{"id":421,"date":"2010-03-19T00:00:00","date_gmt":"2010-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sankaralingam-vs-deputy-superintendent-of-police-on-19-march-2010"},"modified":"2017-03-02T12:40:55","modified_gmt":"2017-03-02T07:10:55","slug":"sankaralingam-vs-deputy-superintendent-of-police-on-19-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sankaralingam-vs-deputy-superintendent-of-police-on-19-march-2010","title":{"rendered":"Sankaralingam vs Deputy Superintendent Of Police on 19 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Sankaralingam vs Deputy Superintendent Of Police on 19 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 19\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nCrl.A.(MD)No.82 of 2005\nand\nM.P.(MD)No.1 of 2009\n\nSankaralingam\n\t\t\t\t\t\t...\tAppellant\/\n\t\t\t\t\t\t\tAccused No.1\n\nVs.\n\nDeputy Superintendent of Police,\n(V & AC) Tirunelveli.\n\t\t\t\t\t\t...\tRespondent\/\n\t\t\t\t\t\t\tComplainant\n\n\nPRAYER\n\nThe Appeal is filed under Section 374(2) of Criminal Procedure Code,\nagainst the conviction and sentence dated 31.01.2005 made in Special C.No.1 of\n1997 on the file of the learned Chief Judicial Magistrate cum Special Judge,\nTirunelveli.\n\n!For Appellant\t  ...  Mr.H.Arumugam for\n\t\t       Mrs.Uma Ramanathan\n^For Respondent\t  ...  Mr.L.Murugan\n\t\t       G.A.(Crl.Side)\n\n:JUDGMENT\n<\/pre>\n
\tThe appeal is filed against the conviction and sentence dated 31.01.2005
\nmade in Special C.C.No.1 of 1997 on the file of the learned Chief Judicial
\nMagistrate cum Special Judge, Tirunelveli.  The first accused is the appellant.
\nThe appellant was charged for an offence under Section 7 and 13(2) r\/w. 13(1)(d)
\nof the Prevention of Corruption Act.  The appellant was a public servant and was
\nworking as Thasildar at Radhapuram, Tirunelveli District.\n<\/p>\n
\t2.The brief facts of the prosecution case is as follows:\n<\/p>\n
\tOne Subbaiya, who was the resident of Keeraikaran Thattu, applied for a
\nsolvency certificate on 25.04.1995 at Taluk office, Radhapuram.  However, he
\ngave an application only on 10.05.1995 and paid the necessary fee and the same
\nwas processed by one George (second accused) and on his direction the de facto
\ncomplainant met the Village Administrative Officer and also the Revenue
\nInspector and obtained necessary certificates and resubmitted the application on
\n15.05.1995. He met the appellant and requested for the solvency certificate.
\nAccording to the de facto complainant the appellant demanded Rs.1,000\/- on
\n16.05.1995 as illegal gratification.  Again he met the appellant on 18.05.1995
\nat his house and the appellant demanded Rs.500\/- as illegal gratification and
\nRs.200\/- towards Flag Day donation.  The de-facto complainant not willing to pay
\nthe bribery went to the Vigilance and Anti Corruption Office, Palayamkottai and
\nmet the Deputy Superintendent of Police and gave a complaint. On the same day
\nthe Deputy Superintendent of Police called one Mohan and Nagarajan, who are the
\ngazetted rank officers and decided to prepare a trap proceeding.  The Deputy
\nSuperintendent of Police explained the trap proceedings to the de-facto
\ncomplainant and to the two witnesses.  The de-facto complainant produced seven
\nOne hundred rupees currency notes.  The pre-trap procedures were conducted and
\nthe Deputy Superintendent of Police explained the phenolphthalein test to the
\nwitnesses and to the de-facto complainant.  After following the formalities, the
\ncurrencies were given back to the de-facto complainant and he was directed to go
\nalong with the said Nagarajan, an independent witness to the Thasildar’s Office.\n<\/p>\n
\t3.The de-facto complainant and the witness Nagarajan went to the
\nappellant’s office.  The de-facto complainant went to the appellant’s room and
\ntendered the tainted money.  The appellant directed the de facto complainant to
\nhand over the same to the Clerk viz., George and accordingly, the money was put
\ninto a cover and was handed over to the said George.  He took Rs.200\/- and
\ndirected the de facto complainant to pay the same to the Clerk in charge of Flag
\nDay donations and obtain a receipt.  The said George went inside the Thasildar’s
\noffice and gave him the cover which contained the tainted money. He brought the
\ncertificate and gave it to the de facto complainant.\n<\/p>\n
\t4.After giving the illegal gratification, the de facto complainant
\nsignalled and the DAVC team headed by the Deputy Superintendent of Police
\nentered the office and confronted the appellant.  The tainted money was produced
\nby the appellant from a drawer on the side of his table.  The post
\nphenolphthalein test was conducted and the appellants left hand turned positive
\nfor the said test and the said George also found dealt with the tainted money.
