first time contradicts both his statement under section 161 of the Code of Criminal Procedure   and his statement Ex.P333 recorded under section 164 of the Code of Criminal Procedure.\n<\/p>\n
\t96. It is pertinent to refer to the decision in  STATE OF HARYANA v. GURUDIAL SINGH AND ANOTHER (1974 SCC (Crl.) 530) wherein it has been held as follows:-\n<\/p>\n
“The present one is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence.  One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police.  According to the version given in court, it was Pargat Singh who shot dead the deceased, while according to the other version it was Gurdial Singh of Ramana who was responsible for the crime.  Again according to the version given in court, the occurrence was witnessed by Avtar Kaur.  As against that the version contained in the police station was that Avtar Kaur had not witnessed the occurrence.  In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.  We see no ground to interfere with the judgment of the High Court.  The appeals fail and are dismissed.”\n<\/p>\n
\t97. In view of the above settled position of law, the prevaricating statements of PW27 merits no acceptance.  Under such circumstances, the testimony of PW37 Balaji and PW35 Krishnamoorthy looses its evidentiary value.\n<\/p>\n
\t98. No credible and unimpeachable evidence has been let in by the prosecution to establish that money was paid by BPL Company to any one of the accused.\n<\/p>\n
\t99. As regards the case of the prosecution that the second accused demanded and accepted for himself and through the 7th accused a sum of Rs.1,41,72,000\/=, this court has already dealt with the evidence of PW27 Jayaraj and rejected his prevaricating versions before the court. Further, his testimony did not inspire confidence of the court.  He was found to be most unreliable witness and therefore, his evidence cannot be accepted and safely acted upon.\n<\/p>\n
\t100. The books of accounts of no one of the Companies viz., Uptron, Keltron, Videocon, BPL and Solidaire were produced before the court in order to show that in their accounts, the payment of commission made as alleged were entered.  Certain cheques were proved to have been issued and encashed by the third parties.  There is a missing link between the encashment of those cheques and the payment made to the second accused or the 7th accused.  Therefore, the aforesaid charge that in pursuance of the criminal conspiracy, the 7th accused received a sum of Rs.6,60,72,000\/=  as pecuniary advantage for the second accused also was not established by the prosecution.\n<\/p>\n
\t101. Coming to the seizure of a sum of Rs.50,500\/= from the 7th accused on 4.11.1996 under the cover of mahazar, Ex.P381, attested by PW77 Karunakaran, it is found that the 7th accused has come forward with a plausible explanation in the written statement filed by him during his questioning under section 313 of the Code of Criminal Procedure  that the said money belonged to his brother-in-law Raju.  It is a matter of record that Raja was one of the witnesses who attested the mahazar, Ex.P381.  It would disclose that the said amount of Rs.50,500\/= belongs to the said Raju.  Therefore, he is entitled to get back the said amount recovered from the 7th accused.  Thus, it is concluded that no charge as against the 7th accused Janardhanan was established by the prosecution.\n<\/p>\n
\t102. Let us now take up the charge as against the fourth accused H.M.Pandey who was the Secretary, Rural Development Department. This court has already discarded the evidence of PW27 Jayaraj.  Jayaraj would depose that he met A4 in the State Guest House on 21.10.1995 during evening hours.  It is the version of PW27 that A4 demanded a commission of Rs.400\/= per set and indicated that there was a bright chance for fixing the price of each television set at Rs.15,000\/=. He would further depose that A4 asked PW27 not to quote anything less than a sum of Rs.15,000\/= per television set.  So, according to PW27, such an advice was given by A4 to him on 21.10.1995. But, it is found that PW27 had quoted the price of Rs.15,290\/= per set as per Ex.P139 and submitted the same to the office of the Director of Rural Development on 20.10.1995 itself.  His quotation at the rate of Rs.15,290\/= per television set on 20.10.1995 itself a day earlier to the alleged advice given by A4 to him would go to establish that PW27 was not speaking the truth with respect to the aforesaid episode.\n<\/p>\n
\t103. PW27 would further state in his chief examination that he proposed to quote at Rs.12,500\/= per set during the course of second Television Approval Committee meeting that was held on 26.10.1995.  But, such a course of action contemplated by PW27 was obviously against the alleged advice given by A4 on 21.10.1995. Had he received any such advice from PW27, he would not have reduced the quotation drastically from Rs.15,290\/= to Rs.12,500\/= during the second Television Approval Committee Meeting.\n<\/p>\n
