R.Sudarsan vs The Deputy Superintendent Of ...
2022 Latest Caselaw 8342 Mad

                                                               1            Crl.A(MD)No.167 of 2016

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                        Date : 21.04.2022

                                                            CORAM


                                    THE HONOURABLE MR. JUSTICE G.ILANGOVAN

                                                 Crl.A(MD)No.167 of 2016


                     R.Sudarsan                                    : Appellant/Sole    Accused

                                                               Vs.


                     The Deputy Superintendent of Police,
                     Vigilance and Anti Corruption,
                     Sivagangai District.
                     (Crime No.5 of 2002)       : Respondent/Complainant



                     Prayer: Criminal Appeal has filed under 374(2) of the
                     Criminal Procedure Code to call for the records relating
                     to the judgment in Spl.Cc.No.7 of 2014, dated 28.04.2016,
                     on      the     file   of    the    Special       Court   for   Prevention       of
                     Corruption Act Cases, (Sub Court), Sivagangai, and set
                     aside the same.



                                  For Appellant            :       Mr.M.Suresh Babu

                                  For Respondent           :       Mr.R.Meenakshi Sundaram

                                                                   Additional Public Prosecutor




https://www.mhc.tn.gov.in/judis
                                                                    2               Crl.A(MD)No.167 of 2016


                                                                   JUDGMENT

This Criminal Appeal is preferred against the

judgment of conviction and sentenced passed by the

Special Court for Prevention of Corruption Act Cases,

(Sub Court), Sivagangai, in Spl.C.C.No.7 of 2014, dated

28.04.2016, by which, the appellant was convicted and

sentenced to undergo 2 years of Rigorous Imprisonment and

to pay a fine of Rs.1000/-, in default, to undergo 6

months Rigorous Imprisonment for the offence punishable

under Section 7 of the Prevention of Corruption Act,

1988; to undergo 2 years Rigorous Imprisonment and to pay

a fine of Rs.1000/-, in default, to undergo 6 months

Rigorous Imprisonment for the offence punishable under

Section 13(2), r/w 13(1)(d) of the Prevention of

Corruption Act, 1988, and directed the above sentences to

run concurrently.

2.The case of the prosecution:-

P.W.2 lodged a complaint with the first respondent

stating that the appellant, who was working as Commercial

Inspector in Tamilnadu Electricity Board, Salaigramam,

Sivagangai Distrct, demanded a sum of Rs.500/- for the

purpose of giving service connection to the brother-in-

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law house of P.W.2. In pursuance of the complaint lodged

by him, a case was registered in Crime No.5 of 2002 by

the respondent and a trap was laid while this appellant

accepted the bribe amount of Rs.300/-. Based upon that,

investigation was undertaken and a final report was also

filed before the Special Court for Prevention of

Corruption Act Cases, (Sub Court), Sivagangai, which took

cognizance in Spl.C.C.No.7 of 2014 and framed the

following charges against the accused.

3.Charge against the accused person:-

(i) The first charge against the accused person,

appellant herein is that he was working as Commercial

Inspector in the Tamilnadu Electricity Board,

Salaigramam, Sivagangai. On 27.02.2002, he made an

inspection, in pursuance of E.B services connection

application given by one Karthikeyan and for the purpose

of preparing the estimate, he demanded a sum of Rs.500/-

from one Angusamy, who is the relative of the above said

Karthikeyan and the appellant received Rs.300/- from him

on 12.03.2002 at about 11.30 a.m. After receiving the

amount, he handed over the same to one Susaimuthu and

thereby, the appellant had committed the offence

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punishable under Section 7 of of the Prevention of

Corruption Act, 1988.

(ii) The second charge is that since he demanded and

accepted of bribe amount of Rs.300/-, he has committed

criminal misconduct and thereby, he is liable to be

punished for the offence under Section 13(2) r/w 13(1)(d)

of the Prevention of Corruption Act, 1988.

