Madras High Court
S.Sivakumar vs For on 4 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 04/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)No.189 of 2016
S.Sivakumar : Appellant/Sole Accused
Vs.
State through
The DSP, Vigilance and Anti Corruption,
(V & AC), Ramanathapuram,
For the DSP, V & AC, Tirunelveli,
(Crime No.7 of 2002)
Prayer: Criminal Appeal is filed under section 27 of
the P.C Act r/w section 374(2) of the Criminal Procedure
Code to set aside the conviction and sentence passed
against the appellant by the Special Judge for Prevention
of Corruption Act cases, Tirunelveli, in Special Case No.
31 of 2014 on 13/05/2015.
For Appellant : Mr.P.Ezhil Nilavan
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
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2
J U D G M E N T
This Criminal Appeal is preferred against the order
of conviction and sentence passed against the appellant
by the Special Judge for Prevention of Corruption Act
cases, Tirunelveli, in Special Case No.31 of 2014, dated
13/05/2015.
2.The case of the prosecution in brief, as narrated
through the evidence:-
PW2 is the de-facto complainant. He is a resident
of Puliyankudi Village. He constructed a house in the
above said village in 2003. He was granted service
connection in serial No.179, on 18/01/2005. The Tariff
was assigned as '1'. He was continuously paying the
charges for 10 months. All of a sudden, it was changed as
Tariff No.5. So he made a request to the Junior Engineer,
Tamil Nadu Electricity Board, Puliyankudi, on 29/04/2005.
But there was no action on his request. So he made a
personal enquiry. At that time, he was told that his
request was recommended for further action by the
Assistant Executive Engineer.
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3.In pursuance of the above said advise, on
10.01.2006, he approached the accused and made an
enquiry. At that time, the accused demanded Rs.1,000/-
for passing order. He also asked him to pay the same, on
12/01/2006. He went to the house and had a thinking. He
was not willing to pay the bribe. So, on the next day
morning, he went to the Vigilance Department office
namely the first respondent herein and made a complaint
in writing. In pursuance of the above said complaint, he
also produced a document showing the service connection
and requisition etc., which were marked as Exs.P1 to P4.
The complaint is marked as Ex.P5. On the invitation made
by the respondent police, one Sivasubramanian and
Abubakkar Sidhik came to the office and they were
introduced mutually by the Vigilance Inspector and
subsequently, trap arrangements were made. The currency
notes numbering about 2 in the denomination of Rs.500/-
were handed over by him and the Vigilance Inspector made
a preparation, smeared the currency notes with the sodium
bicarbonate and demonstration was also undertaken and the
trap was prepared and instruction was given to him to
give a signal on demand and payment of money to the
accused. As per Ex.P7, Mahazar, the entire team started
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from the Vigilance office and directly went to the
accused office. As per the prior instruction and advise
given, PW2 went along with the witness Sivasubramanian
and contacted the accused. He made an enquiry and at that
time, he asked PW2, whether he brought the money. PW2
handed over the money, which was received by the accused
with two hands, counted the same and put it in his right
hand Safari Shirt pocket. PW2 came out of the office and
made a signal. On seeing the signal, the police party,
the witness Abubakkar Sidhick came to the office. PW2
identified the accused and he was sent out. On the next
day, he was examined by the Deputy Superintendent of
Police.
4.As narrated by PW2, PW3 Sivasubramanian on the
invitation made by the respondent police, visited the
Vigilance office at 2.30 pm, on 12/01/2006 and as
narrated by PW2, pre-trap arrangement examination was
undertaken as per the procedure. He also signed in the
mahazar, that was prepared showing the currency notes
etc. As advised and as instructed by the Inspector of
Police, he went along with the police team to the office
of the accused and as instructed and advised, he
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accompanied PW2 to the office of the accused and at that
time, the accused demanded money from PW2 as to whether
he brought the same. PW2 handed over the money and the
accused received the same and put it in the pocket and
further proceedings were undertaken by the Inspector of
Police, who was examined as PW4. PW4 corroborated PW2 and
PW3 over the pre-trap arrangement and other proceedings
as per the procedure.
5.After handing over the money and after showing the
signal, PW4 went inside the office of the accused along
with the police team and the accused shocked to see them.
