R.Sasidaran @ Sasi Vs. The State Rep By - Court Judgment

SooperKanoon Citationsooperkanoon.com/52363
CourtChennai High Court
Decided OnJun-11-2015
JudgeS.Nagamuthu
AppellantR.Sasidaran @ Sasi
RespondentThe State Rep By
Excerpt:
before the madurai bench of madras high court dated:11. 06.2015 coram the honourable mr.justice s.nagamuthu criminal appeal (md).no.560 of 2008 r.sasidaran @ sasi : appellant vs. the state rep by the inspector of police, vigilance and anti corruption, nagercoil, crime no.1 of 2003. : respondent prayer appeal is filed under section 374 of the code of criminal procedure to set aside the conviction and sentence imposed on the appellant by judgment dated 11.12.2008 passed by the special judge cum chief judicial magistrate, nagercoil, kanyakumari district, in special case no.5 of 2004, on the file of the special judge cum judicial magistrate nagercoil, kanyakumari district. !for appellant : mr.r.shanmuga sundaram senior counsel for mr.s.ravi ^for respondent : mr.c.mayil vahana rajendran additional public prosecutor :judgment ************* the appellant is the first accused in special case no.5 of 2004, on the file of the learned special judge cum chief judicial magistrate, nagercoil, kanyakumari district, under the prevention of corruption act cases. he stood charged for the offences punishable under sections 7 and 13(2) r/w section 13(1)(d) of the prevention of corruption act, 1988, [for brevity, "the act"].. the second accused, mr.a.panneerselvam, stood charged for the offence punishable under section 13(2) r/w section 201 of the indian penal code. the trial court, by judgment dated 11.12.2008, acquitted the second accused, but convicted the appellant herein under sections 7 and 13(2) r/w section 13(1)(d) of the act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of rs.2,500/-, in default to undergo rigorous imprisonment for three months for each offence. challenging the said conviction and sentence, the appellant has come up with the present criminal appeal.2. the case of the prosecution, in brief, is as follows:- pw-2 is a resident of peruvilai village. he is a contractor by profession. for the said purpose, he had obtained a solvency certificate from the tahsildar, agastheeswaram. he had made an application to the public works department for registering as a contractor. the solvency certificate produced by him to the public works department was in turn referred to the taluk office, agastheeswaram, for verification. the appellant herein was b-4 clerk in the said office during the relevant period. the said file relating to the verification was dealt with by the appellant. it is alleged that on 02.01.2003, when pw-2 had gone to the taluk office and met the appellant, in order to clear the file, he demanded illegal gratification of rs.1,000/- from pw-2. he was not in a position to pay the bribe. thereafter, he returned to his house and on 03.01.2003, he went to the vigilance and anti corruption police station and made a complaint. 2.1. pw-15, the inspector of police, attached to the vigilance and anti corruption police station, has stated that when he was in the police station, at 10.30 am, pw-2 appeared before him and lodged a oral complaint. he reduced the same into writing, which is ex-p2. based on the same, he registered a case in crime no.1 of 2003, under section 7 of the act against the appellant. ex-p15 is the first information report. he forwarded ex-p1 and ex-p15 to the court and took up the case for investigation. 2.2. he decided to lay a trap for the appellant. he made a request to the superintending engineer of the tamil nadu electricity board to send an official to be a witness for the trap proceedings. accordingly, one mr.radhakrishnan was sent for the said purpose. simultaneously, he made a request to the fisheries department to send another official for the said purpose. accordingly, from the said office, pw-3 was sent. pw-15 explained to the witnesses about the case and his plan to lay a trap. with the help of a police constable, he made a demonstration of phenolphthalein test. then, he received a sum of rs.1,000/- from pw-2, tainted the same with phenolphthalein powder and handed over the same to him. thereafter, he prepared a mahazer in the presence of pw-3 and another witness. then, he took pw-2, pw-3 and the other witnesses to the office of the appellant with instructions to pw-2 and pw-3 to go into the office and to hand over the said currency notes, viz., a five hundred rupee note and five hundred rupees notes to the appellant, if demanded, as illegal gratification. pw-15 and the other officials were hiding outside and pw-2 and pw-3 entered into the office. 