\t104. The evidence of PW27 did not receive corroboration from PW29 Radhakrishnan, the Assistant General Manager of Videocon Company as regards the demand of commission of Rs.400\/= per set by A4.  To top it all, PW29 has come out with a revelation that the fourth accused in fact asked him as to why Videocon Company could not supply television sets directly to the Government eliminating the agents.  If at all A4 wanted to eliminate agents from the deal and expressed his desire to have direct deal with Videocon Company as admitted by PW29, there was no scope for him to ask for commission of Rs.400\/= per set from the agents PW27 and his brother.  PW27 would depose that his brother Rajaguru also accompanied him to the Government Guest House on 21.10.1995 to meet A4. The credibility of PW27 has completely nose dived.  But, quite unfortunately, the prosecution has never thought of examining his brother for lending corroboration to the evidence of PW27.  As PW27 is also found to be jointly guilty as per his own showing, it is totally unsafe to rely upon his statement without any corroboration from an independent source or by substantial evidence unerringly supporting his statement to add evidentiary value to his testimony.  The very fact that PW27 chose to quote a sum of Rs.15,290\/= per set on 20.10.1995 under Ex.P139 even before meeting A4  on 21.10.1995 and later on quoted for a sum of Rs.12,500\/= per set on 26.10.1995 even after meeting A4 with the alleged piece of advice rendered by A4 would go to show that PW27 never acted as per the alleged advice of A4.  The above facts and circumstances would go to show that the version of PW27 that A4 asked him to quote not less than Rs.15,000\/= and demanded commission of Rs.400\/= per set is found to be totally unbelievable.\n<\/p>\n
\t105. The independent witness, PW29 completely contradicts the statement of PW27 inasmuch as PW29 was asked by A4 to explore the possibility of eliminating the agent and effect supplies of television sets directly to the Government.\n<\/p>\n
\t106. The cheques given by Videocon Company to PW27 and his brother Rajaguru were encashed by them either as self or as third party. PW27 would admit that he does not remember as to how many self cheques and how many third party cheques were issued.  Similar was the case with regard to the cheques issued from the account of his brother Rajaguru.  If those cheques had been marked, the names of the third parties who received the proceeds of the cheques could have been easily detected.  Those third parties who really encashed the cheques and allegedly entrusted the proceeds after encashment to PW27 and his brother Rajaguru were not examined before the court to maintain the link in the chain of encashment and entrustment.  Of course, the prosecution has produced the statement of account, Ex.P162 of PW27 and the statement of account Ex.P163 of his brother Rajaguru.  But, unfortunately, the statement of accounts do not reflect the names of the third parties.  But, it would have definitely appeared in the third party cheques issued by PW27 and his brother Rajaguru.\n<\/p>\n
\t107. The non-production of those cheques and the non-examination of Rajaguru, brother of PW27 render the evidentiary value of payments alleged to have been made by PW27 totally suspect and  unreliable.\n<\/p>\n
\t108. PW27 has come out with a case that he made payment of a sum of Rs.1,79,200\/= on 5.1.1996, Rs.34,00,000\/= on 29.2.1996 and Rs.2,00,000\/= on 13.3.1996 to the fourth accused H.M.Pandey. It is to be noted that A4 H.M.Pandey ceased to be the Secretary, Rural Development Department on and from 7.12.1995.  It is quite unbelievable that PW27 made payments to A4 on those dates even after A4 had departed from the Rural Development Department on and from 7.12.1995.  As regards the alleged second payment of Rs.35,00,000\/= on 29.2.1996 to the fourth accused out of the accounts of Rajaguru, brother of PW27, the prosecution should have examined Rajaguru to establish the said transaction.  PW27 cannot point his accusing finger at A4 for such payment made from the account of Rajaguru.  The third payment of Rs.2,00,000\/= on 13.3.1996 was alleged to have been made from out of the account of PW27.  The relevant cheque was not exhibited before the court. The bank’s ledger, Ex.P162 would reflect that the said cheque bearing No.024980 was a clearing cheque and could not have been encashed by PW27 as alleged by him in his chief examination.  In fact, during the course of cross-examination, PW27 would categorically admit that the said cheque was not encashed by him.  Quite against his version in the chief examination that he withdrew a sum of Rs.2,00,000\/= from his account and paid to A4 at his residence in Anna Nagar, PW27 has come out with such prevaricating versions before the court without any regard for truth.\n<\/p>\n
