THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal No.524 of 2008 Sonali Karthick .. Appellant/Accused Versus State by Inspector of Police, Anti-corruption Wing, Kancheepurm. .. Respondent/Complainant Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code and Section 27 of the Prevention of Corruption Act, 1988, against the conviction and sentence passed by the Special Judge cum Chief Judicial Magistrate, Kancheepuram by his judgment dated 22.05.2008 in Special Case.No.8 of 2002, dated 22.05.2008.
For Appellant .. Mr.R.Vijayakumar for Mr.S.V.Udayakumar For Respondent .. Mr.P.Govindarajan, Addl. Public Prosecutor (Crl.side) JUDGMENT This appeal is directed against the judgment of Special Judge/Chief Judicial Magistrate, Chenglapattu, dated 22.5.2008 holding the appellant/accused Sonali Karthick, former Assistant Executive Engineer, Tamil Nadu Electricity Board, Chengalpattu, guilty of the offence under Sections 7 and 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, for demand and acceptance of Rs.2,100/- from one S.Elumalai, Tamil Nadu Electricity Board Contractor as illegal gratification to pass the bill of Rs.60,975/- and thereby misconducted herself as a public servant and obtained pecuniary advantage by abusing her official position.
2. The case of the prosecution is that S.Elumalai (P.W.2) gave a written complaint to the Inspector of Police, Vigilance and Anti- corruption Wing, Kancheepuram, on 21.3.2000 wherein he has stated that he was awarded a contract for supply of concrete electric poles to Tamil Nadu Electricity Board. He has already supplied electric poles to the tune Rs.2.00 lakhs and the Electricity Board has to pay a sum of Rs.60,000/- for the materials supplied. To recommend the payment of bill of Rs.60,000/-Smt.Sonali Karthick, Assistant Executive Engineer has demanded 4% of the said sum payable and initially she insisted bribe of Rs.3,100/- which was later reduced to Rs.2,100/- and she has declared in clear terms that unless the bribe amount of Rs.2,100/- is paid, she will not forward the bill. This complaint under Ex.P5 dated 21.3.2000 was registered in Crime No.2 of 2000 for the offence under Section 7 of the Prevention of Corruption Act, 1988 and FIR under Ex.P23 was prepared and trap proceedings has been initiated by the Inspector of Police, Vigilance and Anti-corruption, Kancheepuram on the same day.
3. P.W.2-Elumalai, the defacto complainant was sent along with P.W.3-Smt.Dhanalakshmi, Steno-Typist, Animal Husbandry Department, as shadow witness and they were followed by the trap laying team. The currencies smeared with phenolphthalein powder was given to the accused on her demand, she received it and kept it in her black colour hand bag. P.W.2 and P.W.3 came out from the accused office and gave the pre-arranged signal. Thereafter, the trap laying team lead by P.W.12-Vedarathinam, Inspector of Police, DV&AC entered into the room of the accused and interrogated her. After conducting test of her both hands dipping in sodium carbonate solution and found presence of phenolphthalein they enquired about the money received by her from P.W.2-Elumalai. The accused handed over the black colour purse to P.W.12 and the same was recovered from the accused under mahazar Ex.P14. The tainted money recovered from the accused was marked as M.O.1(series) and the black colour was marked as M.O.2. The sample solution drawn from the right and left hand-wash of the accused were marked as M.Os.3 and 4.
4. In order to prove the case, the prosecution has examined 13 witnesses and marked 27 Exhibits and 4 Material Objects. To disprove the case of the prosecution, the defence has examined two witnesses and marked one exhibit.
