Full Judgment
JUDGMENT
1. This appeal challenges the order of acquittal dated 11.12.2008 in Special Case No.5/2004 on the file of the Chief Judicial Magistrate-cum-Special Judge, Nagercoil.
2.Following is the brief account of the prosecution case :- [a] P.W.2 is a Contractor. He had already received a solvency certificate for Rs.5,00,000/- from Agastheeswaram Taluk Office on 27.01.2001 and he had completed the work of constructing a library building. In order to register the solvency certificate with the Public Works Department, Nagercoil, he paid a sum of Rs.540/- through chalan and also gave application form on 23.12.2002. The authorities of Public Works Department, after receipt of the application along with solvency certificate, forwarded the solvency certificate to Agastheeswaram Tahsildar, the ascertain the genuineness of the certificate and the communication was handed over to P.W.2. On 23.12.2002 at about 5.00 p.m., he went to Agastheeswaram Taluk office and gave the letter to the first accused. He received the letter and asked him to come on 26.12.2002. Accordingly P.W.2 met first accused on 26.12.2002 and he demanded a sum of Rs.2,000/- for verification of solvency certificate. P.W.2 told that that he could not pay that much of amount. On 2.1.2003 again P.W.2 met first accused in Taluk office and reiterated that he could not pay Rs.2,000/-. Hence, the first accused asked atleast Rs.1000/- may be paid, then only he could give the report, otherwise, the letter would be rejected. So, P.W.2 told him that he would come on 3.1.2003. He thought that why he should pay bribe of Rs.1000/- for discharge of official duties. He went to the vigilance and anti corruption wing at Nagercoil, taking Rs.1000/- and lodged Ex.P.2 complaint with the Inspector of Police P.W.15.
[b] On receipt of complaint, P.W.15 registered the case and lodged F.I.R., Ex.P.25 and sent the same to the Court and a copy to the Deputy Superintendent of Police. He examined P.W.2 and recorded his statement. He sent requisitions to Superintending Engineer, Electricity Board, Nagercoil and Deputy Director of Fisheries to send officials belonging to B and C categories to be witnesses. Accordingly, P.W.3 Supervisor in Fisheries Department and one Radhakrishnan Junior Engineer from the Electricity Board, Nagercoil, came at 1.30 p.m. on 3.1.2003. He gave copies of F.I.R to witnesses and asked them to read it. P.W.2 confirmed that the contents were true. P.W.2 produced Rs.1000/- in two 500 rupees notes. P.W.15 directed a constable to prepare sodium carbonate solution and in the solution he asked Radhakrishnan to dip his fingers. He dipped. But there was no change in colour. Then he asked the witness to apply phenolphthalein powder on both the side of currency notes. He did so. Then he asked Radhakrishnan to take the notes and accordingly he took and counted it. Thereafter, another Sodium carbonate solution was prepared and right hand fingers of Radhakrishnan was made to dip in the solution which turned to pink. P.W.15 explained the importance of the phenolphthalein test to the witnesses. He asked P.W.2 to keep the currency notes in his pant pocket. He also told him to go to Agastheeswaram Taluk Office and to meet first accused and only if he demanded money he had to pay it and in case if the money was received by the first accused P.W.1 had to come out and show signal by change his wrist watch from left hand to right hand. He also directed P.W.3 to accompany P.W.2. The phenolphthalein solution was destroyed. A mahazar Ex.P.4 was also prepared narrating the above said events. On 3.1.2003 at about 4.15 p.m. in the Government jeep P.W.15 alongwith police party P.W.2 and other witnesses proceeded to Agastheeswaram Taluk office and stopped the vehicle near Singar Lodge and asked P.W.2 and P.W.3 to go to the office and P.W.1 and others were waiting in a hidden place.
[c] Both P.Ws.2 and 3 entered into the office at 4.35 p.m. and enquired about the first accused. They were informed that he had gone to Collector office and he would come within a short time. At about 6.00 p.m. first accused came in a motor cycle and sat in his seat. P.W.2 with P.W.3 met him. He asked him whether he brought money. P.W.2 gave the amount to the first accused, who received the amount with his right hand and counted it in his two hands and put them in his left front pant packet and he gave a cover to P.W.2. Afterwards, both of them came out and P.W.2 showed pre-arranged signal by changing his wrist watch from left hand to right hand. On seeing it P.W.15 and Police party rushed into the Taluk Office. At that time, first accused attempted to flee and hence they chased them and nabbed him. He was brought inside the office and was enquired by the Inspector.
[d] In a glass tumbler sodium carbonate solution was prepared and first accused was directed to dip is right hand fingers and he did so. The sodium carbonate solution turned to pink colour. Again, in another glass tumbler sodium carbonate solution was prepared and the first accused was asked to dip his left hand fingers. When he dipped, it also turned pink colour. When the Inspector enquired him about the money he told that on seeing the police party he ran out and gave the money to the second accused and thereafter he was caught hold by the police party.