\t109. Even as per the own showing of PW27, there was no role for A4 in the increase of allotment from 1000 television sets to 9448 television sets. Such being the case,  no person of ordinary prudence would have parted with commission to A4 at the rate of Rs.400\/= per set for 8448 television sets.  PW27 would depose that having sent a fax message Ex.P161 on 17.11.1995 to the Finance Secretary, he alongwith his brother met A4 on the next day i.e., on 18.11.1995.  He would further state that in the meeting with A2 on 19.11.1995, A4 also was present.  But, A4 has produced Ex.D27 to establish that he had been to Delhi on 16.11.1995 and returned to Chennai only on 20.11.1995.  A4 had been to Vellore as found from Ex.D28 on 11.2.1996 to attend to the visit of Her Royal Highness, the Duchess of Kent and returned to Chennai only on 13.2.1996.  But, unfortunately, the deposition of PW27 that he made payment to A4 during that period  at Chennai was accepted by the Trial Court.  The Trial Court would reason out that A4 would have come down to Chennai from Vellore and received money from PW27 during that period and returned to Vellore.  Firstly, that is not the case of the prosecution.  Secondly, such a surmise of the court was not supported by evidence. The court is not supposed to take a departure from the case of the prosecution and supply its own reasons for arriving at a conclusion with regard to a particular fact.  The court cannot construct and reconstruct a story different from the one propounded by the prosecution and convict the accused on that basis.  At any rate, such a conclusion arrived at by the Trial Court is totally unwarranted either by evidence or by facts of the case.\n<\/p>\n
\t110. With respect to the alleged payment from Uptron to the fourth accused, the investigating officer, PW80 has clearly deposed that PW14 during investigation informed him that on 12.2.1996, he encashed two cheques to the tune of Rs.20,56,250\/= and handed over the said amount to A8.  He would further depose that during police investigation, PW14 has never stated that A8 told PW14 that money was given to A4.  It is the version of PW14 that the amount of Rs.20,56,250\/= was taken to the residence of A4 by PW14 Chandrakumar, PW13 and PW15.  PW15 remained waiting in the autorickshaw but the others went inside the house and met A8.  As soon as they met A8, he contacted A4 and asked him to come to A8’s residence.  In the meantime, PW13 and PW14 waited in the adjacent room. After sometime, A4 arrived and went straight to the room of A8 and thereafter, A8 returned the suitcase informing them that the amount was delivered to A4.  But, quite unfortunately, PW80, the investigating officer in this case flatly denied that PW14 ever told him during the course of investigation that A8 passed on the message to PW14 that A8 paid money to A4.  The above deposition of PW80 completely contradicts the version of PW14. During the course of cross-examination, PW14 deposes that he did not remember whether he had stated during the police enquiry that a sum of Rs.20,256,250\/= was given on 12.2.1996 or not.  During the police investigation, it is found that PW14 has stated that the said sum of Rs.20,56,250\/= was handed over to A8 on 12.2.1996.  But, during the course of cross-examination, he deliberately comes out with a very vague version.  During the course of further cross-examination, PW14 would finally say that on 12.2.1996, no amount was paid to anybody quite against his statement before PW80 that the said amount was paid to A8 on 12.2.1996.\n<\/p>\n
\t111. PW14 would further depose that the cheque dated 5.2.1996 Ex.P86 was handed over to Balasubramanian on 24.1.1996 as per Ex.P106.  It is not clear as to why a cheque dated 5.2.1996 was handed over on 24.1.1996 itself.  In this connection, it is pertinent to note that the said Balasubrmanian who received the cheque was not examined by the prosecuting agency. It was he who could speak as to when he gave the said cheque to PW15 and how it was encashed.  Obviously, there is no record to show that the said cheque was encashed on 12.2.1996.  The episode surrounding other cheque Ex.P87 is more mysterious.  Though cheque, Ex.P87 dated 7.2.1996 was payable to PW15, it was received by Balasubramanian only on 28.2.1996 as per Ex.P107.  When the cheque itself was received on 28.2.1996, the prosecution failed to explain as to how such a cheque could have been encashed on 12.2.1996 itself.  Chandrakumar, who happened to accompany PW14 for making the alleged payment to A4 was not examined.  Chandrakumar being the immediate superior of PW14 could have thrown some light on the prevaricating version of PW14, but, quite unfortunately, the said Chandrakumar was not examined before the court.  The Trial Court has simply relied upon those witnesses whose testimony does not stand the legal scrutiny and arrived at a conclusion that A4 demanded and received commission from the agents of the Television Company misusing his office.\n<\/p>\n