He prepared sodium bicarbonate solution and asked the
accused to dip his right hand finger. The solution turned
pink colour. Similarly in the another solution, his left
hand fingers were also directed to be dipped and it
turned pink colour. PW4 collected the samples and sealed
it. On enquiry, the accused admitted that he received the
amount and handed over the currency notes. PW4 compared
the currency note numbers with the observation mahazar
already prepared in the Department. It found tallied.
The shirt was also taken and that was also dipped into
the sodium bicarbonate solution. It also turned pink
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colour. That solution was also collected, sealed and
labelled. On enquiry, the accused further informed that
he forwarded the application of PW2 to the concerned
Officer after making recommendation. On going through the
records, it was found that the application was received
on 29/09/2005. Later the accused was arrested and
remanded to judicial custody.
6.Further investigation was undertaken by PW15, the
then Deputy Superintendent of Police. On information from
the Inspector of Police Rajamohan, he went to the office
of the accused, arrested him and made a search in the
house of the accused, took up further investigation,
recorded the statement of the witnesses, submitted the
documents as well as the samples before the concerned
court for further process. PW16-Joseph took up the
further investigation and during the course of further
investigation, he was told that the request made by PW2
for transfer of tariff was found missing. He was also
informed that the accused is the main culprit for having
hidden the request of PW2. So he further recorded the
statement of the witnesses. After completing the
formalities of investigation, he filed a final report, on
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21/11/2007 stating that the accused has committed the
offences under sections 7, 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act and section 201 IPC.
7.PW5 was examined on the side of the prosecution to
show that samples were collected during the course of
trap. PW6 has spoken about his role with regard to the
request that has been made by PW2. He was working as a
Commercial Assistant in TNEB during the relevant period.
The application that was made by PW2 was forwarded to him
by the accused and he made a special visit and prepared
the estimate and submitted the proposal. After the
approval, it was forwarded to the Assistant Executive
Engineer. From PW2, Rs.1,500/- charge was collected and
again it was submitted to the Assistant Executive
Engineer. After completing the official formalities,
recommendation was made by the Assistant Executive
Engineer to change the tariff. But he has not received
any official order from the Assistant Executive Engineer.
So during that time, it was pending before the Assistant
Executive Engineer office.
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8.PW7 has spoken about the recommendation that was
made by him, on the basis of the report submitted by PW6
to change the tariff. But later after 15 days, the same
was returned for making fresh inspection. On enquiry made
by PW2, he informed that he already made a recommendation
to the Assistant Executive Engineer for changing the
tariff. On 10/01/2006, he made conversation and during
the conversation with the accused, he asked him to send a
proposal so that the tariff can be changed. He has not
received the official order.
9.PW8 has spoken about the entry that was made by
him in the office register and about the request made by
PW2. In the volume, serial No.14, he made an enquiry.
But in the enquiry, the Assistant Executive Engineer has
made a note that he has returned the proposal.
10.PW9 has spoken about the occurrence that took
place, on 12/01/2006. At that time, at about 5.00 am, he
was talking with the accused. At that time, PW2 came to
the office and on enquiry, he was informed that PW2
visited the office with regard to the request of change
of tariff. But PW9 was treated hostile.
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11.PW10 has spoken about the work that was
undertaken by him in the house of the accused and he also
signed in the inspection report.
12.PW11 has spoken about the inspection that was
made by him, on 07/03/2006 in the house of PW2. At the
time of inspection, he found that the service connection
given to the house of PW2 was only for domestic purpose.
So, he made a recommendation to change the tariff, based
on which, the Assistant Executive Engineer, Puliyankudi
ordered to change the tariff. The file, which was
attended by him was marked as Ex.P18.
13.PW12 has spoken about the estimate that was
submitted to the Assistant Executive Engineer, over the
transfer of tariff. According to him, the proposal of
tariff was sent, on 27/11/2004. The letter was returned
by the Commercial Inspector, Mari Durai, in which the
accused, who was working as the then Assistant Executive
Engineer signed and that was approved by the then
Assistant Executive Engineer by name Balaraman.
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14.PW13 has spoken about the inspection that was
made by him, on the basis of the recommendation made by
the Assistant Executive Engineer Kala, over changing of
tariff.