2.3. at about 04.15 pm, according to the case of the prosecution, when pw-2 and pw-3 entered into the office, the accused was not there. they were informed that he had gone to the office of the district collector. pw-2 and pw-3 were waiting for a while. then, the appellant came to the office. pw-2 went near him and enquired about the verification of the solvency certificate. it is alleged that at that time, the appellant asked him as to whether he had brought the money. pw-2, immediately, took out the currency notes from his pocket and gave the same to the appellant. on receiving the said amount, the appellant gave the certificate to pw-2. then, pw-2 and pw-3 came out of the office and as per the plan, pw-2 made a signal. on receipt of such signal, pw-15 and the other officials rushed into the office of the appellant. on seeing the police officials, the appellant became restless. thereafter, the accused was asked about the tainted money, which was stated to have been given by pw-2 to him. but, the tainted money was not in his possession. 2.4. it is the further case of the prosecution that after pw-2 and pw-3 had gone out of the office, suspecting something untoward, the appellant had handed over the tainted currency notes to the second accused, the then deputy tahsildar. the second accused had vanished away from the office with the said tainted currency notes. then, the phenolphthalein test was conducted, which turned positive. thereafter, the file relating to the solvency certificate was recovered. but, the currency notes, which were allegedly given to the appellant, were not in his possession. then, the second accused was arrested from elsewhere, from whom also, the money was not recovered. then pw-15, continued the investigation, examined the witnesses, got the chemical analysis report in respect of the sodium carbonate solution, collected records and finally, laid the charge sheet against the appellant.3. based on the above materials, the trial court framed appropriate charges, as detailed in the first paragraph of this judgment. when the appellant was questioned in respect of the charges, he pleaded innocence. in order to prove the charges, the prosecution examined as many as 17 witnesses and 28 documents were exhibited, besides four material objects. out of the said witnesses, pw-1, who was expected to speak about the demand as well as the acceptance of demand of illegal gratification and about the trap proceedings, on 03.01.2003, has turned hostile and he has not supported the case of the prosecution in any manner. pw-3 has vividly spoken about the trap proceedings, in which he has stated that the appellant demanded rs.1,000/- and received the same from pw-2. pw-4 is the headquarters deputy tahsildar, who has spoken about the file relating to the solvency certificate and the other connected records seized at the time of occurrence. pw-5 is the record clerk, who has also spoken about the said file. pw-6 is the then tahsildar, who has also spoken about the said fact. pw-7 is the typist, who has spoken about the typing of the order of the solvency certificate prepared by the appellant. pw-8, who is an assistant, has spoken about the maintenance of the attendance register. pw-9 is the junior drafting officer, who has spoken about the letter forwarded by him regarding the solvency certificate. pw-10 is the head constable, who has spoken about the arrest of the accused. pw-13 is the head clerk of the court, who forwarded the material objects for chemical analysis. pw-15 is the officer, who laid the trap. pw-16 has spoken about the chemical analysis. pw-17 is the investigating officer.4. when the trial court examined the appellant under section 313 of the code of criminal procedure in respect of the incriminating evidences available against him, he denied the same as false. however, he did not choose to examine any witness nor to exhibit any document. the first accused, in his statement, has stated that it is true that he dealt with the file relating to the verification of the solvency certificate of pw-2. according to him, on 10.01.2003, he went to the office of the district collector to discuss about the forthcoming law officers' meeting. on the day of the occurrence, at about 06.00 pm, he returned to the taluk office. on the same day, he had cleared the file and forwarded the same to the headquarters deputy tahsildar for further proceedings. while he was sitting in the office, the police officials came and arrested him and according to him, he did not receive the tainted money and he did not hand over the same to the second accused.5. having considered all the above materials, the trial court acquitted the second accused and convicted the appellant, as detailed in the first paragraph of this judgment and punished him accordingly. that is how, the appellant is now before this court with this criminal appeal.6. i have heard the learned senior counsel appearing for the appellant, the learned additional public prosecutor appearing for the respondent and also perused the records carefully.7. the learned senior counsel for the appellant would submit that so far as the alleged demand for illegal gratification is concerned, absolutely, there is no evidence. as rightly pointed out by the learned senior counsel, the prosecution has to rely on only the evidence of pw-2 in this regard. but, unfortunately, pw-2 has turned hostile and he has not supported the