Delivered on : 06.01.2017 State THE HONOURABLE MR.JUSTICE S.BASKARAN Criminal Appeal No.808 of 2009 ---
rep. By The Inspector of Police Vigilance and Anti-corruption Kancheepuram Detachment (Crime No.1/2000/AC/KM) ... Appellant/Complainant vs.
R.Pushparaj ... Respondent/Accused Criminal Appeal filed under Section 378 of Cr.P.C., against the judgment passed in S.C.No.6/2006 dated 20th July 2009 on the file of Chief Judicial Magistrate, Thiruvallur.
For appellant : Mr.E.Raja, Additional Public Prosecutor For Respondent : Mr.G.A.Thyagarajan JUDGMENT This Criminal Appeal has been filed by the State, aggrieved over the acquittal of the respondent/accused by the trial court for the alleged offence under Section 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter called as PC Act).
2.1. The appellant/accused was working as a Firka Surveyor of Putlur Village in Thiruvallur Taluk. He was a Public Servant as per Section 2(C) of the PC Act. The charge against the accused/respondent herein is that he demanded a sum of Rs.1,000/- from P.W.2-Vinayagamurty, who approached the accused to survey and issue patta for his house site in Putlur Village. The respondent/accused was caught red handed in the trap laid on 09.03.2000 when he accepted a sum of Rs.800/- as illegal gratification, from the complainant for processing and issuing patta in respect of house cum vacant site of the complainant and was arrested. Thus according to the prosecution, the accused committed an offence punishable under Section 7 and 13(2) r/w.13(1)(d) of PC Act.
2.2. According to the prosecution, the complainant/P.W.2 met the accused on 01.02.2000 for survey and issue of patta for his house cum vacant site in Survey No.222/3 in Putlur Village, for which, the accused demanded a sum of Rs.1,000/- as illegal gratification, other than legal remuneration. When the complainant/P.W.2/Vinayagamurty met the accused again, after 10 days, the same demand was reiterated by the respondent/accused. Subsequently, when the complainant approached the accused on 06.03.2000, after negotiation, the accused agreed to receive a sum of Rs.800/- as illegal gratification and thereafter, on 09.03.2000, at the house of the accused, a sum of Rs.800/- was received by him, by abusing his official position and the same according to the prosecution, amounts to illegal gratification and the accused has committed the offence punishable under the above said sections of the PC Act.
3. The trial court, after hearing the arguments of both sides and upon perusing the relevant documents, has framed the 1st charge under Section 7 of the PC Act and the 2nd charge under Section 13(2) r/w.13(1)(d) of the PC Act, against the accused and the same has been read over and explained to him. The accused has denied the charges and claimed to be tried.
4. On the side of the prosecution, P.Ws.1 to 10 have been examined, Exhibits P.1 to P.14 and Material Objects M.O.1 to M.O.7 have been marked.
5. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973, in respect of the incriminating materials available in evidence against him, he denied his complicity in the crime.
6. The trial court, after hearing arguments of both sides and upon perusing the relevant evidence available on record, has found that the prosecution failed to prove the case beyond reasonable doubts and hence the accused is not found guilty under sections 7, 13(2) r/w.13(1)(d) of PC Act and thereby, acquitted the accused. Aggrieved over the same, the appellant/State has preferred this criminal appeal.
7. The complainant, who deposed as P.W.2 stated that he filed necessary application before the Thasildar, Thiruvallur, on 01.02.2000 seeking patta and produced the same as Ex.P.2. According to him, he produced the challans for payment of necessary fees/Ex.P.3, copy of the sale deed/Ex.P.4 and copy of Layout/Ex.P.5 along with his application of patta. According to P.W.2/complainant, he was asked by the Thasildar, on 01.02.2000 itself, to meet the surveyor, who is the respondent/accused herein and accordingly he met the accused who was available at the adjacent room at that time, wherein, the accused demanded Rs.1,000/- from the complainant and when he questioned as to what for the amount, the accused replied to him that the amount of Rs.1,000/- is meant for Small Saving Scheme of the Tamil Nadu Government. P.W.2 felt doubt over the same and approached the appellant- police and lodged the complaint and the said complaint is produced as Ex.P.6. On the basis of the said complaint, the respondent registered a case in Crime No.1/2000/AC/KM for offences under Sections 7, 13(2) read with 13(1)(d) of PC Act and the said FIR is produced as Ex.P.13 and the appellant-police took up the matter for investigation.
