THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.315 of 2010
B.Karunanithi (Deceased) 1.K.Vijayabharathi Raja 2.Tamilol 3.Vijayamalini
4. Vijayanirmala .. Appellants (Impleaded the appellants 1 to 4 LRs of deceased Appellant as per the order of this Court dated 25.04.2017 in Crl.M.P.No. 5783 of 2017 in Crl.A.No.315 of 2010) .. Vs ..
The State rep. by The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Thanjavur. I/c Nagapattinam.
Crime No.18/2005 .. Respondent
PRAYER: Criminal Appeal filed under Section 374 Cr.P.C., against the judgment of conviction and sentence pronounced dated 20.04.2010, made in C.C.No.10 of 2006, on the file of the learned
Chief Judicial Magistrate, Nagapattinam.
For Appellants : Mr.N.Duraisamy for Mr.D.Vairamoorthy For Respondent : Mr.G.Murugeshkumar for Mr.R.Ravichandran Government Advocate (Crl.Side) - - - - -
JUDGMENT
The present Criminal Appeal assail the correctness of the conviction and sentence awarded to the appellant – Mr.B.Karunanithi, who died pending appeal and pursued by his legal representatives. The learned Chief Judicial Magistrate, Nagapattinam had convicted the deceased appellant for the offence under Sections 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for period of three years and to pay a fine of Rs.5,000/- in default of payment of find 6 months rigorous imprisonment.
2. The case of the prosecution unfold through its witnesses reveals Nadana Singaram (P.W.2), Secretary of Hindu Aided Elementary School, Sirkazhi Taluk sought for No Objection Certificate from the Fire Department which was essential for the school as per the Government instructions. In response to the letter sent by P.W.2, the appellant herein who was serving as Station Fire Officer, Sirkazhi came to the school premises for inspection on 03.09.2005. After inspection, he contacted P.W.2 over phone and instructed him to come to his office at Sirkazhi. Accordingly, P.W.2 went to the Fire Station, Sirkazhi on 03.09.2005 at about 11.30 am and met the appellant. At that time, the appellant has demanded Rs.2,000/- as gratification for issuing No Objection Certificate. As a Secretary to the School, P.W.2 had reverted back the matter to the Headmistress. On 05.09.2005, the appellant has again gone to the defacto complainant school met the Headmistress (P.W.4) and had reiterated the demand of Rs.20,000/- as bribe. Since, P.W.2 was not willing to give bribe, he had lodged a complaint before the District Vigilance and Anti-Corruption on 12.09.2005. Based on his complaint marked as Ex.P.2, the Trap Laying Officer – P.W.21 has registered the complaint against the appellant under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act. Thereafter, trap proceedings has been organised by P.W.1 in the presence of two independent witnesses. Since the appellant had demanded a total sum of Rs.2,000/- for purchase of fire extinguishers and Rs.2,000/- as bribe. Two sets of Rs.2,000/- was arranged through the defacto complainant. One set of Rs.2,000/- with Rs.100 notes and another set of Rs.2,000/- with 4 x 500 rupees. The second set meant for bribe was smeared with phenolphthalein and first set of Rs.100 x 20 meant for the cost of fire extinguishers was kept separately without smearing phenolphthalein. After preparation of entrustment mahazar Ex.P.3, the Trap Laying Team has gone along with the defacto complainant (P.W.2) and accompanying witness (P.W.3) to the office of the accused. P.W.2 has handed over the money to the accused on his demand which has been witnessed by P.W.3. Thereafter, on receiving the pre-arranged signal, the trap laying team has gone to the office of the accused/appellant enquired him. The accused answered positively and has handed over the currency received from P.W.2. Mahazar(Ex.P.4) has been prepared on the spot in the presence of independent witnesses. With this evidence and the chemical analyst report of the hand wash collected at the scene of seizure, the prosecution has succeeded before the trial Court.
3. The appellant, questioning the trial Court judgment, has preferred the present appeal alleging that the trial Court has failed to appreciate the evidence of P.W.2, 4 & 8 which are inconsistent to each other and renders untrustworthy. The explanation given by the appellant that the money was received for purchase of two fire extinguishers which was required for the school building run by P.W.2 not taken note by the trial Court. It failed to note that the defacto complainant school consist of two blocks and each block requires independent fire extinguishers.
4. The evidence of D.W.1 – the Village Administrative Officer who has explained the physical feature of the school run by P.W.2 has not taken note by the trial Court.
5. Per contra, the learned Public Prosecutor appearing for the respondent submitted that P.W.2 has given the complaint Ex.P.2. Wherein he clearly indicate the demand made by the accused appellant to pay bribe of Rs.2,000/- for No Objection Certificate and Rs.2,000/- for purchase of fire extinguisher. Since, P.W.2 was not inclined to bribe for No Objection Certificate, he has lodged the complaint Ex.P2 on 20.09.2005 at 12.15 hours narrating the requirement of No Objection Certificate, the visit of the appellant to the school and the subsequent demand. Accompanying witness – P.W.3, Anbalagan has corroborated the version of P.W.2 regarding the demand of bribe as well as the acceptance of the tainted money by the appellant. The phenolphthalein test conducted has proved positive.