5. While the case of the prosecution is that the accused by abusing his official position as the Assistant Executive Engineer of the Electricity Board, had demanded Rs.2,100/- as bribe from the contractor P.W.2 and received the same on 21.3.2000 in the presence of P.W.3-Dhanalakshmi. The bribe money smeared with phenolphthalein was seized by P.W.12-Vedarathinam, trap laying officer in the presence of Dhanalakshmi-P.W.3 and Chockalingam who was not examined and P.W.5-Senguttuvelan, Superintending Engineer of Tamil Nadu Electricity Board. Samples drawn from the hand-wash of the accused were sent to Chemical analysis and found containing Sodium Carbonate and phenolphthalein. The chemical analyst report has been marked as Ex.P25 and P26 and the same has been spoken by P.W.10-Kasthuribai, Scientific Assistant, Grade-I, Forensic 5 Department, Chennai. The demand of bribe has been spoken by P.W.2 and acceptance of bribe has been proved through P.W.2 and P.W.3. The recovery of bribe money M.O.1 series from the possession of the accused has been proved through the evidence of P.W.3, P.W.5 and the chemical analysis report-Ex.P25. The prosecution has established the guilt of demand and acceptance of illegal gratification other than legal remuneration by the accused person.
6. Whereas it has been contended by the accused that the father of the accused Mr.Sidney Barnas-D.W.1 had money transaction with the defacto complainant-P.W.2 and he had borrowed Rs.5,000/- from D.W.1-Sidney Barnas on 15.7.1998 to meet out his sister's marriage expenses and promised to repay the money with 12% interest per annum. He has also executed a pronote (Ex.D1) to that effect in the presence of Sonali Karthick (accused) who is one of the witnesses and another witness Viswanathan-D.W.2, who is the scribe of Ex.D1 pronote. On 21.3.2000, P.W.2-Elumalai in respect of discharge of debt owed to the father of the accused, met the accused at her office and gave Rs.2,100/- which she has received on behalf of her father and kept it in her purse which was later recovered by the police.
7. To prove the said averment the accused has examined her father as D.W.1, whose favour the alleged pronote was executed by the defacto complainant and D.W.2 Thiru.Viswanathan one of the witnesses to the execution of pronote. The pronote alleged to have executed by P.W.2 Thiru.Elumalai is marked as Ex.D1.
8. The trial Court after appreciating the evidence on either side, has disbelieved the probability of the explanation offered by the defence and accepted the case of the prosecution regarding demand and acceptance of money and has presumed that this acceptance of Rs.2,100/- by the accused person is towards illegal gratification which she has obtained for herself as a motive to pass the bill of the contractor-P.W.2.
9. Aggrieved by the said finding, the present appeal is preferred on the following grounds:-
(i) The sanction to prosecute the accused has been accorded without application of mind.
(ii) Though the defacto complainant has deposed that illegal gratification was demanded on 5th of March, 2000, he did not give complaint till 20th of March, 2000 and there is no explanation for the delay in lodging the complaint.
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(iii) While P.W.8-Sivan and P.W.11-Venkateswaran have deposed that the defacto complainant habitually used to borrow hand loan from the staff and repay the same subsequently. This fact corroborates the defence version that Rs.2,100/- received by the accused from defacto complainant is towards repayment of loan based on the pronote Ex.D1 executed by the defacto complainant in favour of the Accused father.
(iv) The trial Court has totally ignored the evidence let in by the defence and the plausible explanation offered by the defence regarding the receipt of Rs.2,100/- from the defacto complainant.
10. The learned counsel appearing for the appellant submitted that the order of sanction to prosecute the accused itself bristles with infirmity. Ex.P1 the order according sanction to prosecute the accused is prepared on dictation of P.W.1 Sukumaran to his Supervisor. It is not the original order passed by P.W.1 after application of mind.
11. Heard the counsels and perused the records exhibited as evidence before trial court.
12. A perusal of Ex.P1 and the deposition of P.W.1- Sukumaran, Chief Engineer, Tamil Nadu Electricity Board, Chennai, does not indicate any reason to reject it for non application of mind. A detailed discussion about the material perused by P.W.1 is extracted in the sanction order marked as Ex.P1. In his evidence, P.W.1 has reiterated about the perusal of documents and application of mind. Preparing the sanction order on diction to his subordinate cannot be taken as non application of mind. In fact it explicitly shows application of mind and dictation of the same to the subordinate to prepare the order. Hence, this Court finds no substance in the said attack.