\nThe tainted money was seized under magazor and the appellant and George were
\nexplained about the offences and were arrested.\n<\/p>\n
\t5.The Deputy Superintendent of Police investigated and recorded the
\nstatements of the witnesses and on completion of the investigation laid the
\ncharge sheet against the appellant and the said George for the offence stated
\nabove.\n<\/p>\n
\t6.The Chief Judicial Magistrate who took the case in Special C.C.No.1 of
\n1997 framed charges and on denial of the charges the Trial was conducted.  In
\norder to prove the prosecution case, 15 witnesses were examined and 20 exhibits
\nwere produced and 20 material objects were marked.\n<\/p>\n
\t7.On the basis of the oral and documentary evidences and more particularly
\nrelying on the trap proceedings and recovery of the tainted money and also on
\nrelying on the witness for trap the learned Chief Judicial Magistrate found the
\nappellant guilty under Section 7 and 13(2) r\/w. 13(1)(d) of the Prevention of
\nCorruption Act and convicted him one year R.I. of each offence and a fine of
\nRs.1000\/- with default sentence.  The other accused, the said George was
\nacquitted .\n<\/p>\n
\t8.Aggrieved by the conviction and sentence the appellant has preferred the
\npresent appeal on various grounds.  Pending appeal, the appellant died and his
\nson had filed an application in M.P.(MD)No.1 of 2009 to permit him to proceed
\nwith the appeal and the said application was allowed.  However, in this appeal
\nthe deceased appellant is referred as appellant.\n<\/p>\n
\t9.Mr.H.Arumugam, learned counsel for the appellant would submit that the
\nde fact complainant had a motive of vengeance against the appellant and he has
\nfalsely implicated the appellant.  The learned counsel pointed out that there
\nare discrepancies in the evidence of the  de fact complainant and P.W.3 the said
\nNagarajan, who was accompanying the de fact complainant in trap proceedings.
\nThe learned counsel pointed out that the entire prosecution case is based on the
\nevidence of P.W.2 the  de fact complainant and P.W.3 the witness for trap
\nproceedings and once there are contradiction in their evidence both the
\nevidences has to be disregarded.\n<\/p>\n
\t10.The learned counsel pointed out that there is no corroborative evidence
\nfor the alleged demand by the appellant.  The learned counsel relied on 2010(1)
\nMLJ (Cri.) 541 (A.V.Vijayarangan and others Vs. State Rep.by Inspector of
\nPolice, Vigilance and Anti Corruption, Salem) wherein this Court has held as<\/p>\n
“17.Regarding the alleged demand made by A1 and the indirect demand made by A2
\non 02.09.1989 at about 5.30 p.m.in the guest house of Indian Cements Factor,
\nthere is no other evidence excepting the oral testimony of P.W.2.  The testimony
\nof P.W.2 is also found to contradict with Exhibit P.2 complaint and his
\nstatement recorded under Section 161 Cr.P.C.  The veracity of P.W.2 in this
\nregard has become more questionable in the light of the above cited evidence of
\nP.Ws.9 and 13.  Therefore, this Court has to come to a necessary conclusion that
\nthe alleged demand made by A1, who was supported by A2 as per the evidence of
\nP.W.2 is highly improbable.”\n<\/p>\n
\t11.The learned counsel also pointed out that if the demand is not proved a
\nserious doubts arises against the prosecution case and relied on another
\ndecision reported 2009(4) MLJ (Criminal) 335 SC (State of Maharastra Vs.