4.On the basis of the complaint given by P.W.2, the

defacto complainant, a case was registered. After laying

a trap, the accused was arrested and after completing the

formalities of investigation, final report was filed

before the Trial Court, which was taken cognizance in

Spl.Cc.No.7 of 2014, in which, charge was framed after

completing the formalities by the Trial Court. The

accused namely, the appellant herein denied the charges

and claim to be tried.

5.In pursuance of the above said plea, the

prosecution has examined 14 witnesses and marked 31

documents, apart from 9 Material Objects. On the side of

the accused, none was examined and no document was also

marked.

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6.The case of the prosecution as narrated through

the evidence:-

P.W.2 is the defacto complainant, who is a resident

of Varavani. His brother-in-law's name is Karthikeyan.

During the period of occurrence, the above said

Karthikeyan was in Andaman and he built a tiled house in

Keerakudi. Wiring work was done in the house through the

Wiring Contractor called one Subramanian. For the purpose

of applying for service connection, he prepared a form

and sent same to the Andaman, wherein, the above said

Karthikeyan put his signature. After receiving the form

signed by the above said Karthikeyan, he along with the

above said Wiring Contractor, handed over the form to the

accused on 18.02.2002. The amount was also remitted on

19.02.2002. After 10 days, he made an enquiry with the

above said Contractor Subramanian about the service

connection. At that time, he told that the accused has

delayed the process. So, he approached one Sekar, who was

working as Assistant Engineer. He advised him to lodge a

complaint before the Vigilance Department, Sivagangai

District, and he also took him to the Vigilance office.

As per the dictation made by the Deputy Superintendent of

Police, Vigilance and Anti Corruption, Sivagangai

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District, he wrote the complaint and made his signature.

It was marked as Ex.P.3. He also stayed in the Office at

night. On the next day Morning on 12.03.2002, he was

called by the Deputy Superintendent of Police and at that

time, two official witnesses were available. At the

advise of the Deputy Superintendent of Police, he handed

over Rs.500/-, which was 100 rupee notes. Phenolphthalein

was smeared on the currency note. The pre-trap

arrangement was made by P.W.11, who was working as the

Inspector of Police in the Department during the relevant

point of time. On the basis of the complaint given by

P.W.2, he registered a case in Crime No.5 of 2002 for the

offence under Section 7 of the Prevention and Corruption

Act. On, 11.03.2002, at his request, two official

witnesses were present. He collected money from P.W.2,

which was 100 rupee notes to the value of Rs.500/-. He

preferred a mahazar and also conducted the pre-trap

arrangements with the Sodiun Bicarbonate Solution. After

completing the formalities of trap laying procedure, he

advised P.W.2 and other official witnesses to go to the

office of the appellant and if money is demanded by him

hand over the same and signal.

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7.In pursuance of the above said advise, the police

team started to the office of the appellant at about

10.15 a.m. They reached the office and as per advise,

P.W.2 and other witness namely, Kurinchichezhiyan went to

the office of the appellant. At about 11.30 a.m, they

came out of the office and made a signal. Immediately,

the police team went into the office and the accused was

identified by P.W.2. Later, P.W.2 was directed to go out

side. He prepared Sodium Bicarbonate Solution and asked

the appellant to wash his left hand finger. It turned

purple. He made enquiry as to the money. He told him that

he did not receive any amount. Later, he informed that

the money was handed over to one Susaimuthu. On enquiry,

Susaimuthu told him that the money was given by the

appellant to keep it and hand over the the same. He

prepared a Sodium Bicarbonate Solution and asked

Susaimuthu to dip his left hand finger and it turned

purple. He handed over Rs.300/-. He compared the number

in the note with that of the mahazar and found to be

tallied. Again, he prepared another solution and dipped

the shirts of accused and the above said Susaimuthu. It

also turned purple. All the samples were collected in

separate bottles and the same were sealed and labelled.

