BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.10.2018 RESERVED ON : 08.10.2018 DELIVERED ON : 26.10.2018 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.A(MD)No.284 of 2009 State represented by The Deputy Superintendent of Police, Vigilance and Anti-corruption, Thirunelveli Detachment. (Crime No.15 of 2003). : Appellant/ Complainant Vs. P.Subramanian : Respondent/ Accused PRAYER: Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure, against the Judgment dated 26.06.2009 passed in Special Case No.8 of 2005 by the learned Chief Judicial Magistrate cum Special Judge, Tirunelveli. !For Appellant : Mr.K.K.Ramakrishnan, Additional Public Prosecutor. ^For Respondent : Mr.I.Subramanian, Senior counsel for Mr.R.Anand. :JUDGMENT
The appeal is preferred by the State against the order of acquittal passed by the learned Chief Judicial Magistrate cum Special Judge, Tirunelveli in Special Case No.8 of 2005, wherein the respondent, former Assistant Engineer, Highways, Alangulam Section, has been found not guilty for offences under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 [hereinafter referred to as ‘P.C. Act‘].
2.The gist of the prosecution case is as below:
(i)The respondent P.Subramanian, Assistant Engineer and Chellasamy, Assistant Divisional Engineer, Highways Department, Alangulam Section, for processing the final bill for the works contract executed by Tmt.Indira Sasikala, wife of P.Narayanan, alleged to have demanded Rs.90,000/- each as gratification other than legal remuneration as a motive from P.Narayanan on 29.09.2003. Unwilling to pay the bribe, Narayanan has preferred a complaint to the Vigilance and Anti Corruption Police, Tirunelveli on 03.10.2003.
(ii)The complaint was taken up for investigation against Subramanian, Assistant Engineer and Chellachamy, Assistant Divisional Engineer. According to the complaint, Tmt.Indira Sasikala, was a successful bidder for the highways contract for Rs.68,58,770/-. Based on the work order dated 21.10.2002, the work was executed by September, 2003, by the contractor. The Highways Department has paid part payment of Rs.34,00,000/- and for the balance payment to prepare part and final bill, Subramanian, Assistant Engineer and Chellachamy, Assistant Sub Divisional Engineer, each demanded 3% of the final bill, which works out to nearly Rs.90,000/- each. As an initial payment, Subramanian demanded Rs.30,000/- and the balance to be paid after cheque for final bill is issued. A similar demand was made by Chellachamy also.
(iii)Pursuant to this complaint, Mr.Rajamohan (P.W.13), Inspector of Police, Vigilance and Anti Corruption Department has arranged for trap. Two independent witnesses were asked to be present to oversee the pre-trap proceedings as well as the trap proceedings. In the presence of those two witnesses, two sets of currencies each Rs.30,000/- were smeared with phenolphthalein and entrusted to the de facto complainant, one for Subramanian and another for Chellachamy to be given, if they demand.
(iv)The trap laying officer after preparing entrustment mahazar, proceeded with his team along with the de facto complainant and the shadow witness to Assistant Divisional Engineer office, Highways Department, Pudukkottai and reached the office at about 13.45 hours. The de facto complainant Narayanan and the shadow witness, Sheik Abdul Kadar first met Assistant Divisional Engineer Chellachamy and informed him that he has brought Rs.30,000/- as demanded for which Chellachamy after enquiring about the shadow witness, who accompanied the de facto complainant, told the de facto complainant that he will receive the entire 3% bribe money of Rs.90,000/- as one lot later and he does not want Rs.30,000/- at present.
(v)Thereafter, the de facto complainant and the shadow witness met the Assistant Engineer, Subramanian. When he enquired whether the de facto complainant has brought the money, in response to his enquiry, the de facto complainant answered yes. Then gave it to the accused Subramanian, who took the money in his right hand, shifted it to the left hand and kept the money inside his left side pant pocket. The accused told the de facto complainant that he will prepare the final bill and after encashing the final bill, the balance bribe amount of Rs.60,000/- should be paid to him. The de facto complainant and the shadow witness came out from the accused room and gave the pre-arranged signal to the trap team, awaiting signal.
(vi)Mr.Rajamohan (P.W.13), Inspector of Police, after ascertaining that the accused has received money, enquired the accused. After conducting phenolphthalein test on both hands of the accused, the tainted money of Rs.30,000/- was recovered from the accused, which was kept in his left side pant pocket. The number found in the currency notes recovered from the accused tallied with the number found in the entrustment mahazar. After providing alternate dress to the accused, the pant was recovered and the pocket portion of the pant was subjected to sodium carbonate-phenolphthalein test.
