G.Arumugam vs The State Of Tamil Nadu
2022 Latest Caselaw 9059 Mad

                                                                    1                   Crl.A(MD)No.15 of 2017

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                          Date : 28.04.2022

                                                                CORAM


                                    THE HONOURABLE MR. JUSTICE G.ILANGOVAN

                                                    Crl.A(MD)No.15 of 2017


                     G.Arumugam                                         : Appellant/Sole         Accused

                                                                    Vs.

                     The State of Tamil Nadu,
                     Represented by its
                     The Deputy Superintendent of Police,
                     Vigilance and Anti Corruption Wing,
                     Sivagangai,
                     Sivagangai District.
                     (Crime No.2 of 2003_        : Respondent/Complainant


                     Prayer:             Criminal       Appeal          filed    under        374(2)   of   the
                     Criminal Procedure Code to call for the records of the
                     judgment dated 28.12.2016 in Special C.C.No.6 of 2014 on
                     the          file    of     the    Special          Court    for    Cases     under    the
                     Prevention            of    Corruption         Act,        Sivagangai      District,    in
                     Crime NO.2 of 2003 on the file of the respondent police
                     and          set    aside    the    same       and    acquit       the    Appellant/Sole
                     Accused.

                                  For Appellant                 :       Mr.T.Lajapathi Roy

                                  For Respondent                :       Mr.R.Meenakshi Sundaram
                                                                        Additional Public Prosecutor




https://www.mhc.tn.gov.in/judis
                                                                2                   Crl.A(MD)No.15 of 2017

                                                            JUDGMENT

This Criminal Appeal is preferred against the

judgment of conviction and sentence passed by the Special

Court for Cases under the Prevention of Corruption Act,

Sivagangai District, in Special C.C.No.6 of 2014, dated

28.12.2016, by which, the appellant was convicted and

sentenced to undergo 2 years of Rigorous Imprisonment and

to pay a fine of Rs.1,000/-, in default, to undergo 6

months Simple Imprisonment for the offence punishable

under Section 7 of 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 Simple

Imprisonment for the offence punishable under Section

13(2) r/w 13(1)(d) of 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 Assistant

Account Officer, Tamilnadu Electricity Board, Sivagangai

District, demanded a sum of Rs.150/- for the purpose of

discharging his official duty of transferring the defacto

complainant's name in the service connection to the house

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in D.No.6-166/5 in Kallal Village. In pursuance of the

complaint lodged by him, a case was registered in Crime

No.2 of 2003 by the first respondent and a trap was laid.

When the appellant has accepted the bribe amount of

Rs.150/-, he was arrested. Based upon that, investigation

was undertaken and a final report was also filed before

the Special Court for Cases under the Prevention of

Corruption Act, Sivagangai District,, which took

cognizance in Special Case. No.6 of 2014 and framed the

following charges against the accused.

(ii) The first charge is that the appellant demanded

a sum of Rs.150/- as bribe amount for the purpose of

discharging his official duty for transferring the

defacto complainant's name in the service connection and

accepted the same on 08.04.2002, at about 05.00 p.m in

his office, thereby, he has committed the offence

punishable under Section 7 of the Prevention of

Corruption Act, 1988.

(iii) The second charge is that by demanding and

accepting Rs.150/- as bribe amount, he has committed

criminal misconduct and thereby, he is liable to punish

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

Prevention of Corruption Act, 1988.

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(v) After framing the above said charges, the

appellant was questioned and he denied the charges. For

proving the above said charges, the prosecution examined

14 witnesses and marked 36 documents. On the side of the

accused namely, the appellant herein, no witness was

examined and no document marked. 7 Material Objects were

exhibited by the prosecution.

3.The case of the prosecution in brief as narrated

through the evidence:-

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

of Indra Nagar, Kallal. She approached the appellant for

the purpose of transferring the service connection in the

house, which was purchased by her from one Sethu and

submitted the relevant documents and forms. At that time,

the appellant demanded a sum of Rs.150/- as bribe. He

also advised her to remit Rs.200/- towards legal charges.