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He also prepared a mahazar for recovery of the above said

Rs.300/- and also recovered Rs.200/- from P.W.2. He

arrested the accused at about 03.00 p.m and the other

formalities were carried on. He recorded the statement of

the witnesses and prepared a rough sketch, mahazar and

also submitted the material objects to the Court.

8.Further investigation was undertaken by P.W.14. He

received the file on 12.03.2002 and recorded the

statements of the witnesses, on various dates. After

obtaining the sanction order, he laid the final report

stating that the appellant has committed the offence

punishable under Section 7, 13(2) r/w 13(1)(d) of the

Prevention of Corruption Act, 1988 and Section 201 IPC.

9.P.W.3, is a shadow witness, who attended the

office of the respondent to assist the police in

preparation of the trap and conducting the trap process.

He would submit that along with P.W.2, as advised by the

Inspector of Police, he went inside the office of the

appellant and at that time, the appellant asked P.W.2

whether he has brought the money. The appellant received

Rs.500/- and returned Rs.200/- to P.W.2 after receiving

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Rs.300/-. He also assisted the police for further

process. He was also present in the Vigilance Police

Station when the pre-trap arrangement was made.

10.P.W.4, was as Wiring Contractor. He completed the

wiring work and asked P.W.2 to make arrangement for

getting the service connection.

11.P.W.5 is the sister of P.W.2. She has stated that

the since her husband was in Andaman, P.W.2 was making

arrangement for getting service connection and at that

time, he told her that the appellant had demanded

Rs.500/- as bribe amount for making service connection.

12.P.W.6, was working as Assistant Engineer, in

Ilayankudi. He was also in-charge of Salaigramam,

Sivagangai. After hearing the arrest, he reached the

office and signed in the Mahazar.

13.P.W.7, who was working as the Revenue Inspector,

during the relevant point of time. He made an entry in

the application, which was given by P.W.2 on behalf of

the above said Karthikeyan. Estimate was prepared by the

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accused after visiting the place and documents have been

recovered from his office by the respondent.

14.P.W.8, who was working as an Assistant Executive

Engineer in Ilayankudi. On 12.03.2002, at about 04.30

p.m, the first respondent came to the office and made an

enquiry about the estimation, which was prepared by the

appellant.

15.P.W.10 was working as Assistant, Forensic

Science Laboratory, Chennai, who examined the solution

and also sent the report.

16.P.W.13, was working as Revenue Superintendent in

Electricity Board of Salaigramam, Sivagangai. On

12.03.2002, at about 11.00 a.m, the Vigilance Police

arrested the accused and verified the amount available

with Susaimuthu.

17.With the examination of these witnesses,

prosecution had closed the evidence and the appellant was

put under Section 313 Cr.P.C questioning. The appellant

denied the evidence of the prosecution witnesses.

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18.There was no witness examined and no document was

marked as stated above on the side of the accused.

19.So, after hearing the prosecution and the

accused, the Trial Court recorded the finding of the

conviction and sentence as noted above.

20.Against the conviction and sentence, this appeal

has been preferred by the appellant.

21.Heard both sides.

22.The appeal is against conviction and sentence. We

shall straightaway go to the evidence of P.W.2, who is

the defacto complainant. Because, the appellant heavily

relied upon the evidence of P.W.2 for the purpose of

argument that absolutely prosecution has failed to bring

home the guilt. P.W.2 has completely supported the case

of the appellant, even during the course of chief

examination. From the preamble portion, it is seen that

P.W.2 was making arrangements for the purpose of getting

electricity service connection to the house, which was

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built by his brother-in-law namely, Karthikeyan. The

Wiring Contractor, Subramanian has also corroborated the

evidence of P.W.2 to some extend, wiring work etc., The

amount, which was demanded for getting service connection

was also remitted and it is not under dispute.