8. It is stated by the prosecution that the trap was laid on 09.3.2000 at about 3.10 p.m., in the office of the accused in the presence of official witness-P.W.3. It is further stated by the prosecution that on the same day, P.W.2 handed over the sum of Rs.800/- to the accused and he was caught red handed by the trap team. The said amount is produced as M.O.1. According to the prosecution, phenolphthalein test was conducted at the same premises and it proved positive. The amount M.O.1 entrusted under Ex.P.7 to the complainant coated with phenolphthalein powder at the office of the vigilance and anti-corruption was recovered after the trap, from the accused in the presence of witnesses under seizure mahazar Ex.P.11. Similarly the hand washes of both the hands, was of the accused's pocket, and kerchief M.O.2 to 7 were also seized under Ex.P.11. The accused was arrested and remanded to judicial custody. The samples collected M.O.2 to 7 were sent to Chemical Examination; then the trap laying officer P.W.9 Tr.Jeyapalan handed over the investigation to P.W.10 Tr.Vedarathinam, the Inspector of Police. He prepared the rough sketch Ex.P.14 and examined the witnesses and recorded their statements and got the chemical result Ex.P.12 and applied for necessary sanction with P.W.1 Tr.Venkatraman, Assistant Director of survey and Land Records, Thiruvallur and he granted sanction to prosecute the accused under Ex.P.1-sanction order and hence P.W.10 laid charge sheet under Section 7, 13(2) read with 13(1)(d) of PC Act, against the accused.
9. On the examination of the prosecution witnesses and on production of documentary evidence and on considering the rival contentions before it, the trial court acquitted the respondent/accused. Aggrieved over the said conclusion arrived at by the trial court, the State, has come forward with this appeal contending that the demand of amount made by the accused is clearly spoken to by P.W.2 and acceptance of money by the accused in the presence of trap witnesses. P.W.3 has also clearly stated in his evidence, but the same was not taken into consideration by the trial court. Similarly, the evidence of P.Ws.4 and 5, who mentioned about the receipt of application of patta given by P.W.2 and forwarded the same to the accused in their evidence, but the same was not considered by the trial court. The trial court also failed to take into consideration the positive result of the phenolphthalein test which is corroborated by the evidence of trap witnesses. The explanation offered by the accused regarding the receipt of money by him is not established beyond doubt and the trial court is erred in accepting the explanation of the accused in that regard.
10. The learned Additional Public Prosecutor appearing for the State further contended that the claim of the accused that the amount was received as Small Saving Scheme collection is not established by any material, in such circumstances, the conclusion arrived at by the trial court, whereby, the accused was acquitted is incorrect and the same is liable to be set aside. Thus the prosecution pleads to reappraise the evidence and convict the accused as guilty for the offence alleged in the charge sheet.
11. Admittedly, the complainant/P.W.2 has approached the authority concerned, for giving him patta, in respect of his house site. The Tahsildar, who deposed as P.W.4 stated that while he was on duty at Thiruvallur, on 01.02.2000, the complainant/P.W.2/Vinayagamurty, submitted application for patta transfer and he forwarded the same with endorsement to the concerned official. The person who deposed as P.W.5, has stated that while he was working as A.5 at Tahsildar Officer, Thiruvallur, on 01.02.2000, the application submitted by P.W.2/Vinayagamurty, seeking patta transfer was forwarded to the respondent/accused by the Tahsildar and after registering the same in the relevant register, he forwarded the same to the concerned authority. P.W.2 also spoken about the submitting of application seeking transfer of patta and produced the same as Ex.P.2 along with enclosure which is marked as Exs.P.3 to 5. It is therefore clear that the complainant has approached the authority concerned seeking transfer of patta in respect of his house site.
12. It is contended by the prosecution that the accused who was working as Surveyor in the Taluk Office, Thiruvallur, at that point of time, when entrusted with the work of survey and issue necessary certificate, sought for Rs.1000/- as illegal gratification from the complainant/P.W.2 and received Rs.800/- in that connection and the same amounts to illegal gratification.