\t112. Now, let us take up the charge as against A5 M.Sathyamurthy.  The entire case of the prosecution as against the 5th accused M.Sathyamurthy regarding payment of money to him in relation to Uptron Company is based on the alleged disclosure of A8 Duraisamy spoken to by PW12 to PW15.  Those witnesses have willingly and voluntarily participated in the payment of bribe as admitted by them.  Therefore, their testimony cannot be accepted and acted without corroboration on material particulars from independent sources.  It is a well settled proposition of law that evidence of accomplice is untrustworthy of credit, unless such evidence found corroboration on material particulars from independent sources. In this case, corroboration from independent sources is highly lacking.  One accomplice cannot corroborate another accomplice.  But, quite unfortunately, the court below has accepted and acted upon the evidence of accomplices as corroboration for the evidence of another accomplice.  As stated earlier, PW12 Ganesh Khanna, PW13 S.K.Khanna, PW14 Sivasnkaran, PW15 P.Shanmugam and PW16 P.V.Nair are all accomplices.  Further, their evidence as stated earlier is full of material contradictions and infirmities.  The Trial Court should not have accepted their evidence to record conviction.\n<\/p>\n
\t113. The findings of the court below that the 5th accused M.Sathyamurthy received money through A8 is not based on facts.  The Trial Court has simply surmised that the 5th accused must have received money and thereby arrived at a conclusion based on such conjectures which is not at all sustainable in law.   The prosecution has miserably failed to establish by acceptable evidence either direct or indirect that A5 received money from A8 Duraisamy to clinch the colour television set supply deal.\n<\/p>\n
\t114. PW27 is found to be an accomplice being one of the perpetrators of the crime.  He had willingly and voluntarily participated in the commission of the crime as per his own version.  There is no corroboration to substantiate his testimony.  The court has already held that the evidence of PW27 is completely untrustworthy and his evidence cannot be relied upon when there was no corroboration from any quarters.\n<\/p>\n
\t115. PW27 would depose that he attended the alleged meeting of the Television Approval Committee at the Directorate of Rural Development at Saidapet, but the evidence on record would clinchingly establish that there was no Television Approval Committee meeting held at the Directorate of Rural Development Department in Saidapet.  All the Television Approval Committee meetings were held only in the Secretariat.\n<\/p>\n
\t116. The evidence of PW27 that he gave a petition to the 5th accused M.Sathyamurthy at his Saidapet office offering to sell television set at Rs.12,500\/= did not find a place in the statement given by him under section 164 of the Code of Criminal Procedure.  The said material contradiction was not considered by the Trial Court.  With a view to involve the 5th accused M.Sathyamurthy, it appears that PW27 modulated his version to bolster the case of the prosecution.  It is the evidence of PW27 that he met A8 Duraisamy in the company of Raja  and Ravi but the said Raja  and Ravi were not examined as prosecution witnesses in this case. The reason for the non-examination was not explained by the prosecution.  Therefore, the prosecution has failed to primarily establish that PW27 met A8 in the company of Raja and Ravi. The evidence of PW27 that he paid bribe to the 5th accused for 9448 television sets whereas the admitted case of the prosecution is that A5 alongwith other members of the Television Approval Committee recommended only 1000 sets as evidenced by Ex.P20 and it was increased to 9448 television sets only by PW6 as evidenced by Exs.P12, P14 and P16 is found to be totally improbable and unacceptable.  When the Television Approval Committee participated by A5 has recommended only 1000 Videocon Television sets,  nobody would have ventured to pay bribe for 9448  sets to the 5th accused who was not part of the subsequent Television Approval Committee.\n<\/p>\n
\t117 The Trial Court has not properly evaluated and appraised the evidence of PW27 in proper perspective and has misconstrued the whole evidence of PW27.  The prosecution has come out with a case that the price fixation was not in the manner known to rules and regulations and the prices were inflated by including the commission and the price was fixed at a higher rate and the excess payment was collected and siphoned off by the accused.  But, the Trial Court, after going through the entire evidence, has rendered a categorical finding that the constitution of the  Television Approval Committee was lawful and the price fixed was perfect and normal as it was in accordance with the rules and regulations and those television sets also were made in accordance with the special specifications for the use of the Government of Tamilnadu.  In such circumstances, there is no necessity for any Television manufacturing company to pay any commission or bribe to the accused. The Trial Court failed to appreciate the defence exhibits D10 to D12 in proper perspective.\n<\/p>\n
\t118. In P.SIRAJUDHIN v. STATE OF MADRAS (1970 SCC (Crl) 240 SC), it has been held as follows:-\n<\/p>\n
“It is necessary to conduct a preliminary enquiry before charging a public servant with the allegations of dishonesty”.  “Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amounts to serious misdemeanor or misconduct of the type alleged in this case and the FIR lodged against him, there must be some suitable preliminary enquiry by a suitable and responsible officer.  The Lodging of such report against a person, especially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm, not only to the officer in particular, but to the department he belongs to in general.”\n<\/p>\n