23.Even P.W.5, who is the sister of P.W.2, whose

husband was in abroad, has stated that P.W.2 was making

the arrangements. But, regarding the demand of bribe

amount, P.W.2 has stated that no such demand was made by

the appellant. He lodged a complaint only on the advise

of one Sekar, who was working as Assistant Engineer. He

also preferred a complaint as per the dictation of the

Deputy Superintendent of Police, who was present in the

Vigilance Office at the relevant point of time. So, this

part of his evidence shows that he wanted to disown the

complaint.

24.He proceeded further to the effect that as

advised by the Vigilance Police, they reached the office

of the appellant, on 12.03.2002 along with P.W.3,

Kurunchezhiyan. He went to the office and at that time,

he was not available and after some time, he came there.

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At that time, he gave the money to the appellant. But, he

did not receive it. So, he put the money in his pocket

and at that time, Rs.200/- slipped to the ground. He took

the above said Rs.200/- and came out of the office and

made a signal as advised by the Police. So, this portion

of his evidence shows that he was not supporting the case

of the prosecution with regard to the acceptance of

bribe. So, the demand as well as the acceptance as stated

in the charge was not supported by the evidence of P.W.2.

So, he was treated as a hostile witness.

25.Cross-examination was done by both sides. From

the cross-examination of both sides, it is seen that

P.W.2 was not telling the truth before the Court, after

lodging the complaint with full knowledge and with full

possession of conscious mind. He has gone against his own

statement, not only in the complaint, but, also during

the course of investigation. He completely denied the

entire trap preparation and trap proceedings. Not only

that he also stated that only the above said Subramanian,

who is the Wiring Contractor took all the steps and

arrangements for securing service connection. But, P.W.4

Subramanian has denied such fact. P.W.2 further states

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that he never met the appellant regarding the service

connection. Only the above said Subramanian contacted the

appellant and the appellant had never demanded any bribe

amount from him.

26.The learned Additional Public Prosecutor at this

stage would submit that he was made to turn hostile by

the appellant for some reason. What is the reason for

P.W.2 to turn hostile is not available on record. But, he

would rely upon the evidence of P.W.5 for the purpose of

arguments that P.W.2 can be disbelieved since he informed

the demand of bribe by the appellant to P.W.5, the

sister.

27.As mentioned above, P.W.5 stated that P.W.2

informed her that the appellant demanded Rs.500/- as

bribe amount. So, the learned Additional Public

Prosecutor would submit that the evidence of P.W.5 with

regard to the demand is supporting the prosecution case.

But, when P.W.2 himself turned hostile during the course

of evidence, the hearsay evidence of P.W.5 with regard to

the above said demand of bribe by the appellant cannot be

relied on and taken into account.

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28.The contention on the part of prosecution that

the evidence of P.W.5 can be taken into account for the

purpose of proving the fact of demand cannot be accepted.

If at all the evidence of P.W.5 can be relied only if it

is brought under the definition of res-gestae. But, P.W.5

was not very particular about the date and time of the

information. So, it is seen that it was not a

contemporaneous information.

29.With regard to the demand and acceptance, the

prosecution heavily relied upon the evidence of P.W.3,

who is the trap witness. As mentioned above, at the

request made by the Trap Laying Officer, he visited the

office of the respondent on 12.03.2002 and throughout the

pre-trap preparation, he was available in the office and

assisting the police team. He would say that as advised

by the police, along with P.W.2, he entered into the

office of the appellant at about 10.45 a.m. At that time,

he was not available. At about 11.00 a.m, again, they

went to the office and after some time, the appellant

came there and he enquired P.W.2 whether he has brought

Rs.500/- and at that time only P.W.2 handed over the

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money to the appellant. He retained Rs.300/- and returned

Rs.200/ and also told him that the estimate was already

prepared and submitted to the higher officials on the

previous day. They came out of the office and made a

signal. At that time, the police team entered the office

and further proceedings were undertaken as stated in the

preamble portion. So, prosecution heavily relied upon his

evidence. This evidence can be relied only upon to the

stage of acceptance of money by the appellant. But, as

mentioned above, P.W.2 has stated that he only put the

money in the pocket of the appellant. So, whether is it

safe to rely upon the evidence of P.W.3 to find that the

appellant had demanded money and accepted the same, is

the question.