\nDnyaneshwar Laxman Rao Wankhede) wherein the Supreme Court has held as<\/p>\n
“16.Indisputably, the demand of illegal gratification is a sine qua non for
\nconstitution of an offence under the provisions of the Act.  For arriving at the
\nconclusion as to whether all the ingredients of an offence, viz., demand,
\nacceptance and recovery of the amount of illegal gratification have been
\nsatisfied or not, the Court must take into consideration the facts and
\ncircumstance brought on the record in their entirety.  For the said purpose,
\nindisputably, the presumptive evidence, as is laid down in Section 20 of the
\nAct, must also be taken into consideration but then in respect thereof, it is
\ntrite, the standard of burden of proof on the accused vis-a-vis the standard of
\nburden of proof on the prosecution would different.  Before, however, the
\naccused is called upon to explain as to how the amount in question was found in
\nhis possession, the foundational facts must be established by the prosecution.
\nEven while invoking the provisions of Section 20 of the Act, the Court is
\nrequired to consider the explanation offered by the accused, if any, only on the
\ntouchstone of preponderance of probability and not on the touchstone of proof
\nbeyond all reasonable doubt.”\n<\/p>\n
\t12.The learned counsel also relied on 2008 Crl.L.J. 1825 (Anand Parkash
\nand another Vs. State of Haryana) wherein the Punjab and Haryana High Court has
\nobserved the ruling of the Apex Court as<\/p>\n
“mere recovery of the currency notes and positive result of the phenolphthalein
\ntest is not enough to establish the guilty of the appellant on the basis of
\nperfunctory nature of materials and prevaricating type of evidence.”\n<\/p>\n
\t13.The learned counsel also relied on AIR 1992 SC 665 (Som Parkash Vs.
\nState of Punjab) wherein the Supreme Court has held as<\/p>\n
“…We agree with the learned counsel for the appellant that in the face of the
\nfinding that the witnesses who formed part of the raiding party were not
\nindependent and the evidence regarding handing over money to the appellant being
\nunbelievable, the conviction of the appellant cannot be sustained.  The guilty
\nof the appellant has not been proved beyond reasonable doubt and as such the
\nbenefit must go to him.”\n<\/p>\n
\t14.The learned counsel relied on 2008(1) TNLR 224(S.D.Amalraj Vs. State
\nthrough Inspector of Police) wherein this Court has held that when the accused
\nhas already passed an order to issue licence, nothing remains to be done
\nthereafter and therefore, the payment of bribe after completion of the official
\nfavour is a serious lacuna in the prosecution case.\n<\/p>\n
\t15.Mr.Murugan, learned Government Advocate (Crl.side) submitted that the
\nappellant was found receiving the tainted money and the said test turned
\npositive and it is a case of trap and the prosecution has proved the case beyond
\nreasonable doubt.\n<\/p>\n
\t16.Heard both the sides and perused the materials available on record.\n<\/p>\n
\t17.According to the de fact complainant, there was a demand by the
\nappellant on 16.05.1995.  As rightly pointed out by the learned counsel for the
\nappellant except the evidence of P.W.2 there is no other witness to speak about
\nthe demand.  According to him, he met the appellant on 18.05.1995 at his house
\nand that day also he demanded Rs.500\/- as bribe and Rs.200\/- for Flag Day
\ndonation.  On 19.05.1995, he went to the office of P.W.12, the Deputy
\nSuperintendent of Police and gave a complaint and he has also taken along with
\nhim the demanded Rs.700\/-.  One Mohan and Nagarajan were requested to be the
\ntrap proceedings and the said Nagarajan alone was sent along with the de fact
\ncomplainant to tender the bribe to the appellant.\n<\/p>\n
\t18.According to the prosecution, the de fact complainant met the appellant
\nin his office and on tendering the money the appellant directed him to give the
\nmoney to the second accused and accordingly, he went to the seat of the second
\naccused and tendered the money.  P.W.3 would state that he was watching the
\nentire proceedings and the second accused directed the de fact complainant to
\nget a paper cover and put the money inside the cover.  It is only the second
\naccused who received the tainted money and took out Rs.200\/- and gave it the de-
\nfacto complainant to tender the same to P.W.6, Sudalaimuthu towards Flag day
\ndonation.  According to P.W.3, the second accused took the cover to the