15.After completing the prosecution witnesses, the
accused was put up under section 313 Cr.P.C proceedings
and he denied the incriminating evidence that were let by
the prosecution. On the side of the accused, one
Kalyanasundaram was examined as DW1 and he has stated
that during the relevant time, he was working as
Assistant Executive Engineer (Distribution) and he knew
the signature of the accused. Ex.D1 is the letter written
by him, on 21/02/2005. It was informed to him that PW2
used the electrical service connection for commercial
purpose. So on that ground, he made a recommendation to
take action. So the accused ordered to change the tariff
to file. Ex.P24 is the entry that was made by him during
his Inspector. During the course of investigation, he was
also examined by the Deputy Superintendent of Police.
With this the defence side evidence was over.
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16.After hearing the argument of the prosecution and
the defence and on going through the evidence on record,
the trial court recorded the finding of guilt under
sections 7, 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act and the accused was sentenced to undergo
three years rigorous imprisonment for the offence under
section 7 of the Act and the same period for the offence
under section 13(2) r/w 13(1)(d) of the Act and in
respect of the offence under section 201 IPC, he was
acquitted.
17.Challenging the conviction and sentence, the
accused as appellant is before this court by way of this
criminal appeal.
18.Heard both sides and the records were perused.
19.The appellant/accused has been found guilty the
charges under sections 7 and 13(2) r/w 31(1)(d) of the
Prevention of Corruption Act. In respect of the offence
under section 201 IPC, the trial court has recorded the
finding of not guilt and he was acquitted. Against which,
no appeal was preferred by the prosecution. So it stands
as it is.
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20.Now the charge under sections 7 and 13(2)(r/w
13(1)(d) of the Act alone is required to be discussed and
answered.
21.It is not in dispute that the appellant was
working as Assistant Executive Engineer at the relevant
time in the Tamil Nadu Electricity Board in the office of
Puliyankudi. But during the course of argument, the
learned counsel appearing for the appellant has made an
attempt to say that in the Department of Electricity
Board, there is no such post of Assistant Electrical
Engineer. There is no post like Divisional Engineer.
However, it was not disputed by the appellant that at the
relevant time, he was working as Assistant Executive
Engineer. He has also not disputed that he dealt the
request made by the PW2 for change of tariff from 5 to 1.
22.From the documentary evidence on record as well
as the oral evidence, it is seen that originally, PW2
constructed a house in his village. So he was provided
with electricity connection in respect of domestic use,
which was coming under tariff '1'. During the course of
inspection, as narrated in the preamble portion, he was
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found using the same for agricultural purpose only. So on
the recommendation made by the officials, the accused has
ordered to change the tariff from 1 to 5. Later, PW2 made
a request to reverse the tariff by reconsidering the
request, since according to him, he used the electricity
connection for agricultural purpose only. So on the basis
of the request, proceedings were undertaken to make a
local visit, prepared the report, proposed approval etc.
So these are all the official usual procedures, as has
been narrated during the course of evidence. As mentioned
in the preamble portion, we need not concentrate much
upon the details with regard to the date of inspection,
proposal and sanction date, etc. These things are not
disputed and denied by the appellant. So, we can directly
go to the main issue.
23.As per the charge, for making order to change,
tariff from 5 to 1, the accused said to have demanded Rs.
1,000/- as bribe, on 10/01/2006. According to the
prosecution, the request was pending from 20/07/2005.
PW2 paid the amount on 12/01/2006 at about 5.20 pm in the
office of the accused as per the demand.
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24.A simple defence, that has been raised by the
accused is that according to him, there was enmity
between him and PW2, since on the previous occasion only
he made the change of tariff from 1 to 5. According to
him, this is the previous motive. The friend of the
accused by name Eswaran gave a complaint against PW2,
which was registered in Crime No.213 of 2013 for the
offences under sections 294(b), 323 and 506(ii) IPC and
the above said Eswaran is the friend of the accused. So
because of the complaint also, he had enmity. But these
two enmities, prima facie are remote. There is no
evidence on record to show that the above said Eswaran
made a complaint only at the instance of the accused and
so PW2 was inimical towards the accused. The original
tariff change was made by the accused and that is the
reason for enmity. This is also not possible. The reason
being that, it is usual official work undertaken by the
accused, on the basis of the recommendation made by the
Department officials, as narrated above. So naturally
that would not create any enmity.