30.But, here, this Court wants to make a general

observation. It is seen that in all cases of trap, the

shadow witnesses are very uniform in their evidence that

the accused enquired the defacto complainant whether they

have brought the money, which was demanded by him. So,

this is the universal statements of the shadow witness

before the Court. It can be termed as a statement which

has been routinely made before the Court by the shadow

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witnesses. So, whether any importance can be attached to

his statement must also be found out in the circumstances

of the case.

31.It is the case of the prosecution that the

appellant after accepting the money from P.W.2, handed

over the same to one Susaimuthu, who was working in the

same office and money has been recovered only from the

above said Susaimuthu. When enquiring the appellant said

to have told that he handed over the money to the

Susaimuthu. Susaimuthu gave a statement that without

knowing the fact that it is bribe money, he accepted the

money from the appellant for keeping safe. So, on that

ground, no case was registered against the above said

Susaimuthu. This Court is not in a position to understand

the stand that was taken by the prosecution. On what

ground, the Investigating Officer came to the conclusion

that Susaimuthu was not at all involved in the offence

and without knowing the nature of money, he accepted the

same for keeping it safe is highly unbelievable one. The

reason being that the above said Susaimuthu as well as

the appellant seats are adjacent. This evidence would

show that there was no much of public movement in the

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office at that time. So, Susaimuthu would have witnessed

all the occurrence said to have taken place in the

office. Because as mentioned above, his seat is also

located near to the appellant. So, the above said

Susaimuthu would have witnessed the demand and acceptance

of money by the appellant. But, no proper statement was

recorded from him. He was not even examined as a witness.

The reason of non examination of the above said

Susaimuthu as a witness during the course of trial

process is not stated by the prosecution.

32.How this important aspect escaped the notice of

the Trial Court is not understandable. The Trial Court

has heavily relied upon the evidence of P.W.3 for

recording the findings of the conviction. The statement

of the above said Susaimuthu is also contradicted by the

evidence of P.W.13. He stated that when he was working as

Revenue Supervisor, the Susaimuthu was also working under

him as a Assessor, who has stated that on that particular

date, both himself and the above said Susaimuthu were

engaged in collecting money from the public. On the date

also, there was heavy public movement. So, in such

circumstance, the prosecution story that Susaimuthu

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received the money without knowing the occurrence, is not

believable one.

33.In the light of the above said circumstances, I

am of the considered view that it is not safe to record a

findings of guilt against the appellant.

34.It is settled law that unless demand is proved,

consequently, mere recovery of money from the accused

will have no consequence. Here, this is even worst case.

Because the amount was not recovered from the accused,

but, from the above said Susaimuthu. So, even the

recovery of money in this case will not have any effect.

35. Following the judgment passed by the Hon'ble

Supreme Court of India in the case of P.Satyanarayana

Murthy Vs. The Inspector of Police and others (Crl.A.No.

31 of 2009 and the judgement passed by this Court in the

case of P.Mani Vs. State of Tamil Nadu (2021 STPL 660

Madras), the conviction and sentence that has been

passed by the Trial Court requires interference.

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36.Accordingly, the appeal is allowed and the

conviction and sentence passed by the Special Court for

Prevention of Corruption Act Cases, (Sub Court),

Sivagangai, in Spl.Cc.No.7 of 2014, is set aside. The

accused/appellant herein, is acquitted from all the

charges that have been framed against him. The bail bond,

if any, executed by the appellant shall stand cancelled

and the fine amount, if any, paid by him, shall be

refunded forthwith.

21.04.2022 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order dss

To

1.The Special Court for Prevention of Corruption Act Cases, (Sub Court), Sivagangai.

2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Sivagangai District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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G.ILANGOVAN,J.,

dss

Crl.A(MD)No.167 of 2016

21.04.2022

https://www.mhc.tn.gov.in/judis