case of the prosecution in any manner. thus, absolutely, there is no evidence to prove that the appellant made any demand of illegal gratification on 02.01.2003.8. now, turning to the trap proceedings, since pw-2 has turned hostile, the prosecution mainly relies on the evidence of pw-3. according to pw-3, he was not aware of the contents of ex-p1, the complaint. it is his further evidence that he did not give the currency notes to pw-15 for the purpose of trap. he has further stated that pw-15 inserted the currency notes into his pocket. he has further stated that he did not know the contents of mahazer. he has further stated that when he along with pw-2 went to the office of the appellant, as instructed by pw-15, the appellant was not there. it is so stated by pw-2 also. he returned by about 06.15 pm. according to pw-2, the appellant did not make any demand of illegal gratification. he has further stated that as instructed by the police, when he attempted to give the money, the appellant declined to receive the same. therefore, he kept the money on the table, returned from the office and made the signal. since he has not stated anything about the demand and acceptance of bribe, he has been treated as hostile. but, pw-3 has stated that the appellant had received the money and kept the same in his pocket. but, unfortunately, during the trap proceedings, nothing was recovered from him. though it is the case of the prosecution that the tainted money was given by the first accused to the second accused, absolutely, there is no evidence at all to prove this fact. at the time of trap, the second accused was also not found anywhere in the office. however, the second accused was arrested from his house at 08.00 pm on the same day. he has been acquitted by the trial court, against which there is no appeal preferred by the state. even after the occurrence, the tainted currency notes stated to have been given by pw-2 to the appellant and in turn handed over to the second accused have not been recovered at all. the said currency notes have not seen the light of the day, for which also, there is no investigation done.9. the learned additional public prosecutor would submit that the phenolphthalein test was conducted, which turned positive. the prosecution cannot make any reliance on the phenolphthalein test conducted in respect of the second accused, because he has been acquitted by the trial court and there is no appeal filed by the state against his acquittal. therefore, the learned additional public prosecutor could make reliance on the result of the phenolphthalein test conducted on the fingers of the appellant. it is true that the phenolphthalein test conducted in respect of the appellant turned positive. but, this evidence cannot be treated as substantive evidence so as to come to the irresistible conclusion that the appellant demanded illegal gratification and accepted the same. in the absence of the evidence that the appellant had demanded bribe, received the same and handed over the currency notes to the second accused and in the absence of the recovery of currency notes either from the appellant or from the second accused and in the light of the fact that the second accused has been acquitted by the trial court, i am of the considered view that it is very difficult to believe the case of the prosecution in respect of the occurrence on 03.01.2003. though the evidence of pw-3 has made some foundation for a strong suspicion against the appellant that he would have received the amount, such suspicion shall not take the place of proof. since the punishment is so stringent, it is required that the prosecution should prove its case beyond all reasonable doubts. in this case, as i have already pointed out, since there are lot of flaws in the case of the prosecution and since absolutely, there is no proof that the appellant had demanded and accepted the illegal gratification and since there was no recovery of the tainted currency notes at all either from the appellant or from the second accused, it is highly unsafe to place reliance on the sole testimony of pw-3 to confirm the conviction and sentence. thus, i hold that the appellant is entitled for the benefit of doubt and consequently entitled for acquittal.10. in the result, the conviction and sentence imposed on the appellant, by judgment dated 11.12.2008, made in special case no.5 of 2004, on the file of the learned special judge cum chief judicial magistrate, nagercoil, kanyakumari district, is set aside and the appellant is acquitted. the criminal appeal is allowed. fine amount, if any, paid by the appellant shall be refunded to him. 11.06.2015 index : yes/no internet : yes/no nb to 1.the special judge cum chief judicial magistrate, nagercoil, kanyakumari district. 2.the public prosecutor, madurai bench of madras high court, madurai. 3.the inspector of police, vigilance and anti corruption, nagercoil. s.nagamuthu, j.nb judgment made in criminal appeal (md).no.560 of 2008 11.06.2015
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