13. As stated earlier, the prosecution examined the complainant as P.W.2 to substantiate the allegation against the accused herein. However, unfortunately, the complainant/P.W.2 turned hostile and failed to support the prosecution case in total. In the case on hand, P.W.2 categorically deposed about lodging of complaint as regards the demand of Rs.800/- made by the respondent/accused, trap proceedings, entrustment of amount from the accused on 09.03.2000. The officials with the 3 trap team members as witnesses deposed as P.Ws.3 and 6 categorically stated about the entrustment of money to the accused by the complainant and subsequent recovery as well as phenolphthalein test conducted on that date. Thus the prosecution has clearly established the fact of the complainant giving application for transfer of patta in his name and subsequently given Rs.800/- to the accused herein as alleged by the prosecution. However, the complainant/P.W.2, while giving evidence before the trial court has stated that the sum of Rs.1000/- was demanded by the accused only towards Government of Tamil Nadu Small Saving Deposit and he was asked by the Police to give complaint as directed by them. He has deposed as follows:-
“ cd;Dila kidia mse;J gl;lh bfhLf;f U:gha; 1.000 MFk; vd;W brhd;dhh;/ vjw;F mJ vd;W nfl;nld;/ vjphp mJ jkpH;ehL muR rpWnrkpg;g[ gj;jpuj;jpw;fhf U:/1000 vd;dplk; nfl;lhh;/ vjphp nfl;Fk;nghJ vdf;F re;njfkhf ,Ue;jJ/ ehd; y";r xHpg;g[ nghyPrhhplk; brd;W Kiwapl;nld;/ brd;id b$kpdp nkk;ghyk; mUfpy; ,Uf;Fk; ehd;. y";r xHpg;g[ nghyPrhhplk; brd;W Kiwapl;nld;/ m';F ,U mjpfhhpfs; vd;dplk; g[fhh; vGjpth';fpdhh;fs;/ ,J rk;ge;jkhf kWehs; fh";rPg[uj;jpw;F vd;id miHj;jhh;fs;/ Ma;thsh; vd;id g[fhh; vGjpf;bfhLf;fr;brhd;dhh;/ Ma;thsh; mth; brhd;dgo vGjpbfhLf;fr;brhd;dhh;/ g[fhh; vGJk; nghJ rpWnrkpg;g[f;fhf gzk; nfl;lhh; vd;W vGjntz;lhk;. mg;go nghl;lhy; me;j g[fhh; vLglhJ vd;W Ma;thsh; Twpdhh;/ vjphp y";rkhf U:gha; 1.000 nfl;lhh;/ ehd; Fiwj;J nfl;f U:gha; 800 th';fpbfhs;tjhf vjphp Twpajhf g[fhh; vGjr;brhd;dhh;/ mjd;go ehd; 9/3/2000 md;W bfhLj;j g[fhh; m/rh/M/6/”
14. The complainant/P.W.2 has stated in his chief examination itself that the accused asked for Rs.1000/- towards Small Saving Scheme Deposit and since he felt doubt over the same and therefore, he went to the Police. In the Chief Examination itself, P.W.1 has stated as mentioned above. In such circumstances, the contention of the prosecution that P.W.2 has deliberately given the evidence in support of the accused and the same will not disprove the case of the prosecution in other aspects cannot not be accepted. The finding of the trial court in that regard is just and proper.
15. The only other witness examined by the prosecution to prove the fact of demand and acceptance are P.Ws.3 and 6, trap witnesses. P.W.3 has not stated anything specifically about the accused demanding bribe amount from the complainant. P.W.3 Egambaram stated in his cross examination as follows:-
“ehDk; tpehafK:h;j;jpa[k; 3/10 kzpf;F jpUts;S:h; tl;lhl;rpah; mYtyfj;jpy; rh;ntah; miwapy; vjphpia ghh;j;njhk;/ m';F nghlg;gl;oUe;j bg";rpd;kPJ rh;ntah; vd;ida[k; tpehafK:h;j;jpiaa[k; cl;fhur;brhd;dhh;/ eh';fs; cl;fhh;e;njhk;/ rpwpJneuk; fHpj;J tpehafK:h;j;jp vd;gth; rh;ntaiu ghh;j;J vdJ gl;lh buoahfptpl;ljh vd;W ghh;j;jhh;/ rh;ntaUk; ehd; fhiyapy; mYtyfk; te;jt[lndna buobra;Jtpl;nld; vd;whh;/ ehd; nfl;l gzk; bfhz;L te;jpUf;fpwPuh vd;W rh;ntah; nfl;lhh;/ mjw;F mtUk; bfhz;Lte;jpUf;fpnwd; vd;W brhd;dhh;/ gpwF ehd; K:tUk; O filf;Fnghfyhk; vd;W rh;ntah; brhd;dhh;/ miwiatpl;L btspnate;J fjt[ Xuj;jpy; ehd; nfl;l gzk; v';nf vd;W rh;ntah; nfl;lhh;/ tpehafK:h;j;jp bfhLj;jhh;/ mth; th';fpdhh;/ me;j gzk;jhd; vl;L 100 U:gha;jhs;fs; rh/bgh/1 thpir/” ””
Thus it is clear that P.W.3 has not stated whether the amount was given towards bribe or towards small saving certificate. His evidence is silent in that regard. But prosecution failed to get any explanation from P.W.3 in that regard. Further, the complainant-P.W.2 turned hostile and stated that the complaint was written as directed by the Police. The DSP who deposed as P.W.9 has stated that he registered FIR but no denial was given by him about the averments made by P.W.2 regarding the preparation of complaint.