\t119. No preliminary enquiry was conducted in this case as mandated by the Supreme Court in the aforesaid ratio before charging A1 to A7.  For all these reasons, it is found that the charge as against the 5th accused M.Sathyamurthy that he received bribe for placing orders for supply of television sets is found not established.\n<\/p>\n
\t120. Let us now go to the charge faced by the 6th accused N.Haribaskar.  The charge is that he abused his official position as public servant in connection with placing orders for supply of television sets to the villages and obtained pecuniary advantage for himself to the extent of Rs.35,00,000\/= from BPL Company. The prosecution chose to examine PW58 Ravindran, PW75 Murugesan, PW76 Padmanabhan in order to establish the charge.  It is to be noted that PW58 Ravindran and PW75 Murugesan have not supported the case of the prosecution.  As a result of which, both of them were treated as hostile and cross-examined by the prosecution.\n<\/p>\n
\t121. PW58 Ravindran had referred to a meeting he had with A8 Duraisamy and A9 Muthukumarasamy.  He had not stated that any money was passed on to the 6th accused N.Haribaskar.  In fact, it is his evidence that as his approach to A6 did not yield any fruitful result, he switched over and enlisted the services of A11 Baskar to influence A10 Mrs.Sasikala, both of whom were acquitted by the Trial Court and no appeal was preferred as against the verdict of acquittal.  In view of the above, the evidence of PW58 Ravindran carries no weight as far as the 6th accused N.Hari Baskar is concerned. At this juncture, it is better to refer to the judgment of the Trial Court.  The Trial Judge chose to hold that the evidence of PW58 Ravindran was of no use so far as A4, A5 and A11 were concerned. The learned Trial Judge chose to convict the accused referring to the evidence of PW58 though PW58 had not stated that he had any personal meeting with the 6th accused or that he passed on any money to be handed over to the 6th accused.  Therefore, the judgment of the Trial Court recording conviction as against the 6th accused based on the evidence of PW58 is found to be perverse.\n<\/p>\n
\t122. Let us now go to the evidence of PW75 Murugesan.  He does not disclose the involvement of the 6th accused in any part of the transaction in question.  To top it all, PW75 Murugesan has emphatically deposed before the Trial Court that he does not know  any person by name Ravindran (PW58) or Padmanabhan (PW76).  But, PW76 Padmanabhan would state that he alongwith A9 Muthukumarasamy and PW75 Murugesan proceeded to the house of A8 Duraisamy and thereat he not only saw A8 Duraisamy but also saw one Ravindran handing over a suitcase containing cash to A9 Muthukumarasamy informing him that the money was to be paid to the 6th accused.  PW76 would depose that PW75 Murugesan, A9 Muthukumarasamy and himself proceeded from the house of A8 Duraisamy to the residence of A6 and the suitcase with the cash was delivered to A6 at his residence.  It is his further version that A6 counted the currency and verified the amount.  He would depose that he did not remember the day or the date on which the aforesaid solitary visit culminated in the meeting with the 6th accused.  Elaborate cross-examination was done to test his veracity and trustworthiness.\n<\/p>\n
\t123. PW76, for the first time in the witness box, deposed that  at the residence of A8 Duraisamy, the cash that was given was kept in a suitcase and that it was divulged over there that the money given was meant for A8 for getting order for supply of television sets.  The investigating officer, PW80 Senrayaperumal  has categorically stated that those aspects were not disclosed by PW76 during the course of investigation conducted by him.  This shows that the witness is capable of modulating his evidence by making effective improvements at his whims and fancies.\n<\/p>\n
\t124. A6 was occupying the topmost bureaucratic position in the Government of Tamilnadu at the time of occurrence. PW76 did not have a standing in the society as to venture to meet the topmost bureaucrat at his residence which was guarded by the security personnel.  The fact remains that he traded in vegetables in the Metropolitan City of Madras.  He was not even a licensed vendor. Nor had he possessed any shop anywhere in the city.  It is his version that he used to purchase vegetables wholesale and sell them in portion to other retailers. Even such a business transaction was carried on as per his version from his residence itself.  Such a person could not have that too for the first time, had access to the house of A6.  Therefore, the challenge made to the veracity and trustworthiness of this witness made by the accused cannot be belittled by the court.\n<\/p>\n