6. The money seized from the appellant has tallied with the denomination and numbers noted in the entrustment mahazar Ex.P.3 prepared at the office of Vigilance and Anti Corruption, Nagapattinam on 12.09.2005 at 13.15 hours. The seizure mahazar prepared at the office of the appellant on 12.09.2005 at 19.15 hours which is contemporaneous document proves seizure of tainted money from the possession of the appellant. Therefore, having proved the demand and acceptance, the explanation given by the appellant for the receipt of Rs.4,000/- from the school for purchase of two fire extinguishers is unsustainable for the reason that nowhere the defence has established that the defacto complainant school requires two fire extinguishers. The evidence of D.W.1, the Village Administrative Officer does not throw any light regarding number of fire extinguisher required for P.W.2 school. Therefore, it is contended that the prosecution has proved the guilt of the accused beyond reasonable doubt whereas, the appellant has not dis-lodged the presumption even with title degree of preponderance of probabilities. Hence, the appeal is liable to be dismissed.
7. Heard the counsels and perused the records.
8. The charge against the appellant is that on 03.09.2005, he received Rs.2,000/- towards bribe to issue No Objection Certificate and another Rs.2,000/- for purchase of fire extinguishers from P.W.2, the Secretary Hindu Aided School, Bagasalai. The tainted money which was entrusted to P.W.2 with denomination and numbers noted in the entrustment mahazar Ex.P.3 had been recovered from the appellant table drawer. According to P.W.2 and P.W.3, the defacto complainant and the accompanying witness respectively the appellant has received the money from P.W.2 and kept it on his table and covered it with his hand kerchief. The tainted currency and the hand kerchief and the hand dip of the accused in the sodium carbonate solution, turned pink in colour indicating the presence of phenolphthalein. The case of the appellant is that, he received Rs.4,000/- from P.W.2 for purchase of two fire extinguishers. In support of his explanation, he relies upon the deposition of P.W.6 Baskaran a trader in fire extinguishers who has deposed that he used to supply fire extinguisher to the appellant @ Rs.1,700/- each.
9. The learned counsel for the appellant relies upon the admission of P.W.2 in his cross examination that the appellant advised to buy two fire extinguishers since the school has two separate building for which, he requested the appellant to reduce the requirement to one instrument since, he does not have sufficient fund to buy two fire extinguishers.
10. The learned counsel for the appellant emphasis that the defacto complainant school consist of two blocks and in each block above 50 students were studying. Hence, the building required two fire extinguishers. The money received by the appellant was towards cost of two fire extinguishers and not bribe to give No Objection Certificate. Though, P.W.2, has answered affirmative to the suggestion made by the defence counsel, during cross examination, that the appellant insisted for purchase of two fire extinguisher, it does not wash away the positive evidence of P.W.2 about the demand of bribe Rs.2,000/- for issuance of No Objection Certificate. The appellant who is Fire Station Officer, should be in a position to point out the relevant rule or regulation which prescribes number of fire extinguishers required for a building which is about 1092.25 square feet as per the rough sketch furnished along with Ex.P.18. Further, it is the specific case of the prosecution that after getting bribe money, the appellant has obtained the signatures of the defacto complainant in Appendix – III and has informed him that soon No Objection Certificate will be issued to him. At that time, the appellant has collected details of number of students studying in P.W.2 school and same is seized under mahazar.
11. A perusal of Appendix – III indicates, it is a blank form wherein, P.W.2 has fixed his signature. It does not contain any information. One of the column in the said form is regarding the number of fire fighting equipment installed. The said column is also blank unfilled. If the money was received to by 2 fire extinguishers then as per the price quoted by P.W.6 the cost of 2 fire extinguisher is only Rs.3,400/- and not Rs.4,000/-.
12. In the absence of contra evidence to show the defacto complainant school building required two fire extinguishers and the appellant has received Rs.2,000/- only towards the purchase of fire extinguishers and not towards the illegal gratification, the presumption under Section 20 of the Prevention of Corruption Act, squarely applies. Therefore, this Court finds no error in the appreciation of evidence and finding of the trial Court convicting the accused. Hence, the Criminal Appeal is dismissed. The conviction and sentence imposed by the trial Court in C.C.No.10 of 2006 dated 20.04.2010 on the accused is confirmed. Since the appellant has died pending appeal, no order is passed regarding the period of sentence.
22.09.2017 Index : Yes / No Speaking order/non speaking order jbm To
1. The Chief Judicial Magistrate, Nagapattinam.
2. The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Thanjavur. I/c Nagapattinam.
Crime No.18/2005
3. The public Prosecutor,(Crl.side) High Court, Madras.
Dr.G.JAYACHANDRAN.J., jbm Pre Delivery Judgment made in
Criminal Appeal No.315 of 2010
22.09.2017