(vii)The solutions were collected separately, labelled and mahazar for the recovery was prepared. The investigation officer after getting the chemical analysis report and sanction to prosecute the accused, had filed the final report.
(viii)The Trial Court based on the records had framed charges under Sections 7 and 13(1)(d) read with 13(2) of P.C. Act for obtaining Rs.30,000/- from Narayanan (de facto complainant) as illegal gratification and for making pecuniary advantage by abusing his official position.
(ix)Before the Trail Court, to prove the charges, the prosecution has examined 15 witnesses and marked 34 exhibits and 3 material objects. In defence, 4 witnesses were examined and 5 exhibits were marked.
(x)The Trial Court after considering the evidence adduced on either side, has held that recovery of Rs.30,000/- from the accused is proved through the deposition of P.W.2, P.W.3 and P.W.13. However, regarding the container of hand wash samples collected, there is contradiction between the mahazar (Ex.P.5), in which it is stated that sample was collected in a glass tumbler. Whereas the chemical analysis report and the evidence of the scientific assistant (P.W.11) indicates that the sample received was in glass bottles. When the mahazar samples collected in glass tumbler, the samples were sent in glass bottles. Therefore, the contradiction in the nature of the container goes to the root of the case, causing doubt whether the solution sent for analysis is the same solution collected during the trap proceedings. The Trial Court also pointing out the delay in forwarding the pre-trap mahazar and recovery mahazar to the Magistrate, has expressed suspicion about the genuineness of these documents.
(xi)The Trial Court has also suspected the reliability of the trap laying officer (P.W.13) evidence. The contradiction in the prosecution witnesses regarding the name of the trap laying officer whether it was Ponnudurai or Rajamohan has been pointed out by the Trial Court as a very serious contradiction, which is fatal to the prosecution. Further, the defence version for receipt of the money from P.W.2 towards Small Savings Scheme and Flag Day donation, has been accepted as a probable explanation to rebut the presumption against the accused for the possession of the tainted money. For the above said reasons, the Trial Court has acquitted the accused from the charges.
3.Aggrieved by the said order of acquittal, the State has preferred appeal on the ground that the order of acquittal is improper, illegal and perverse. The Trial Court has erroneously doubted the case of the prosecution without any good reason. The alleged reasons stated by the Trial Court to disbelieve the case of the prosecution are very trivial and it does not go to the root of the prosecution case. While the prosecution has proved the demand, acceptance and recovery through the de facto complainant (P.W.2), shadow witness Sheik Abdul Kadar (P.W.3), Kulam (P.W.4) and Gnanamuthu (P.W.5) without considering the reliability and the evidentiary value of these witnesses, coupled with the recovery mahazar and scientific expert’s opinion, the Trial Court has magnified minor lapses and contradictions as very serious contradictions, touching upon the prosecution case.
4.It is pointed out by the learned Additional Public Prosecutor that the accused admits that he received Rs.30,000/- from P.W.2, but it was towards Small Savings Scheme and Flag Day donation. To emphasis the said explanation, he has relied upon the communication issued by the District Collector regarding Small Savings Scheme collection. These documents do not have any relevancy to the explanation. They are the communications by the office of the District collectorate regarding the manner and target for collecting Flag Day donation.
5.It is also pointed out by the learned Additional Public Prosecutor that there is a specific direction issued to all Government staff that Small Savings Scheme collection cannot be received in cash and the target fixed for collecting Flag Day donation was only Rs.30,000/-, even according to the defence. While so, collecting Rs.30,000/- from one contractor towards Flag Day donation, which is the target fixed, per se sufficient to hold that the explanation is only an ipse dixit explanation. While the Trial Court has rightly held that the recovery of the tainted money from the possession of the accused is proved, the contradiction regarding the container of the hand wash solution and pant wash solution collected to prove the presence of phenolphthalein, does not carry much significance. Therefore, the contradictions regarding the container cannot be a factor to disbelieve the case of the prosecution. More particularly, when the accused accepts the recovery of tainted money from his possession and the Trial Court has also recorded that there is no doubt in the recovery of tainted money from the possession of the accused. Since the deposition of P.W.2, P.W.3 and P.W.13 are cogent and there is no contradiction, the Court below ought not to have acquitted the accused.
6.The learned Additional Public Prosecutor would further point out that having proved the demand and acceptance of gratification through P.W.2 and P.W.3 coupled with recovery of the tainted money from the possession of the accused, the Trial Court ought to have drawn presumption under Section 20 of P.C. Act. The explanation offered by the accused is disproved through his own evidence and therefore the order of the Trial Court order is liable to be set aside.