\t125. Another interesting aspect also will have to be adverted to by this court.  PW76 Padmanabhan would state that A8 Duraisamy was residing in an apartment where a company selling mineral water by name CHERI-O  was also operating in one of the flats with its sign board outside. DW1 Dr.Bharath Keerthi, a reputable witness was examined on the side of the accused and the lease arrangement he had with CHERI-O was also marked.  The evidence of DW1 in the background of Ex.D25 would establish clinchingly that CHERI-O moved into one of the flats in the apartment where A8 Duraisamy resided only in the year 1998.  It did not exist in the year 1995.  There is no reason to disbelieve the evidence of DW1 Dr.Bharath Keerthi.  Ex.D25 authenticates the evidence of DW1 and completely destroys the evidence of PW76 that he made a visit to the house of A8 Duraisamy.\n<\/p>\n
\t126. Yet another circumstance which surfaced during the course of trial as regards the previous role of PW76 Padmanabhan also will have to be referred to by this court.  The Trial Court, on a perusal of the evidence on record, has come to a decision that PW76 had appeared as witness for the police in other cases also. But, very casually, the Trial Court has commented that such a role of PW76 cannot be a reason to reject his testimony.  It has also made a comment that nothing has been established to show that PW76 Padmanabhan had any personal grievance against A6.  It is to be noted that there is no necessity to prove an element of animosity or grievance because PW76 being a stock witness even as per the own showing of the prosecution would not normally act on grievance or animosities, but, would act only at the behest of the so-called “Master”.  The Trial Court ignored to consider the unassailable evidence on record to show that PW76 was a stock witness, who never gained entry to the house of A8 Duraisamy.  When PW75 Murugesan has emphatically denied any association with PW76 Padmanabhan, the Trial Court has casually recorded a finding that PW76 Padmanabhan was known to PW75 Murugesan. The Trial Court has totally forgot the fact that PW76 Murugesan did not know the person by name Padmanabhan.  No preliminary enquiry as mandated in the decision in P.SIRAJUDHIN v. STATE OF MADRAS (1970 SCC (Crl) 240 SC) was conducted by the respondent police before taking up the regular investigation against A6 who occupied the topmost bureaucratic position in the Government of Tamilnadu.  The court finds that there is no credible evidence adduced to support the aforesaid charge framed against A6.  The aforesaid charge as against A6 stands not established by the prosecution.\n<\/p>\n
\t127. Let us now deal with the charge as against A8 Duraisamy.  The charge is that A8 Duraisamy, in pursuance of the criminal conspiracy, abetted A4 and A5 to commit the offence of criminal misconduct by getting pecuniary advantage.  The court has also held that the criminal conspiracy theory putforth by the prosecution was not established.  In its endeavour to establish the charge framed as against A8 Duraisamy, PW12 to PW15 alone were examined.  It is to be noted that the other witnesses do not speak anything about the overtact attributed to the 8th accused.  Shanmugam, PW15 would modestly admit that he was not aware of the prosecution story and that he came to know about the alleged transactions only from his brother-in-law Sivasankaran, PW14.  PW12 Ganesh Khanna, Regional Manager of Uptron India Limited, Hyderabad would state that A7 Personal Assistant to A2 Selvaganapathy demanded Rs.1000\/= for A2 and A8 demanded Rs.2750\/= for himself, A4 and A5.  He would further depose that the agreement, Ex.P79 was entered into for appropriating the commission paid by Uptron India Private Limited.  Ex.P79, the commission agreement was sent to the Head Office at Lucknow for approval, PW12 would depose before the court. No iota of material was produced to show that the said agreement was ever sent to Lucknow for approval.  Much worse is that Ex.P79 does not have any seal of the Head Office or Branch Office.  The designation seal of the office at Lucknow was also not found.\n<\/p>\n
\t128. The court cannot lose sight of the fact that Uptron Company is a Government Undertaking of Uttarpradesh Government. It is the emphatic version of PW2 that he did communicate what all transpired between himself, A8 Duraisamy and A7 K.Janardhanan to the Head Office and the Head Office in fact approved the proposal to pay commission. No Government Company would orally instruct the officials to go ahead with payment of commission without placing it on  record.  No document was filed from the office of Uptron to establish that the proposal to pay commission for placing orders for supply of colour television sets was approved by the Head Office.  The non-production compels the court to draw an inference that there was no such document available in the Head Office at Lucknow.\n<\/p>\n
