THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal No.243 of 2017 Rajamani .. Appellant Vs State by Inspector of Police, V & AC, Vellore, Vellore District, Crime No.2/2003 .. Respondent Prayer:- Criminal Appeal filed under Section 374 to set aside the conviction and sentence imposed upon the appellant on 02.03.2007 by the learned Chief Judicial Magistrate cum Special Judge, Tiruvannamalai in Special Case No.4/2004.
For Appellant : Mr.V.Karthick, Senior Counsel for M/s.T.S.Gopalan & Co For Respondent : Mr.R.Ravichandran, Government Advocate (crl.side) JUDGEMENT This Criminal Appeal is directed against the judgment rendered by learned Chief Judicial Magistrate cum Special Judge, Tiruvannamalai in Special Case No.4/2004 on 02.03.2007.
2. The case of the prosecution is that the appellant herein while working as Secretary in Chengam Co-operative Housing Society. Mr.Pichandi - the defacto complainant during the month of November and December 2002 came to the said Society and enquired the appellant for redeeming the mortgage loan of his father-in-law, Mr.Rajarathinam, who availed housing loan from the Society but, died before clearing the dues. At that time, the appellant demanded illegal gratification from the defacto complainant to get back the documents of his father-in-law. Since, the defacto complainant was not inclined to give bribe, he reported the same to the respondent Police on 03.02.2003 they laid trap and caught the appellant red handed on 04.02.2003, immediately after receipt of the tainted money of Rs.3,000/-.
3. Based on the final report, the trial Court has framed two charges for offence under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Eight witnesses were examined on behalf of the prosecution. 16 Exhibits were marked and 8 material objects were relied upon by the prosecution. On the side of the accused/appellant, one witness and six exhibits were marked.
4. The case of the prosecution as unfold through the witnesses is that, Mr.Rajarathinam availed housing loan on 23.04.1997 and 16.11.1997 for Rs.38,500/- in total. On 23.01.1998, Mr.Rajarathinam died due to snake bite. When the widow of Mr.Rajarathinam enquired the appellant/accused about redeeming the mortgage, he got the Death Certificate of Mr.Rajarathinam and told the widow of Rajarathinam that he will communicate her about the balance money to be paid towards the loan account. Even after three years, there was no communication from the Society and hence, Mr.Pichandi – P.W.2 - the defacto complainant, who is the son-in-law of Mr.Rajarathinam met the accused/appellant during the month of November 2002. At that time, the accused/appellant informed the defacto complainant that he has to pay Rs.86,000/-. When the defacto complainant asked about the details of the loan particulars, the accused/appellant demanded Rs.56,000/- and also instructed him to give that money, at his house. The defacto complainant, sold his wife's jewels and took Rs.50,000/- and went to the Office of the accused/appellant on 07.12.2002 and met the accused/appellant got enraged, scolded the defacto complainant for meeting him at Office instead of his house and left the place.
5. Thereafter, one Mr.Rajendran, the Clerk of the Society perused the accounts and told the defacto complainant that he should pay Rs.49,200/-. After receiving the money, Mr.Rajendran gave receipt for the same and also two empty letter pads with script to be typed.
On the next day, when the defacto complainant went to the accused/appellant Office to get his signature in those two letters, the accused refused to sign on the same.
6. Again, on 02.02.2003, the defacto complainant went to the accused house and requested him to forward those letters to Chennai so that, they will receive the original documents mortgaged by the deceased Mr.Rajarathinam. For which, the accused/appellant initially demanded Rs.12,000/- as bribe and later agreed for Rs.3,000/- and told if the defacto complainant pays Rs.3,000/-, he will forward those letters to Chennai. When the defacto complainant asked where he should pay the money, the accused/appellant asked him to come to Kottavur bus stop on 04.02.2003 (Tuesday), between 10.00 am and 11.00 am.
7. The defacto complainant was not willing to give bribe to the accused hence, along with the complaint, he went to the Vigilance Office at about 2.00 pm on 03.02.2003. The Deputy Superintendent of Police – P.W.7 has received the said complaint and registered a case in Crime No.2/2003 for offence under Section 7 of the Prevention of Corruption Act. On the next day i.e., on 04.03.2003, the Deputy Superintendent of Police has arranged for witnesses and laid trap and proceeded to Kottavur Bus stop and waited for the accused till 11.30 am. Since, the accused did not turn up to Kottavur bus stop, the defacto complainant – P.W.2 and Mr.Srinivasan - P.W.3 and the Police party have proceeded to the Office of the accused at Chengam. When P.W.2 and P.W.3 met the accused he demand, money. On his demand, P.W.2 has paid Rs.3,000/- and come out and gave the pre-agreed signal.