7.Per contra, the learned senior counsel appearing for the respondent/accused would submit that there is no error or illegality in the finding of the Trial Court, whereas the entire prosecution case and evidence bristles with infirmity and contradictions. Pointing out that the complaint (Ex.P.2) given by Narayanan (P.W.2) is not only against the respondent Subramanian, but also against Chellachamy, Assistant Divisional Engineer. Both P.W.2 and P.W.3 have specifically stated that on 03.10.2003 first they met Chellachamy and offered Rs.30,000/- to him. However, he declined to receive it and told P.W.2 that he will receive the entire Rs.90,000/- in one lumpsum at a later point of time. This piece of evidence is sufficient to array Chellachamy as one of the accused in this case for the offence underSection 7 of P.C. Act. However, the prosecution has neither arrayed him as an accused nor as an witness to prove the case that on 03.10.2003, P.W.2 and P.W.3 came to the office of the accused at the said time. Further, according to the prosecution, two sets of Rs.30,000/- each smeared with phenolphthalein and entrusted to P.W.2. While, one set of Rs.30,000/- is alleged to be recovered from the accused, the remaining Rs.30,000/- which was entrusted to the de facto complainant, has not seen the light of the day. Atleast, the trap laying officer should have drawn a mahazar in respect of this Rs.30,000/- which was meant for Chellachamy. Under these circumstances, the falsity in the prosecution has prompted the Trial Court to acquit the accused for want of proof.
8.The case of the prosecution is that P.W.2 has taken a road contract in the name of his wife for Rs.68,58,770/-. He has already been paid Rs.34,00,000/- towards part payment. Admittedly, for that payment, the accused has not demanded any bribe. While so, it is highly unbelievable that the accused as well as the Assistant Divisional Engineer Chellachamy demanded 3% of the final bill. The Trial Court has recorded this as one of the reasons to acquit the accused. The previous conduct of the accused is relevant so far as P.C. Act is concerned. In fact, if the trap laying officer had made a preliminary enquiry about the credibility of the complainant as well as the credential of the accused, he would not have ventured to lay a trap.
9.The learned senior counsel appearing for the respondent/ accused would also submit that while the trap proceeding commenced at 13.45 hours on 03.10.2003 and completed at 14.45 hours, neither the pre-trap mahazar nor the post-trap mahazar was sent along with the remand report. The delay in forwarding the records has been taken note by the Trial Court and it is one of the reasons why the learned Judge has disbelieved the case of the prosecution.
10.Regarding the sanction to prosecute the accused, the learned senior counsel appearing for the appellant/accused pointing out the sanction order marked as Ex.P.1, would submit that the sanction order which refers two reports of Directorate of Vigilance and Anti Corruption, one dated 18.02.2004 and another dated 11.10.2004, creates grave doubt whether he really applied his mind and accorded sanction after perusing all the records. In support of the said submission, the learned counsel appearing for the respondent/accused would point out in Ex.P.1 and say the sanction order reads that, ?the act of the said Subramanian constitutes offences punishable under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act read with Section 34 IPC?. When the prosecution is against the sole accused, the sanctioning authority has stated that his act attracts Section 34 IPC along with Section 7 and 13(1)(d) of P.C. Act. If he had really perused the First Information Report along with the statements of witnesses and the accused and other connecting records, he would not have included Section 34 IPC.
11.P.W.3 in his deposition admits that he did not sign the mahazar on the day of trap, but on the next day of trap, i.e., on 04.10.2003. The first demand of bribe as per the prosecution witnesses is on 29.09.2003 at about 10.30 a.m. at the Highways Department Office, Pudukkottai. Whereas, Kulam (P.W.4), who is the Record Clerk to the Highways Department working with the accused, has categorically stated that on 29.09.2003, he and the accused left the office at 10.15 a.m to the State Bank of India to encash the cheque dated 26.09.2003 for Rs.55,097/- and returned to the office at about 11.15 a.m. It is the specific testimony of P.W.4 that on 29.09.2003, he and the accused were not in the office. The said alibi unimpeached and indicates the content of the complaint alleging demand of bribe on 29.09.2003 by the accused at 10.30 a.m. in the Highways Office proved to be utter false.
12.The learned senior counsel appearing for the appellant/ accused would also refer to the Judgments of the Hon’ble Supreme Court which would say that on considering an appeal against acquittal, when two views are reasonably possible, the finding of the Trial Court should not be disturbed. Therefore, sought for dismissal of the appeal.
13.Having considered the rival submissions made by the learned counsels on either side and perusal of the records, the short point involved in this case is whether the explanation offered by the accused for the receipt of Rs.30,000/- from P.W.2 and believed by the Trial Court is a plausible explanation to rebut the presumption against him under Section 20 of P.C. Act?