11. 06.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.560 of 2008 R.Sasidaran @ Sasi : Appellant Vs. The State rep by The Inspector of Police, Vigilance and Anti Corruption, Nagercoil, Crime No.1 of 2003. : Respondent PRAYER Appeal is filed under Section 374 of the Code of Criminal Procedure to set aside the conviction and sentence imposed on the appellant by Judgment dated 11.12.2008 passed by the Special Judge cum Chief Judicial Magistrate, Nagercoil, Kanyakumari District, in Special Case No.5 of 2004, on the file of the Special Judge cum Judicial Magistrate Nagercoil, Kanyakumari District. !For Appellant : Mr.R.Shanmuga Sundaram Senior Counsel For Mr.S.Ravi ^For Respondent : Mr.C.Mayil Vahana Rajendran Additional Public Prosecutor :JUDGMENT

************* The appellant is the first accused in Special Case No.5 of 2004, on the file of the learned Special Judge cum Chief Judicial Magistrate, Nagercoil, Kanyakumari District, under the Prevention of Corruption Act Cases. He stood charged for the offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, [for brevity, "the Act"].. The second accused, Mr.A.Panneerselvam, stood charged for the offence punishable under Section 13(2) r/w Section 201 of the Indian Penal Code. The Trial Court, by Judgment dated 11.12.2008, acquitted the second accused, but convicted the appellant herein under Sections 7 and 13(2) r/w Section 13(1)(d) of the Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,500/-, in default to undergo rigorous imprisonment for three months for each offence. Challenging the said conviction and sentence, the appellant has come up with the present Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:- PW-2 is a resident of Peruvilai Village. He is a Contractor by profession. For the said purpose, he had obtained a solvency certificate from the Tahsildar, Agastheeswaram. He had made an application to the Public Works Department for registering as a Contractor. The solvency certificate produced by him to the Public Works Department was in turn referred to the Taluk Office, Agastheeswaram, for verification. The appellant herein was B-4 Clerk in the said office during the relevant period. The said file relating to the verification was dealt with by the appellant. It is alleged that on 02.01.2003, when PW-2 had gone to the Taluk Office and met the appellant, in order to clear the file, he demanded illegal gratification of Rs.1,000/- from PW-2. He was not in a position to pay the bribe. Thereafter, he returned to his house and on 03.01.2003, he went to the Vigilance and Anti Corruption Police Station and made a complaint. 2.1. PW-15, the Inspector of Police, attached to the Vigilance and Anti Corruption Police Station, has stated that when he was in the Police Station, at 10.30 AM, PW-2 appeared before him and lodged a oral complaint. He reduced the same into writing, which is EX-P2. Based on the same, he registered a case in Crime No.1 of 2003, under Section 7 of the Act against the appellant. EX-P15 is the First Information Report. He forwarded EX-P1 and EX-P15 to the Court and took up the case for investigation. 2.2. He decided to lay a trap for the appellant. He made a request to the Superintending Engineer of the Tamil Nadu Electricity Board to send an official to be a witness for the trap proceedings. Accordingly, one Mr.Radhakrishnan was sent for the said purpose. Simultaneously, he made a request to the Fisheries Department to send another official for the said purpose. Accordingly, from the said office, PW-3 was sent. PW-15 explained to the witnesses about the case and his plan to lay a trap. With the help of a Police Constable, he made a demonstration of phenolphthalein test. Then, he received a sum of Rs.1,000/- from PW-2, tainted the same with phenolphthalein powder and handed over the same to him. Thereafter, he prepared a mahazer in the presence of PW-3 and another witness. Then, he took PW-2, PW-3 and the other witnesses to the office of the appellant with instructions to PW-2 and PW-3 to go into the office and to hand over the said currency notes, viz., a five hundred rupee note and five hundred rupees notes to the appellant, if demanded, as illegal gratification. PW-15 and the other officials were hiding outside and PW-2 and PW-3 entered into the office. 2.3. At about 04.15 PM, according to the case of the prosecution, when PW-2 and PW-3 entered into the office, the accused was not there. They were informed that he had gone to the office of the District Collector. PW-2 and PW-3 were waiting for a while. Then, the appellant came to the office. PW-2 went near him and enquired about the verification of the solvency certificate. It is alleged that at that time, the appellant asked him as to whether he had brought the money. PW-2, immediately, took out the currency notes from his pocket and gave the same to the appellant. On receiving the said amount, the appellant gave the certificate to PW-2. Then, PW-2 and PW-3 came out of the office and as per the plan, PW-2 made a signal. On receipt of such signal, PW-15 and the other officials rushed into the office of the appellant. On seeing the police officials, the appellant became restless. Thereafter, the accused was asked about the tainted money, which was stated to have been given by PW-2 to him. But, the tainted money was not in his possession. 2.4. It is the further case of the prosecution that after PW-2 and PW-3 had gone out of the office, suspecting something untoward, the appellant had handed over the tainted currency notes to the second accused, the then Deputy Tahsildar. The second accused had vanished away from the office with the said tainted currency notes. Then, the phenolphthalein test was conducted, which turned positive. Thereafter, the file relating to the solvency certificate was recovered. But, the currency notes, which were allegedly given to the appellant, were not in his possession. Then, the second accused was arrested from elsewhere, from whom also, the money was not recovered. Then PW-15, continued the investigation, examined the witnesses, got the chemical analysis report in respect of the Sodium Carbonate solution, collected records and finally, laid the charge sheet against the appellant.

3. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the appellant was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, the prosecution examined as many as 17 witnesses and 28 documents were exhibited, besides four Material Objects. Out of the said witnesses, PW-1, who was expected to speak about the demand as well as the acceptance of demand of illegal gratification and about the trap proceedings, on 03.01.2003, has turned hostile and he has not supported the case of the prosecution in any manner. PW-3 has vividly spoken about the trap proceedings, in which he has stated that the appellant demanded Rs.1,000/- and received the same from PW-2. PW-4 is the Headquarters Deputy Tahsildar, who has spoken about the file relating to the solvency certificate and the other connected records seized at the time of occurrence. PW-5 is the Record Clerk, who has also spoken about the said file. PW-6 is the then Tahsildar, who has also spoken about the said fact. PW-7 is the Typist, who has spoken about the typing of the order of the solvency certificate prepared by the appellant. PW-8, who is an Assistant, has spoken about the maintenance of the Attendance Register. PW-9 is the Junior Drafting Officer, who has spoken about the letter forwarded by him regarding the solvency certificate. PW-10 is the Head Constable, who has spoken about the arrest of the accused. PW-13 is the Head Clerk of the Court, who forwarded the material objects for chemical analysis. PW-15 is the officer, who laid the trap. PW-16 has spoken about the chemical analysis. PW-17 is the Investigating Officer.

4. When the Trial Court examined the appellant under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document. The first accused, in his statement, has stated that it is true that he dealt with the file relating to the verification of the solvency certificate of PW-2. According to him, on 10.01.2003, he went to the Office of the District Collector to discuss about the forthcoming Law Officers' Meeting. On the day of the occurrence, at about 06.00 PM, he returned to the Taluk Office. On the same day, he had cleared the file and forwarded the same to the Headquarters Deputy Tahsildar for further proceedings. While he was sitting in the office, the police officials came and arrested him and according to him, he did not receive the tainted money and he did not hand over the same to the second accused.

5. Having considered all the above materials, the Trial Court acquitted the second accused and convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.

6. I have heard the learned Senior Counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

7. The learned Senior Counsel for the appellant would submit that so far as the alleged demand for illegal gratification is concerned, absolutely, there is no evidence. As rightly pointed out by the learned Senior Counsel, the prosecution has to rely on only the evidence of PW-2 in this regard. But, unfortunately, PW-2 has turned hostile and he has not supported the case of the prosecution in any manner. Thus, absolutely, there is no evidence to prove that the appellant made any demand of illegal gratification on 02.01.2003.