8. In the mean while, the accused after receiving the money came out of his Office. The Police party intercepted him; and took him back to his Office and tested his hand, shirt pocket by conducting phenolphthalein test. The tainted money M.Os.1 & 2 were recovered from the accused/appellant. The seizure mahazar Ex.P.8 was drawn on the spot in the presence of the accused/appellant and the witnesses, Mr.Kannan – P.W.4, Mr.Ramamohan (not examined) and Mr.Srinivasan – P.W.3.
9. The accused denied demand of bribe from the defacto complainant. However, he admits the receipt of Rs.3,000/- from the defacto complainant. According to him, he received the said money towards interest portion of the loan secured by deceased Mr.Rajarathinam and asked the defacto complainant to bring the pass book to make necessary entry. Hence, according to the accused, the money he accepted from P.W.2 is not a illegal gratification but the money received towards interest for the loan. To substantiate this explanation, he has examined one Mr.Chandrasekaran - D.W.1 and has marked 6 exhibits.
10. The trial Court held that the explanation given by the accused is not convincing. The evidence let in by him does not probablize the case D.W.1 and exhibits marked as Exs.D.1 to D.6 does not rebut the presumption of guilt.
11. The contradictions pointed out by the defence were taken as minor contradictions and quite natural. Relying upon the complaint - Ex.P.2 and the evidence of P.W.2 and P.W.3, the result of phenolphthalein test conducted, recovery of M.O.1 and M.O.2 from the accused coupled with the documentary evidence such as Resolution – Ex.P.16, relied by the prosecution which reveals that on 07.12.2002 itself, the Society has received the entire amount along with the interest, from the widow of Mr.Rajarathinam and the intimation letters regarding clearance of entire loan amount on behalf of Mr.Rajarathinam were forwarded in the month of January 2003 itself to the Society Union at Chennai, the trial Court held that the appellant is guilty of the charges under Sections 7 and 13(1)(d) of the Prevention of Corruption Act.
12. The learned Senior Counsel for the appellant submitted that the trial Court has not appreciated the evidence let in by the prosecution and the defence in a holistic manner but, has convicted the appellant on the basis of conjectures and surmises. The Movement Register marked as Ex.D.5 will falsify the case of the prosecution. On 07.12.2002 the accused was on camp. He left the office at 7.30 am and returned back at 9.00 pm only. Likewise, Mr.Rajendran, Clerk was on Camp on 09.12.2002, he left the office at 7.30 am and returned at 6.30 pm. Relying upon the Movement Register – Ex.D.5, the learned Senior Counsel for the appellant submitted that on 07.12.2002, the accused was not at all in the Office and on 09.12.2002, Mr.Rajendran was not in the Office. Therefore, the case of the prosecution that the defacto complainant came to the office on 07.12.2002; met the accused but, the accused left the office enraged and the defacto complainant was waiting for the accused whole day is proved to be false. Similarly, the version of the prosecution that on 09.12.2002, the defacto complainant came to the office, enquired with Mr.Rajendran and Mr.Rajendran took the defacto complainant – P.W.2 to the accused and enquired about the clearance of the loan amount is also proved to be false. They are oral statement contrary to the written document kept in the ordinary course of office transaction.
13. It is also contended by the learned Senior Counsel for the accused/appellant that the Circular of the Society Union dated 12.04.1999 clearly indicates that if any person availed housing loan, expire before clearing the loan, his legal representatives need not pay the balance installment and it is suffice to pay the principal and interest till the month of June prior to his death and from the date of his death, till the clearance of arrears, the legal representatives of the deceased family are liable to pay only the interest. Accordingly, the defacto complainant family has paid Rs.49,200/- towards the principal and interest as on 28.01.1998. Regarding the same, a resolution of the Society was passed on 07.12.2002 and the same is marked as Ex.P.16.
14. According to the accused, Rs.3,000/- received by him from the defacto complainant is towards interest and that is the reason why he asked the defacto complainant to bring the pass book to make necessary entry. This aspect has been spoken by P.W.3 in his examination-in-chief. Further, the Sanctioning Authority who was examined as P.W.1 has also clarified the Circular of the Society Union marked as Ex.D.6. He has deposed that after receipt of Rs.49,200/- on 07.12.2002, the loan account was closed. After deducting the interest portion accrued after the date of clearing the loan, the balance amount of Rs.1,278/- was refunded to the legal heirs of Mr.Rajarathinam after redeeming the shares he held in the society.