\nappellant and came back with the insolvency certificate which was given to the
\nde fact complainant.  However, when the de fact complainant was examined in
\nchief, he would state that he gave the money to the appellant and after receipt
\nof the tainted money the appellant took out Rs.200\/- with a direction to the de
\nfact complainant to pay for the Flag day donation.  He had totally exonerated
\nthe said George from the allegations.  In other words he had chosen to be a
\npartisan witness.\n<\/p>\n
\t19.As far as P.W.3 is concerned he was standing outside the office of the
\nThasildar and he is not an eye witness for handing over the money by the de fact
\ncomplainant.  The evidence of P.W.2 is against the version of P.W.3.  The
\nmaterial contradiction is so evident which falsifies the evidence of P.W.2.  The
\nonly circumstances against the appellant is that his left hand was positive for
\nthe test and he had took out a cover which contained the tainted money from the
\nside drawer of the table.    The mere production of a cover with tainted money
\nwithout direct evidence of receipt the money cannot be relied on.\n<\/p>\n
\t20.In 2000(5) SCC 21 (Meena (Smt) W\/o Balwant Hemke Vs. State of
\nMaharastra) the Supreme Court has held as follows:\n<\/p>\n
“…Mere recovery of the currency note of Rs.20 denomination, and that too lying
\non the pad on the table, by itself cannot be held to be proper or sufficient
\nproof of the acceptance of the bribe, in the peculiar circumstances of this case
\nwhich lend also credence to the case of the appellant that it fell on the table
\nin the process of the appellant pushing it away with her hands when attempted to
\nbe thrust into her hands by P.W.1.  The results of phenolphthalein test, viewed
\nin the context that the appellant could have also come into contact with the
\ncurrency note when she pushed it away with her hands cannot be itself be
\nconsidered to be of any relevance to prove that the appellant really accepted
\nthe bribe amount. …”\n<\/p>\n
\t21.In 2000(5) SCC 21 : (2000 Cri L.J. 2273) it was held that mere recovery
\nof the currency notes and positive result of the phenolphthalein test is not
\nenough to establish the guilty of the appellant on the basis of perfunctory
\nnature of materials and prevaricating type of evidence.\n<\/p>\n
\t22.According to P.W.3, the money was handed over to the said George and
\nwho took out Rs.200\/- for Flag day donation and gave it to the de facto
\ncomplainant and there after had taken the tainted money to the appellant.  What
\ntranspired inside the office of the appellant was not spoken by any witness.
\nBut according to the de facto complainant, the tainted money was received by the
\nappellant directly and not by the said George. His evidence is unreliable. As
\nstated earlier the only circumstances against the appellant is that the left
\nhand of the appellant was positive for the test and he produced the cover.  The
\nmere production of the tainted money and positive result of the phenolphthalein
\ntest is not enough to establish the guilty of the appellant. It is well settled
\nlaw that demand of illegal gratification is sine qua non for constitution of the
\noffences under Prevention of Corruption Act and the prosecution has to prove the
\ncase beyond reasonable doubt and only one circumstance is not enough to fix the
\nguilt of the accused.  Therefore, the Trial Court is wrong in holding that the
\nprosecution has proved the case beyond reasonable doubt.\n<\/p>\n
\tIn the result, appeal is allowed and the conviction and sentence is set
\naside.  Consequently, connected M.P. is closed.\n<\/p>\n
nbj<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sankaralingam vs Deputy Superintendent Of Police on 19 March, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19\/03\/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Crl.A.(MD)No.82 of 2005 and M.P.(MD)No.1 of 2009 Sankaralingam … Appellant\/ Accused No.1 Vs. Deputy Superintendent of Police, (V & AC) Tirunelveli. … Respondent\/ Complainant PRAYER The […]<\/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-421","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSankaralingam vs Deputy Superintendent Of Police on 19 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sankaralingam-vs-deputy-superintendent-of-police-on-19-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sankaralingam vs Deputy Superintendent Of Police on 19 March, 2010 - 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