\t129. PW14 Sivasankaran, during the course of chief-examination would depose that PW13 S.K.Khanna, one Chandrakumar and himself proceeded to the house of A8 Duraisamy with Rs.20,56,000\/= and handed over the same to the 8th accused Duraisamy, who, in turn, handed over the same to the 4th accused H.M.Pandey.  He would also state that PW13 and Chandrakumar and himself witnessed from the next room A8 handing over the amount to the fourth accused  H.M.Pandey.  The said Chandrakumar was not examined before the court.  S.K.Khanna, PW13 would claim no knowledge about the payment of money to anyone.  The fact remains that PW13 was not treated as hostile and his above version was not put to test by cross-examination by the prosecuting agency.  The aforesaid facts and circumstances would go to show that PW14 was not speaking the truth.  PW14 Sivasaknaran was a servant of Uttarpradesh Government.  His brother-in-law entered into an agreement to obtain commission from the supply of television sets by the Government of India Company of Uttarpradesh.  It is the case of the prosecution that the said idea was supplied only by PW14.  Therefore, there is every possibility for PW14 to fabricate a story to wriggle out himself and also his brother-in-law from the complicity in the transaction clinched by the Government owned Company of Uttarpradesh Government.\n<\/p>\n
\t130. PW14 and PW15 would depose that Balasubramanian was already having an account at Tirunelveli but a new account was opened at Chennai to appropriate the commission.  It is in evidence that uncrossed cheques towards payment of commission were issued by Uptron Company owned by Uttarpradesh Government.  It is totally unbelievable that uncrossed cheques were issued for lakhs and lakhs of rupees towards commission by a Government owned Company.  PW12 and PW14 have come out with an artificial version that PW12 Khanna came down all the way from Hyderabad to issue cheque facilitating the other accused to encash the same. There is no explanation as to why he ventured to come all the way from Hyderabad to Chennai for the purpose of simply entrusting the cheque when it could have been done by post. If the commission amounts were meant to be paid only to the accused, then why should PW2 come down from Hyderabad carrying the cheques.  Such a larger issue was not answered by the prosecution.\n<\/p>\n
\t131. The Government of Tamil Nadu was the purchaser of television sets for installation in villages.  In that case, the Uptron Company could have contacted the Government of Tamilnadu and interacted over the matter.  The role of intermediaries in the Government to Government transaction projected by the prosecution cast a doubt on the entire story relating to the payment of commission to the Minister and other officials through intermediaries. Ex.P79, the commission agreement is said to have come into force on and from 5.2.1996.  But, PW12 to PW14 would depose that it came into existence on 18.1.1996 itself.  The last line found in the agreement has been struck off and rewritten  as if the said agreement came into effect from 18.1.1996.  The stamp papers would show that they were purchased only on 22.1.1996.  When the stamp papers bore the date of purchase as 22.1.1996, the said document could not have come into existence four days earlier i.e., on 18.1.1996.  Normally, the name of the person from whom it was purchased would find a place in the stamp papers.  But, the stamp papers in Ex.P79 does not bear any such name.  The stamp papers were also not consecutively numbered, it is found.  No explanation is forthcoming for such inconsistency found apparent on the document, Ex.P79.\n<\/p>\n
\t132. Ex.P79 was entered into between Shanmugam, PW15 and S.K.Khanna, PW12  as per the case of the prosecution and it was approved by the Head Office. But, nothing was produced by the prosecution to establish that the dealing contemplated under Ex.P79 received the approval of the Head Office.  Ex.P79 contemplates payment of commission by cheques in the names of P.Shanmugam, P.Balasubramanian, P.Selliappan  and K.Jawahar of Madras. Firstly, the evidence on record would go to show that they were not residents of Madras, but, they were the residents of Tirunelveli. There is no privity of contract between Balasubramanian, Selliappan and Jawahar on the one side and Uptron Company on the other side.  When there is lack of privity of contract, one fails to understand as to how Uptron Company, a Government owned one could have agreed to issue cheques to Balasubramanian, Selliappan and Jawahar.  The Uptron Company being the Government Undertaking, in order to avoid adverse remarks that may be passed by the internal auditors, would not have dreamt of issuing cheques to third parties who were not parties to the contract at the whims and fancies of its officers.\n<\/p>\n