15. The learned Senior Counsel for the appellant also raised serious doubt about the case of the prosecution for non examination of the widow of Mr.Rajarathinam and Mr.Rajendran, the Clerk who has received Rs.49,200/- from the defacto complainant on 07.12.2002. It was further contended that the explanation of the accused was not recorded by the Investigating Officer immediately after completion of the trap proceeding which is mandatory requirement as per the Vigilance Manual. This violation has highly prejudiced the case of the accused. As per the law, questioning the accused officer immediately after recovery of bribe money and phenolphthalein test to rule out any plausible explanation is a mandatory requirement. Non compliance of the said regulation will vitiate the entire prosecution as held by this Court in State v. M.L.Rajan Asst., Educational Officer, Thimiri (2013 (2) L.W (Crl.) 157) and the relevant portion is extracted below:-
“17. It is incumbent upon the investigating officer to record the statement of the accused immediately after the trap, as per Rule 47 of DVAC Manual which reads as follows:
"47. Questioning of Accused Officer (1) Questioning of the Accused Officer and recovery of the bribe money should be after the phenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer's statement, if any. In this event, the provisions of Section 27 of the Indian Evidence Act would be available to the prosecution.
(2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary under section 162 of the Code of Criminal Procedure, 1973. If there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No.33979/VAC-4/76, dated 10th December, 1976]"
The failure on the part of the Trap Laying Officer to record statement from the accused immediately after the arrest would vitiate the entire proceedings.”
16. Further, relying upon the judgment of the Hon'ble Supreme Court in V.Sejappa v. The State By Police Inspector Lokayukta, Chitradurga (2016 SCC Online SC 356) the learned counsel for the accused submitted that mere recovery of money alone will not mean to presume that the money was received for illegal gratification. Unless, evidence let in by the prosecution proves the payment of money is a bribe money and it was received by the accused as a ratification to do an unlawful act. In this regard, it is relevant to extract paragraph Nos.20 & 23 of the said judgment:-
“20.It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
21. .........
22. .........
23. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-
http://www.judis.nic.in "11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.
Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act.
While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
17. Per contra, the learned Government Advocate (crl. side) appearing for the State submitted that, the appellant demanded Rs.12,000/- to get back the original documents mortgaged by the deceased Mr.Rajarathinam. The demand is spoken by the defacto complainant- P.W.2, both in his complaint as well as in the testimony. The resolutions passed by the Society Union regarding the receipt of Rs.49,200/- on 07.12.2002 and the content of the resolution which is marked as Ex.P.16 indicates that on behalf of the deceased Mr.Rajarathinam, his legal representatives have paid the arrears of loan amount along with the interest as on 28.01.1998. Therefore, having received money and failed to explain the possession of tainted money, the appellant is rightly held guilty of the charges.
18. The evidence of the defacto complainant P.W.2 is that he first met the accused at his house and enquired about the loan for which the accused said that around Rs.86,000/- is due towards the housing loan. Later, he informed that it is around Rs.56,000/- and asked him to pay the money at his house and not at the Office. However, the defacto complainant has gone to the Office to ascertain the exact loan amount due. From Mr.Rajendran, the Clerk, he came to know that it is only Rs.49,200/- and on the same day, he has paid Rs.49,200/-. After payment, on the instruction of Mr.Rajendran, the script given by Mr.Rajendran was typed in the letter pad of the society. Two days after, he went to the Office of the accused. On that day, he met Mr.Rajendran as well as the accused. However, from the Movement Register, marked as Ex.D.5, on 09.12.2002, Mr.Rajendran was on camp and he returned to the office only at 6.00 pm. Both P.W.2 – Pichandi and P.W.4 - Kannan has deposed that on 07.12.2002, the accused called over phone to ascertain whether the defacto complainant has paid the money. On that day, the Movement Register indicates that the accused was on camp. The alleged meeting of the appellant and P.W.2 on these two occasions has not been corroborated by any other independent witness. Also the presence of the appellant at the office on 07.12.2002 itself appears to be doubtful in view of the Movement Register – Ex.D.5.