25.Now coming to the prosecution case, as mentioned
earlier, the appellant/accused made a demand
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specifically, on 10/01/2016. Except the oral evidence of
PW2, there is no corroborative evidence to sustain the
prosecution case, the demand must be specifically proved.
26.As mentioned above, with regard to the demand, on
10/01/2006, except the oral evidence of PW2, there is no
other corroborative evidence. So, we can skip that
evidence. Next, the demand is on the date of trap, that
is on 12/01/2006. According to the prosecution, PW2 and
PW3 are categorical and clear in their evidence that as
per the direction of the trap laying officer, they went
inside the office of the accused. At that time, the
accused demanded money and PW2 gave the money and that
was accepted by the accused.
27.According to the defence, on the date of the
above said alleged demand as well as acceptance, the file
was already returned by him to make a fresh inspection.
For that purpose, they would straightaway rely upon the
entry made in the dispatch register (Ex.P14). The
relevant entry is available in serial No.14, wherein we
find that the date of receipt of the request is
29/07/2005. The date of inspection was made on the same
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day, namely 29/07/2005 and the fee amount of Rs.125/- was
ordered to be collected. In the column, the approval
signature was scored off and the accused made a note that
the file is returned for want of field inspection report
by the Assistant Executive Engineer. But the date is not
available. From the endorsement, it is seen that the file
was already returned for want of field inspection report.
But as per the register, field inspection was undertaken,
on 27/09/2005 itself. The date of sending the same to the
accused is not available. But from the seal, we can find
that it was sent to him before 21/04/2005.
28.Now coming back to the date of demand, on
10/01/2006, according to the defence, it was returned for
want of field inspection report, on 31/01/2005 itself and
so completely, there was no occasion for demanding bribe
on 10/01/2006. Next demand on 12/01/2006. According to
the accused, this important aspect was not noted by the
sanctioning authority, who was examined as PW1.
29.The learned Additional Public Prosecutor would
submit that no doubt, it was returned for want of field
inspection report and final approval has to be made only
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by the accused. So, the file deemed to have been pending
with him. So the demand that was made by him was natural.
But on this specific point, the learned counsel appearing
for the appellant/accused relied upon the judgment of the
Hon'ble Supreme Court in the case of Union of India
through Inspector, CBI Vs. Purnandu Biswar [(2005)12 SCC
576]. Even though in criminal cases, facts will differ,
the appellant wants to draw the analogy from the above
said facts. In that case also, on the date of demand, no
proposal was pending with the accused for releasing the
vessel. There is no charge by the prosecution that he was
continuing the demand in respect of the order of release
of the vessel on the date of payment. So on that ground,
the entire prosecution was doubted. He wants to draw the
very same analogy and make observation in this case also.
30.No doubt, PW1 has not taken note of this
important aspect. Now, we will go to the evidence of PW1
on this aspect. He is very clear in his evidence that he
has not seen the register. So this is the lapse on the
part of PW1 in granting sanction. The Investigating
Officer ought to have placed all the records for
scrutiny. That was not done. But whether this will affect
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the entire prosecution case is the next question for
consideration. We will come back to this issue later. Let
us go to the pre-trap event.
31.PW2 has stated that on 12/01/2006, he went to the
Vigilance Department office and lodged a complaint. The
amount was received by PW4, the then Inspector of Police,
attached to the Vigilance Department. PW4 would state
that on 12/01/2006 at about 10.45 am, PW2 came to his
office and lodged a complaint. He also registered a case,
on the basis of the complaint given by PW2. During the
course of cross examination, one important factor has
been brought on record. The complaint was signed in
English language. In the complaint, the initial 'K' has
been scored off. So, at this juncture, the learned
counsel appearing for the appellant/accused has made an
argument that as noted above, there is no category or
post as 'Divisional Engineer' in the Electricity Board.
But in Ex.P5, he has mentioned that Sivasubramanian was
working as Divisional Engineer. So according to the
appellant/accused, he was not the person, who was holding
the post of Divisional Engineer at that time. So
according to him, he was misidentified. PW4 has given
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explanation to the effect that PW2 identified the
accused. So, the argument on the side of the
appellant/accused that there was misidentification is
not acceptable.