16. In such circumstances, the trial court arrived at the conclusion that the fact of demand of bribe by the accused is not established, even though the sum of Rs.800/- was received by the accused from the complainant. The trial court accepted the explanation of the accused that the said sum was received only towards small saving scheme.
17. The learned counsel appearing for the respondent/accused contended that in order to constitute the offence under Sections 7, 13(2) r/w.13(1)(d) of PC Act, receipt of money by the Government servant is not sufficient and the fact of demand of illegal gratification along with acceptance must be established to make out an offence under the above said section. It is pointed out that in the case on hand, though receipt of Rs.800/- by the accused from the complainant is established, demand is not proved. In view of the explanation given by the accused in respect of the said amount, the onus is on the prosecution to prove that the amount was demanded only as a bribe and not towards small savings scheme. It is contended by the learned counsel for the respondent that no evidence was let in by the prosecution to disprove the claim of the accused and to show that the amount in fact demanded as bribe by the accused. The learned counsel for the accused relied upon the Rulings of this court in the case of M.K.Shanmughasundaram Vs. The Inspector of Police, Vigilance and Anti Corruption, Salem reported in 2007-1-Law Weekly- (Crl).199, in support of his contention, wherein, it is held as follows:
“ It is well settled law that in case of admission of receipt of money by the Government Servants where allegation of corruption is pleaded when there is an explanation offered by the Government Servant, as to why the money was received by him, various Courts have held that if the explanation is probable and reasonable, then the accused has to be acquitted. In this case also, there is an explanation offered by the accused which is more probable than the allegations brought out in the evidence of the prosecution.”
The learned counsel for the respondent further relied upon the Ruling of the Apex Court in the case of T.Subramanian Vs. State of Tamil Nadu, reported in 2006-1-L.W.(Crl) 269, wherein, it is held as follows:-
“Mere receipt of Rs.200/- by the appellant from PW-1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. The evidence no doubt proves that a sum of Rs.200/- was paid by PW-1 to the appellant. But the crucial question is whether the appellant had demanded the said amount as illegal gratification to show any official favour to PW-1 and whether the said amount was paid by PW-1 and received by the appellant as consideration for showing such official favour.The evidence clearly shows the contrary.”
Likewise, the learned counsel also referred to Rulings in the case of Jugal Kishore Vs. State of M.P., reported in 2007 (2) Acquittal 150, wherein, it is held as follows:-
“13. Thus, on overall re-appreciation of the entire prosecution evidence on record, the prosecution has only proved the recovery of the currency notes from the possession of the appellant whereas the prosecution has failed to prove that the appellant/accused has made any illegal demand of bribe money and also accepted it.”
18. Following the above said Rulings, it is clear that the burden is on the prosecution to prove that the accused made a demand and accepted illegal gratification for the work to be done by him. In the case on hand, as stated above, the complainant himself has failed to support the theory of the case of the prosecution and has stated, the contents of the complaint was written as dictated by the Police. Further, the fact of demand of illegal gratification by the accused is not established by clear evidence. In such circumstances, the plea of the prosecution that demand of illegal gratification was made by the accused is not established beyond reasonable doubt.
19. Even though the learned Additional Public Prosecutor contended that the evidence of P.W.2/complainant, turning hostile could be taken into consideration and relied upon the Ruling in the case of Vinod Kumar Vs. State of Punjab reported in (2015) 1 MLJ (Crl) 288 (SC), the evidence before this court, do not support the claim of the prosecution. The trial court has given a clear cut finding after discussing elaborately the evidence placed before it and the reasons stated for disbelieving the case of the prosecution, is based on solid reasoning and appreciation of evidence. No ground is made out by the appellant/State to disturb the finding and conclusion arrived at by the trial court. In such circumstances, the prosecution having failed to prove the guilt of the accused, the criminal appeal has to fail and the point is answered accordingly. In the result, the criminal appeal is dismissed.
20. In the result, this Criminal Appeal is dismissed. The order of acquittal passed in S.C.No.6 of 2006 dated 20.07.2009 is confirmed.
Index:Yes/No 06.01.2017 nvsri
To
1. The Inspector of Police Vigilance and Anti-corruption Kancheepuram Detachment (Crime No.1/2000/AC/KM)
2. The Chief Judicial Magistrate, Thiruvallur.
3. The Public Prosecutor, High Court, Madras
4. The Section Officer, V.R.Section, High Court, Madras.
S.BASKARAN, J.
nvsri Crl.A.No.808 of 2009 06.01.2017 http://www.judis.nic.in