19. The specific case of the prosecution is that on 07.12.2002, P.W.2 has paid Rs.49,200/- towards the entire loan amount to Mr.Rajendran. The said Mr.Rajendran has not been examined as witness. No receipt has been marked for the payment of Rs.49,200/-. The resolution marked as Ex.P.16 is dated 07.12.2002. The original minutes book does not carry the signature of the Special Officer who presided over the proceeding on that day. According to the defacto complainant/P.W.2, he was waiting at the Office till late evening for the accused to come. Thereafter, Mr.Rajendran enquired him about the purpose of his visit and he referred the ledger and told him that he has to pay Rs.49,200/- towards due of loan amount. Accordingly, he has paid that money, got receipt and he has also got two letters typed in the letter pad given by Mr.Rajendran. All these events namely payment, typing of letter – Ex.D.1 and the resolution of the Society has happened on 07.12.2002 itself. The day on which the accused was admittedly not present in the office. As per the deposition of P.W.4 – Kannan, the copy of the resolution was forwarded to Union Office at Chennai on 18.01.2003. When this letter was forwarded on 18.01.2003 itself, the necessity for the defacto complainant to pay Rs.3,000/- as bribe to the accused to forward the letter to the Head Office does not arise. The specific case of the defacto complainant is that after paying Rs.49,200/- to Mr.Rajendran, Ex.D.1 was prepared on the instruction of Mr.Rajendran and two days after, when he met Mr.Rajendran i.e., on 09.12.2002, Mr.Rajendran took him to the accused. The accused scolded him and did not agree to forward the letter to Chennai without getting bribe. So, Mr.Rajendran pacified the defacto complainant and told him that he will inform him about the development later. Mr.Rajendran did not call him back. After three months, the defacto complainant came back and enquired the accused at his house. At that time, the accused demanded the bribe to forward the letter to Chennai. Since, he was not willing to pay bribe money, he met the respondent Police and gave the complaint - Ex.P.2 on 03.02.2003. However, Ex.D.1 letter has been forwarded to the Office at Chennai Housing Board Union on 18.01.2003 itself as per the evidence of P.W.4. The alleged demand of gratification to forward the letter which had already been dispatched is unbelievable.
20. From Ex.D.6, it appears that any member who avails housing loan but expires before clearing the loan due, the balance amount will be adjusted from the group insurance coverage. His legal representative has to pay the principal till the month of June before his death and interest till the date of his death. However, from the date of his death, till payment of principal and interest, the interest for that amount has to be paid. This procedure is admitted by the Sanctioning Authority – D.W.3.
21. As on 07.11.2002, the account of Late Rajarathinam showed a balance of Rs.19,542/- towards penal interest, Rs.29,483/- towards interest and Rs.38,500/- towards principle which means but for the Group Insurance coverage the due as on 07.11.2002 was Rs.87,525/- After lapse of more than 3 years, the defacto complainant has made enquiry to clear the loan amount and after much persuasion, he has made to pay Rs.49,200/- on 07.12.2002. Thereafter, resolution has been passed and communication to the Union at Chennai for return of document has been made on 18.01.2003. If Rs.3,000/- was received by the accused as illegal gratification, there is no necessity for him to ask the defacto complainant to bring his passbook.
22. Issuance of pass book and maintenance of pass book is not controverted. Interest for the period from the date of death of the member till the payment of arrears (principle, interest and penal interest) as on date of death has to be paid is an admitted fact. P.W.3 has deposed that the accused received money and kept it in his shirt pocket and thereafter, got the phone number of the defacto complainant and told him that he should bring pass book to verify the entries of his payments. The cumulative assessment of the evidences pointed above, probabilize the explanation of the accused. This explanation further gets strengthened by the evidence of P.W.1 who has said that after the receipt of Rs.49,200/- on 07.12.2002, there was no due in his account. The interest for the loan was subsequently calculated and deducted from the share capital held by Rajarathinam as a member of the society and balance of Rs.1,278/- was refunded to his legal representatives.
23. In view of the above procedure, if P.W.3 evidence is scrutinised, we find P.W.3 has deposed that after receiving the tainted money, the accused instructed P.W.2 to bring the passbook to make necessary entry. From the evidence of P.W.4, it is elucidated that the father-in-law of P.W.2 was a member of the housing society, in which, the accused was working as Secretary. The defacto complainant's father-in-law Mr.Rajarathinam was sanctioned housing loan of Rs.55,000/- and the first installment of Rs.22,000/- was received by Mr.Rajarathinam on 23.04.1997 and the second installment of Rs.16,500/- was received by him on 16.11.1997. Before disbursing the third installment, the said Mr.Rajarathinam died. Notice has been sent to his family members on various occasions between 2000 and 2002.
24. The Hon'ble Supreme Court in Punjab v. Madan Lal Verma (2013 (14) SCC 153) has held that:-
“11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."