32.Now coming back to the correction in the
complaint, PW2 would say that for what reason, the
initial 'k' was scored off, could not be remembered by
him. So how the correction was made and who made the
correction is not clear on record. It is nothing, but an
un-authorised correction made by the complainant. It
creates doubt, then who prepared the FIR and whether
mistake has been committed and who recorded the statement
of PW2, and whether on the basis of the statement of the
complaint given by PW2, the FIR was registered, scored
off and later, it was corrected as written complaint. So
in the light of the correction, that has been made in the
complaint, doubt has been created by the accused stating
that no original complaint was given by PW2. Even though
this is a small mistake, which has been done during the
course of writing the complaint, it is seen that it is
the un-authorised correction. PW2 is clear in his
evidence that he has not made any correction.
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33.Let us go to the evidence of PW2 on this aspect.
It has been stated by him that he has not mentioned the
initial of the accused. He simply mentioned his name and
who made the initial and later, who scored off the
initial was not known to him. It is not known whether
this correction has been made without any authorisation
or previous complaint correction. But instead of that,
the correction has been initialed not by PW2, but by some
other, probably PW4 would have made the correction both
in the complaint as well in the FIR.
34.In case of criminal prosecution, the complaint is
the foundation for initiation of the proceeding and it
must be free from doubt, manipulation or corrections,
etc. Correction can be made, if at all only by the author
concerned and not by the Investigating Officer, police
official or any other third party without the
authorisation or consent of the complainant. Even though
the identification of the accused is not questioned here,
the un-authorised correction made in the complaint
creates doubt, as to whether Ex.P5 is the original
complaint, which was given by PW2. This case must be eye
opener to the Police that they should not make un-
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authorised corrections in the complaint. So this court
cannot take it, as lightly that it is a simple or small
mistake and this court has to view it very seriously. How
many persons, who made the corrections in the initial is
also not known. This will amount to manipulation of the
complaint, which is not permissible in the criminal
prosecution. This manipulation itself is sufficient
enough to throw the prosecution case out of the Court.
35.In view of the above manipulation of the original
complaint, subsequent trap proceedings and the recovery
of money from the accused deserve no merit. So on that
sole ground, I am of the considered view that the entire
prosecution case must be doubted.
36.Now coming back to the sanction order, PW1 has
also failed to note the two factors on the date of the
alleged demand and trap. The file was not available with
him. He already returned the same. Without properly going
through the main document, he has given sanction. So it
shows that he has not applied his mind properly,
scrutinized all the records and this does not satisfy the
requirement of law, which is expected of an authority,
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who sanctioned the prosecution. On that ground also, the
prosecution must fail.
37.Further perusal of the original complaint also
shows so many corrections and some of the words namely
complaint was lodged by him, has been scored off and in
that place, it has been stated as a present complaint is
given. In respect of this correction, there is no proper
explanation on the part of the prosecution. The same
person, who has made initial correction in the initial
'k' also made initial.
38.As mentioned earlier, PW4 was not in a position
to inform the court the person, who made the corrections.
As mentioned earlier, such sort of manipulation in the
original complaint is not permissible under criminal
justice delivery system, otherwise called as
prosecutorial manipulations. As mentioned earlier, this
correction should not be taken slightly as mere clerical
mistake. Because PW2 was very categorical in his evidence
that he prepared the original complaint in his house.
Then how the corrections were carried out is not clear on
record. Probably, it must have been corrected either
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after registration of the FIR or after the complaint
given by PW2 by some other persons. As mentioned earlier,
this goes to the root of the prosecution case and the
prosecution has failed because of this manipulation. When
the initiation of the proceedings is doubted, the
subsequent event that is preparation of trap and trap
proceedings etc., have also to be viewed as doubtful.
39.In the result, the criminal appeal is allowed;
the conviction and sentences imposed on the
appellant/sole accused is set aside and he is acquitted
from all the charges. Fine amount already paid, if any,
shall be refunded to him and the bail bond, if any
executed, shall stand discharged.
04/04/2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
Note :
In view of the present
lock down owing to
COVID-19 pandemic, a web
copy of the order may be
utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
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G.ILANGOVAN, J
er
To,
1.The Deputy Superintendent of Police
(Vigilance and Anti Corruption),
(V & AC), Ramanathapuram,
Tirunelveli.
2.The Special Court for Prevention of
Corruption Act cases,
Tirunelveli.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.A(MD)No.189 of 2016
04.04.2022
https://www.mhc.tn.gov.in/judis