\t133. The Government Concern would not issue cheques without getting vouchers. But, in the instant case, the story of the prosecution is that cheques were issued much earlier and vouchers were obtained from the agents much later.  It is the admitted case of the prosecution that no tax was deducted at source for the whopping commission amount in crores drawn by PW15 Shanmugam, Balasubramanian and Selliappan.  It is baffling that no tax has been deducted at source by the Uptron Company a Government Undertaking, as per section 194(h) of the Income Tax Act, 1961.  This court already discarded the evidence of PW14 who allegedly met the fourth accused H.M.Pandey at Chennai when he was camping at Vellore in connection with a VVIP visit. In view of the above facts and circumstances, the court finds that the Trial Court has wrongly placed its reliance on the evidence of PW14 in the background of the commission agreement, Ex.P79 to arrive at a finding that the aforesaid charge framed as against the 8th accused Duraisamy stood established. It is held that the charge against A8 that in pursuance of the criminal conspiracy, he abetted A4 and A5 to commit misconduct by getting pecuniary advantage stood not established.\n<\/p>\n
\t134. Let us now take up the charge framed against the 9th accused S.Muthukumarasamy.  The charge is that in pursuance of the criminal conspiracy, he abetted A6 N.Haribaskar to commit the criminal misconduct by getting pecuniary advantage.  In its endeavour to establish its case, the prosecution has examined PW58 Ravindran, PW75 Murugesan, PW76 Padmanabhan. As already held, PW58 was treated as hostile by the prosecution during the course of trial. He had never stated  before the investigating officer or in the statement under section 164 of the Code of Criminal Procedure  recorded by the learned Judicial Magistrate to the effect that the 9th accused S.Muthukumarasamy used his influence with the 6th accused N.Haribaskar and orders for supply of television sets were obtained.  It is also found that he had never stated before the investigating officer or before the learned Judicial Magistrate who recorded his statement under section 164 of the Code of Criminal Procedure  that he did hand- over a sum of Rs.35,00,000\/= to  A8 Duraisamy  for the purpose of handing over the same to the 6th accused Haribaskar.\n<\/p>\n
\t135. PW75 P.Murugesan was treated as hostile by the prosecution.  He has come out with a version that he did not know as to who were PW58 Ravindran and PW76 Padmanabhan.  His evidence does not advance the case of the prosecution.\n<\/p>\n
\t136. Coming to the testimony of PW76 Padmanabhan, who was a vegetable vendor, the court has already held that he was a stock witness but, the learned Trial Judge had completely ignored such a vital fact and chose to rely upon his evidence.  Never had he stated during the course of investigation before the police that for obtaining orders for supply of television sets, he tendered money to A6 Haribaskar through A9 S.Muthukumarasamy.  The investigating officer, PW80 has categorically deposed that PW76 did not inform him during the course of investigation that Ravindran did hand over a sum of Rs.35,00,000\/= in box  to A9 Muthukumarasamy for the purpose of handing over the same to A6 Haribaskar. When the witnesses make one or more  statements, either at one stage or in two stages, the testimony of such witnesses becomes unreliable and unworthy of credence.\n<\/p>\n
\t137. The Trial Court has misdirected itself and has analysed the evidence on record in a wrong perspective and recorded the conviction as against A2 and A4 to A9.  It has, of course,  rightly recorded the order of acquittal as against the first accused.\n<\/p>\n
\t138. In the result,  Criminal Appeal No.498 of 2000 against the order of acquittal recorded by the Trial Court stands dismissed and the order of the Trial Court with respect thereto stands confirmed. Criminal Appeal Nos.454, 457, 452, 455, 456, 458 and 453 of 2000  filed by A2 and A4 to A9 respectively stand allowed and the order of the Trial Court with respect thereto stands set aside. As a consequence, they are acquitted of all the charges and are set at liberty.  The bail bonds executed by them shall stand annulled. Fine amount paid by them shall be returned to them forthwith.  A sum of Rs.50,500\/= recovered from A7 shall be returned to Raju, the  brother of A7.\n<\/p>\n
\t139. As no claim has been made on M.O.1, suitcase  recovered during the course of investigation, the same shall be confiscated to the State.\n<\/p>\n
ssk.\n<\/p>\n
To<\/p>\n
1. The II Special Judge\/
\n   XII Additional Sessions Judge,
\n   Chennai.\n<\/p>\n
2. Deputy Superintendent of Police,
\n   Crime Branch CID,
\n   Chennai 2<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Sathiyamoorthy vs The State Of Tamil Nadu on 21 August, 2009 IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 21.8.2009 Coram The Honble Mr.Justice M.JEYAPAUL Criminal Appeal Nos.452 to 458 and 498 of 2000 M.Sathiyamoorthy, I.A.S. Appellant in C.A.No.452\/2000 S.Muthukumaraswamy Appellant in C.A.No.453\/2000 T.M.Selvaganapathy Appellant in C.A.No.454\/2000 N.Haribhaskar Appellant in C.A.No.455\/2000 […]<\/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-185763","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Sathiyamoorthy vs The State Of Tamil Nadu on 21 August, 2009 - 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\/m-sathiyamoorthy-vs-the-state-of-tamil-nadu-on-21-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Sathiyamoorthy vs The State Of Tamil Nadu on 21 August, 2009 - 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