8. Now, turning to the trap proceedings, since PW-2 has turned hostile, the prosecution mainly relies on the evidence of PW-3. According to PW-3, he was not aware of the contents of EX-P1, the complaint. It is his further evidence that he did not give the currency notes to PW-15 for the purpose of trap. He has further stated that PW-15 inserted the currency notes into his pocket. He has further stated that he did not know the contents of mahazer. He has further stated that when he along with PW-2 went to the office of the appellant, as instructed by PW-15, the appellant was not there. It is so stated by PW-2 also. He returned by about 06.15 PM. According to PW-2, the appellant did not make any demand of illegal gratification. He has further stated that as instructed by the police, when he attempted to give the money, the appellant declined to receive the same. Therefore, he kept the money on the table, returned from the office and made the signal. Since he has not stated anything about the demand and acceptance of bribe, he has been treated as hostile. But, PW-3 has stated that the appellant had received the money and kept the same in his pocket. But, unfortunately, during the trap proceedings, nothing was recovered from him. Though it is the case of the prosecution that the tainted money was given by the first accused to the second accused, absolutely, there is no evidence at all to prove this fact. At the time of trap, the second accused was also not found anywhere in the office. However, the second accused was arrested from his house at 08.00 PM on the same day. He has been acquitted by the Trial Court, against which there is no appeal preferred by the State. Even after the occurrence, the tainted currency notes stated to have been given by PW-2 to the appellant and in turn handed over to the second accused have not been recovered at all. The said currency notes have not seen the light of the day, for which also, there is no investigation done.

9. The learned Additional Public Prosecutor would submit that the phenolphthalein test was conducted, which turned positive. The prosecution cannot make any reliance on the phenolphthalein test conducted in respect of the second accused, because he has been acquitted by the Trial Court and there is no appeal filed by the State against his acquittal. Therefore, the learned Additional Public Prosecutor could make reliance on the result of the phenolphthalein test conducted on the fingers of the appellant. It is true that the phenolphthalein test conducted in respect of the appellant turned positive. But, this evidence cannot be treated as substantive evidence so as to come to the irresistible conclusion that the appellant demanded illegal gratification and accepted the same. In the absence of the evidence that the appellant had demanded bribe, received the same and handed over the currency notes to the second accused and in the absence of the recovery of currency notes either from the appellant or from the second accused and in the light of the fact that the second accused has been acquitted by the Trial Court, I am of the considered view that it is very difficult to believe the case of the prosecution in respect of the occurrence on 03.01.2003. Though the evidence of PW-3 has made some foundation for a strong suspicion against the appellant that he would have received the amount, such suspicion shall not take the place of proof. Since the punishment is so stringent, it is required that the prosecution should prove its case beyond all reasonable doubts. In this case, as I have already pointed out, since there are lot of flaws in the case of the prosecution and since absolutely, there is no proof that the appellant had demanded and accepted the illegal gratification and since there was no recovery of the tainted currency notes at all either from the appellant or from the second accused, it is highly unsafe to place reliance on the sole testimony of PW-3 to confirm the conviction and sentence. Thus, I hold that the appellant is entitled for the benefit of doubt and consequently entitled for acquittal.

10. In the result, the conviction and sentence imposed on the appellant, by Judgment dated 11.12.2008, made in Special Case No.5 of 2004, on the file of the learned Special Judge cum Chief Judicial Magistrate, Nagercoil, Kanyakumari District, is set aside and the appellant is acquitted. The Criminal Appeal is allowed. Fine amount, if any, paid by the appellant shall be refunded to him. 11.06.2015 Index : Yes/No Internet : Yes/No NB To 1.The Special Judge cum Chief Judicial Magistrate, Nagercoil, Kanyakumari District. 2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 3.The Inspector of Police, Vigilance and Anti Corruption, Nagercoil. S.NAGAMUTHU, J.

NB JUDGMENT

MADE IN CRIMINAL APPEAL (MD).No.560 of 2008 11.06.2015