[e] The second accused was not there. A dhothi was secured by the inspector who gave it to 1st accused and after wearing it, he gave his pant. In a tumbler, sodium carbonate solution was prepared. The pant pocket was dipped. The solution turned to pink colour. The Inspector got the letter from P.W.2 given by A1. A1 produced back file relating to the said letter to the Inspector. The sample of solutions were packed, sealed and seal of Vigilance and Anti Corruption was put on them, over which Inspector, P.W.2 and P.W.3 signed. Police constables were sent to the residence of A2 who is the Deputy Tahsildar and he was brought to taluk office at about 8.00 p.m. On enquiry A2 told that he did not know about the money. The Inspector directed to prepare sodium carbonate solution and asked the second accused to dip his right hand fingers. He dipped but there was no change. In another tumbler of sodium carbonate solution, the left hand fingers of second accused were dipped. It did not show any colour change. A2 was given another shirt and in the shirt worn by him was taken and its left side pocket was dipped into another sodium carbonate solution and there was no change. A dhoti was obtained by the inspector which was given to A2 and he gave his pant. In another sodium carbonate solution, the hidden pocket on the right side of the pant was dipped and the solution turned to pink colour. When the left side pocket of pant was dipped in another tumbler of sodium carbonate solution, there was no change. Samples were taken from the above 4 solutions and Vigilance and Anti Corruption office seal was put and then P.Ws.2, 3 and 15 signed over it. Both the accused were arrested by P.W.15. A Mahazar was also prepared for recovery of the pant, shirt, letter and back file in Ex.P.6.
[f] P.W.15 drew a sketch Ex.P.26. He sent previous intimation to the Chief Judicial Magistrate Court informing the house search to be made by him under Ex.P.27. The residence of both the accused were searched by police, but nothing was seized. He gave requisition Ex.P.28 to the Court to add section 7 r/w 13(2) r/w 13(1)(d) of P.C. Act. He sent the accused for judicial custody and the case properties to the Court under Form-95. For further investigation he handed over the records to P.W.16. Since the second accused did not say anything about the money, it was not seized. P.W.16 examined the revenue officials and recorded their statements. He gave requisition to the Court to send the case properties for chemical analysis. He sent letter to the Director of Anti Corruption to get sanction order to prosecute the accused.
[g] His next incumbent P.W.16 got the sanction order Ex.P.1 and recorded statement of P.W.1 the District Collector of Kanniyakumari. He also examined the Scientific Assistant and the Head Clerk of the Chief Judicial Magistrate Court, Nagercoil and recorded their statements. On completion of investigation, he laid charge sheet against the accused.
3. Both the accused were questioned about prosecution evidence u/s.313 Cr.P.C as regards incriminating materials available in the prosecution evidence. They denied complicity to the offence. No witness was examined and no document was exhibited on the accused side. On consideration of the facts and other materials on record, the learned Special Judge-cum-Chief Judicial Magistrate, Nagercoil convicted 1st accused and sentenced him, and acquitted the respondent/2nd accused from the charges. Hence the State has preferred the present appeal against 2nd accused.
4.The point for consideration is, whether the prosecution has brought home the guilt of the accused beyond reasonable doubt?. Point:-
5. P.W.2 turned hostile to the prosecution. He would say anything against both the accused. In his chief examination he would say the he went inside the office with P.W.3. On seeing him, first accused gave a cover and P.W.2 tendered money but he refused and hence he placed the money on his table and came out. In his cross examination he says that it is incorrect to state that he has mentioned in his complaint and police enquiry that first accused demanded Rs.2,000/- for which he refused and therefore he demanded Rs.1,000/-. He did not indicate this respondent. In his evidence it is not stated how the respondent is is involved in the offence. Even it is not the prosecution case that the respondent demanded and received money from P.W.2.
6. As far as this respondent is concerned, it is significant to note that neither demand of bribe nor receipt of the same has been spoken by P.W.2. P.W.3 also has not stated anything about the demand of bribe or receipt of money. The only evidence is available against the respondent is that when the hidden pocket of his pant was dipped into sodium carbonate solution, it turned to pink. Excepting this, no other evidence is forthcoming adverse to him. The phenolphthalein test for the fingers of his both hands, shirt pocket and pant pockets proved negative. No material is available to show that the respondent was in possession of the bribe money.
7. In this context it is to be noted that the positive result of phenolphthalein test alone will not suffice but there shall be proof of demand and receipt of bribe money by the accused. The Supreme Court in 2004 Crl.L.J.1412 [State of Andhra Pradesh v. Venkateswara Rao] their Lordships have held that testing of hand of the accused tested positive for having handled tainted money would not lead to an irresistible conclusion that it was received by accused as bribe money in view of explanation given by him that money in question was kept in advance by complainant before his arrival in his house and on being asked by Investigating Officer he brought money and because of his handling he came in contact with phenolphthalein powder and in the said circumstances, the order of acquittal was proper.
8. In 2010(3) M.L.J.(Crl.) 132 (SC) [Banarsi Dass v. State of Haryana] the Honourable Supreme Court has held that mere recovery of tainted money from the accused by itself will not constitute the offence in the absence of substantive evidence for demand of money and voluntary acceptance of the same.
9. P.W.3, in his cross examination would say that the Inspector asked second accused whether he received money, for which he replied that he neither demanded nor received any money from them. Immediately the said statement was recorded by the Inspector in which both P.Ws.2 and 3 attested and the Inspector also put his signature. But the said statement was not produced before the Court.
10. As adverted to supra, neither the demand nor receipt of bribe money is proved as against the respondent. Merely because the result was positive in the phenolphthalein test with regard to the hidden pocket in the pant of second accused, he could not be found guilty. The prosecution has miserably failed to prove the charges against the respondent and the acquittal order recorded by the trial Court as far as this respondent is sustainable and there is no valid ground available in this appeal to find the respondent guilty and to interfere with the conclusion of the trial Court. The appeal is liable to be dismissed. This point is answered accordingly.
11. In the result, the Criminal Appeal is dismissed.