25. According to the prosecution, Rs.3,000/- was demanded by the accused/appellant as a motivation to do an illegal act hence, it is an illegal gratification. Whereas, according to the accused/appellant, he received the tainted money from P.W.2 towards the interest portion. The receipt of money is not in dispute. In fact, during the search of the accused person, the Investigating Officer - P.W.7 has deposed that apart from Rs.3000/-, the accused had in his possession Rs.3,500/-; Rs.500/- and Rs.660/- and produced the same before him. The accused has explained to him that Rs.660/- is his personal money whereas, Rs.3,500/- and Rs.500/- were money which he has collected towards the loan amount. Satisfied with his explanation, he http://www.judis.nic.ihn as called Mr.Kannan – P.W.4 and given the money to him. This aspect of returning Rs.3,500/- and Rs.500/- supposed to be the loan collections made by the accused is not spoken by Mr.Kannan – P.W.4. As per the recovery mahazar – Ex.P.8, which says the accused apart from the tainted money of Rs.3,000/- had in his possession Rs.3,500/- Rs.500/- and Rs.660/-. The explanation of the accused that Rs.3,500/- Rs.500/- was towards the loan collection from Mrs.Rani and Mr.Periyasami respectively was verified with the receipt books and found to be correct and therefore, the Investigating Officer - P.W.7 has asked Ms.Annapoorani to receive that money and prepare cash receipts. The said Ms.Annapoorani, Clerk has not been examined as witness by the prosecution. The receipt books which P.W.7 mentioned in the mahazar – Ex.P.8 not produced before the Court.
26. In State of Andhra Pradesh v P.Venkateshwarlu (2015 (3) MLJ (crl.) 225 (SC)), the Hon'ble Supreme Court, on appreciating the evidence, at paragraph No.10 has held as follows:-
http://www.judis.nic.in “10. We are aware of the position in law, as laid down in cases involving the relevant provisions under the Prevention of Corruption Act, that mere recovery of the tainted amount is not a sine qua non for holding a person guilty under Sections 7, 11 and 13 of the Act. This Court has observed in Narendra Champaklal Trivedi Vs. State of Gujarat, http://www.judis.nic.in (2012) 7 SCC 80, that there has to be evidence adduced by the prosecution that bribe was demanded or paid voluntarily as bribe. The demand and acceptance of the amount as illegal gratification is a sine qua non for constituting an offence under the Prevention of Corruption Act. The prosecution is duty bound to establish that there was illegal offer of bribe and acceptance thereof and it has to be founded on facts. The same point of law has been reiterated by this Court in State of Punjab Vs. Madan Mohan Lal Verma, (2013) 14 SCC 153. In the present case the factum of demand and acceptance has been proved by the recovery of the tainted amount and the factum of there being a demand has also been stated. The essential ingredient of demand and acceptance has been proved by the prosecution based on the factum of the case. It has been witnessed by the key eye witnesses and their testimonies have also been corroborated by other material witnesses. The offence under Section7 of P.C. Act has been confirmed by the unchallenged recovery of the tainted amount. Thus, it is our obligation to raise the presumption mandated by Section 20 of P.C. Act. It is for the accused respondent to rebut the presumption, by adducing direct or circumstantial evidence, that the money recovered was not a reward or motive as mentioned under Section 7 of the P.C. Act.”
27. If really, the accused has received Rs.3,000/- as illegal gratification he need not have asked for the passbook. Since the letter to the Society Union has dispatched on 18.01.2003, accepting money on 04.02.2003, cannot fall under the category of motive to do any future act, at the most only it can be a reward for the act already done. But that is not the case of the prosecution witness/P.W.2. His complaint in Ex.P.2 is that the accused demanded Rs.12,000/- and later settled for Rs.3,000/- to forward the letter to Chennai Union Office. The first charge framed based on the final report also alleges the demand of illegal gratification as motive to forward the letter and not a reward for letter already forwarded.
28. For the above said reasons, this Court is of the opinion that the explanation given by the accused appellant though not proved beyond doubt but probabilized such an eventuality. The non examination of Rajendiran who alleged to have processed the loan account of the Late Rajarathinam, non production of receipt to show when Rs.49,200/- was paid by P.W.2. The unsigned minutes of the society – Ex.P.16, with manipulation all put together place the prosecution case under cloud. Hence, the trial Court conviction and sentence is liable to be set aside.
29. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed by the learned Chief Judicial Magistrate cum Special Judge, Tiruvannamalai in Special Case No.4/2004 dated 02.03.2007 are set aside. The appellant/accused is acquitted from the charges and he is set at liberty unless his presence is required in connection with any other case. The bail bond, if any executed by the appellant/accused shall stand cancelled. Fine amount, if any shall be refunded to the appellant.
04.09.2017 jbm Index: Yes Speaking Order/non speaking order To
1. The Special Judge (Special Court for Trial of Cases under the Prevention of Corruption Act), Salem.
2. The Public Prosecutor, High Court, Madras.