13. The learned counsel for the appellant pointed out the discrepancy in the evidence of P.W.2, P.W.3 and P.W.12 regarding the description of the Material Object in which tainted money was kept by the accused after receiving the same from P.W.2. Mahazar Ex.P-14 and the M.O.2 marked before the trial court indicates that it is a black colour ladies hand bag. P.W.2-defacto complainant in his deposition has stated that when the accused demanded money he took Rs.2,100/- kept in his shirt pocket and gave it to the accused. The accused counted it and kept it in the plastic black colour ladies hand bag and kept it in her right side table drawer. Whereas P.W.3- Dhanalakshmi has described it as ladies purse instead of hand bag.
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14. Pointing out the difference between the hand bag and purse, the learned counsel for the appellant contended that the said discrepancy is vital discrepancy which leads to disprove the case of the prosecution. Since the place from which the tainted money was recovered is also doubtful, the case of the prosecution ought not to have been believed by the trial court.
15. A black colour purse which has been spoken by the witness has been marked as M.O.2 by the prosecution and the same has been identified by P.W.3. Though he has described it as a ladies hand bag, the physical appearance of the Material Object had been seen by the trial Court. It is not the description of the bag but the bag which has been seized and presented before the court matters. Having identified as the bag in which the tainted money was kept by the accused on that day, the variation in describing the object as purse or hand bag which does not carry any significance. Furthermore it is to be noted that it is not the case of the accused that she did not receive money from P.W.2 on that day. Her case is that money was given by P.W.2 to discharge his loan owed to her father D.W.1 on execution of pronote-Ex.D1.
16. The explanation by the accused is that she has received that money on behalf of her father-D.W.1. Therefore, it is the duty of the court to find out whether this explanation is plausible and will disprove the case of the prosecution. P.W.2 was not confronted with pronote Ex.D1 while he was cross-examined. It was suggested to P.W.2 that whether he borrowed money from Sidney Barnas-D.W.1 to meet out his sister's marriage and whether earlier he has paid Rs.3,000/- and on 21.3.2000 he paid the balance of Rs.2,100/-. This suggestion was denied by him. Later father of the accused has mounted the witness box as D.W.1 and has introduced Ex.D1 pronote.
17. One of the witnesses to the pronote is the accused and the other witness is D.W.2 Viswanathan. D.W.2 admits that he is the relative of D.W.1. Though P.W.8 and P.W.11 have also admitted in the cross-examination that contractor-P.W.2 habitually used to borrow money from the staff and repay the same, this theory cannot be accepted for the simple reason that as a public servant except official transactions the accused is not supposed to have other transaction with P.W.2, especially money transaction with him directly or through the person known to her. More so, when execution of Ex.D1 pronote is totally denied by P.W.2 and no further steps have been taken by the accused person to establish that Ex.Dd1 was executed by P.W.2. The prosecution without any flaw has proved the demand of bribe through P.W.2 prior to complaint and through P.W.3 on the day of trap. The 11 demand and acceptance of Rs.2,100/- as bribe is evident from their evidence. Whereas, the accused admits acceptance of the money but has come forward with an explanation. This explanation and evidence let in to fortify the said explanation does not probablise, for the reason stated above. The other minor discrepancies pointed out by the accused/appellant also does not carry any weight to reconsider the view taken by the trial court in this case. Hence the appeal does not deserve any merit for interference.
18. In the result, the appeal is dismissed. The conviction and sentence passed against the appellant in Special Case.No.8 of 2002, dated 22.05.2008 by the Special Judge of Chief Judicial Magistrate, Kancheepuram by his judgment is confirmed.The appellant is directed to surrender herself to undergo the remaining period of sentence if any within two months from the date of this judgment, failing which the respondent shall secure her presence and remand her to prison.
Index:Yes/No 8.11.2017 Internet:Yes/No gr.
Copy to:-
1. The Chief Judicial Magistrate, Chengalpattu
2. The Public Prosecutor, High Court, Madras.
G.JAYACHANDRAN, J gr.
PRE-DELIVERY JUDGMENT IN CRL.A.No. 524 of 2008 8.11.2017