14.It is now well settled by catena of Judgments that mere recovery of tainted money from the public servant will not be sufficient to presume that the money received by him is an illegal gratification. There must be some facts to substantiate that the money so recovered was received by the accused on demand or with the knowledge that the money he has obtained is towards gratification other than legal remuneration as a reward or motive.
15.According to the complaint which is marked as Ex.P.2 in respect of a contract for Rs.68,58,770/-, the de facto complainant has completed the work and received Rs.34,00,000/- towards part payment. The last and final payment was pending since September, 2003. According to the complainant, during the end of September, 2003, he has met the accused and requested him to prepare the final bill and forward the same to Divisional Engineer’s office.
16.The specific case of the complainant is that on 29.09.2003 at about 10.30 hours, he met the accused, who demanded 3% of the final bill amount of Rs.30,00,000/-. When the complainant has said that he does not have that much of money, the accused has demanded atleast 1% which works out to Rs.30,000/- and to pay the balance after encashing the cheque. It is also specifically stated in the complaint that the accused told that the bribe money should be paid on 03.10.2003 at 01.00 p.m. Since he had no other alternate, he agreed for it. Thereafter, the accused told the complainant to meet the Assistant Divisional Engineer, Chellachamy. When P.W.2 met the Assistant Divisional Engineer Chellachamy, who occupies the next room of the accused. Chellachamy also demanded Rs.30,000/- as first instalment and balance Rs.60,000/- after encashing the cheque. He also directed the complainant to bring the money on 03.10.2003 at 1 O’ clock. The testimony of P.W.2 is almost similar to his complaint.
17.P.W.2 was examined in chief on 11.09.2007 and cross-examination was deferred on that day. He was recalled on 04.05.2009. In the cross- examination, he admits that on previous occasion when he received the part payment through two cheques, the accused did not demand any commission. On 29.09.2003, when he went to Assistant Divisional Engineer office, he took his assistant along with him and he does not remember whether the accused was in the office on that day. He left his assistant in the office and returned back to attend his real estate business.
18.Mr.Kulam (P.W.4), Record Clerk in his deposition had stated that on 29.09.2003 between 10.15 a.m. to 11.15 a.m., he and the accused were not in the office and they went to State Bank of India to encash cheque. Therefore, the case of the prosecution that on 29.09.2003, P.W.2 met the accused and Chellachamay and discussed with them regarding final bill settlement and in the course of the discussion, the accused as well as Chellachamy individually demanded 3% of the bill amount as commission, is found to be a false allegation. Based on this false allegation, the complaint (Ex.P.2) had been registered and trap has been laid.
19.P.W.3 is the witness who has been called by the trap laying officer to accompany the de facto complainant during the trap. According to him, P.W.2 produced sixty 1000 rupee currency notes for the trap. They were smeared with phenolphthalein. Thirty currencies were kept in the left side safari pocket of the de fact complainant and another thirty currency notes were kept in the right side safari pocket. When one set of currency entrusted to P.W.1 has been recovered under mahazar, there is no evidence about the remaining Rs.30,000/-. This may not be of much significance had there been no evidence against Chellachamy. The trap laying officer has miserably failed to explain why he has not arrayed Chellachamy as an accused or examine him as a witness, when the complaint as well as the evidence of P.W.2 and P.W.3 in unison indicates that Chellachamy also demanded illegal gratification of Rs.30,000/-. If he did not receive the money and postponed the receipt of the money for a future date, then the money should have accounted for properly.
20.There is a specific direction and instruction to the officials that cash cannot be collected towards Small Savings Scheme. Therefore, the explanation offered by the accused for receiving Rs.30,000/- from the de facto complainant, towards Small Savings Scheme does not go in consonance with the instruction of the Government. However, the Trial Court had observed that though it may be in violation of the instruction, the receipt of the money towards Small Savings Scheme is probabilised and that benefit to be given to the accused in the light of other lapses in the prosecution case.
21.Though this court is unable to subscribe the view taken by the Trial Court in this regard, the falsity in the complaint regarding the first demand on 29.09.2003 and the other contradictions highlighted by the defence as well as pointed out by the Trial Court, forces this Court not to unsettle the order of acquittal. Therefore, this Criminal Appeal is liable to be dismissed.
22.In the result, this Criminal Appeal is dismissed and the order of acquittal dated 26.06.2009 passed in Special Case No.8 of 2005 by the learned Chief Judicial Magistrate cum Special Judge, Tirunelveli is confirmed.
1.The Chief Judicial Magistrate cum Special Judge, Tirunelveli.
2.The Deputy Superintendent of Police, Vigilance and Anti-corruption, Thirunelveli Detachment.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.