She did not intend to give bribe. So, she requested the

help of P.W.3, who is her neighbour and approached the

Deputy Superintendent of Police, Vigilance and Anti

Corruption Wing, Sivagangai, and as per his instruction,

P.W.12, who was working as Inspector, attached to the

Vigilance and Anti Corruption Wing, Sivagangai,

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registered a case in Crime No.6 of 2002 under Section 7

of the Prevention of Anticorruption Act. He submitted the

original copy to the concerned Court and requested the

officials for assisting him to lay the trap. As per his

request, one Mythili and Santhanakrishnan came to the

office. On the arrival of the above said witnesses, he

introduced them to P.W.2, the defacto complainant. At his

request P.W.2 handed over Rs.150/- as 3 fifty rupee

notes. Apart from that, she also handed over Rs.200/- as

2 hundred rupee notes, which was liable to be paid for

effecting the service connection. The mahazar was

prepared in respect of all the currency notes.

Phenolphthalein powder was smeared in the fifty rupee

notes. As per the procedure, they undertook the

phenolphthalein and Sodium Bicarbonate treatment. He

advised P.W.2 and other witnesses to undertake the steps

as per his advise. After completing the pre-trap process,

the Police Team went to the appellant's office at about

04.45 p.m. The Police Team was waiting in a hidden place

and advised P.W.2 and the witness one Subramanian and

official witness Mythili to go to the office of the

appellant and if money is demanded, the same must be

given as bribe.

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4.Further events was spoken by P.W.2:-

As advised by the respondent, P.W.2 and Mythili went

inside of the office of the appellant. P.W.2 handed over

the money to the appellant and the witness Mythili having

conversation with the appellant. The appellant put the

money in his pocket. Both of them came out of the office

and as advised, she made a signal. On seeing the signal,

P.W.12 Team went inside the office of the appellant.

P.W.2 identified the appellant to P.W.12. Enquiry was

made and they preferred Sodium Bicarbonate Solution and

the appellant was asked to wash both his hands

separately. He has also washed his hands separately and

in both times, the solution turned pink. That solutions

were collected separately and separately labelled and

sealed. The appellant has also handed over Rs.150/-. He

compared the number with that of the number mentioned in

the mahazar, which was prepared at the time of pre-trap

arrangements in the office. The pant pocket of the

appellant was also dipped in Sodium Bicarbonate Solution

and it also turned pink. The solution was also collected

in the separate container and labelled and sealed. On

enquiry, the appellant said to have stated that he

received the money for taking food. Then he recovered the

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relevant records from the office. He prepared the mahazar

for the records recovered from the office. The appellant

was arrested at about 07.00 p.m and remanded to custody.

A search was also made upon the house of the appellant.

But, nothing was recovered. He filed an alteration report

by altering the First Information Report to offence under

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

Act.

5.Further investigation was undertaken by P.W.13. He

recorded the statement of the witnesses and sent the

material objects to the Forensic Science Laboratory for

examination.

6.Further investigation was undertaken by P.W.14,

who was working as DSP. He recorded the further statement

of the witnesses after obtaining the sanction order from

P.W.1. He laid a final report stating that the appellant

has committed the offence punishable under Section 7 and

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

Anticorruption Act.

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7.P.W.3 stated by P.W.2 is a neighbour and he has

spoken the original demand that has been made by the

appellant, the participation in the pre-trap arrangements

and the trap proceedings with regard to the demand that

has been made by the appellant and acceptance, etc.,

facts.

8.P.W.4 was the official witness as mentioned above.

She also corroborated P.W.2 & P.W.3 with regard to the

demand and acceptance of amount as bribe by the

appellant, on the date and time as mentioned by the

prosecution. She also participated in the trap

arrangements and signed in the relevant records.

9.P.W.5, Sethu, was working as an employee in a

Lorry Shed. He sold the property to P.W.2.

10.P.W.6, Maran, helped P.W.2 in filling the forms

and also typed the security bond.

11.P.W.7, who was working as an Accounts Supervisor

in Tamilnadu Electricity Board, Karaikudi. He has spoken

about the name transfer file pertaining to P.W.2.

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12.P.W.8, who was working as Executive Engineer in

Tamilnadu Electricity Board, Karaikudi, during the

relevant point of time. He has spoken about the procedure

to be followed for transferring the name in the service

connection.

13.P.W.9, who was working as a Sherstader in the

Trial Court, has spoken about the Material objects for

chemical examinations.

14.P.W.10, Santhanakrishnan is an another official

witness, who participated in the trap arrangements and he

also watched the events, which took place at the time of

trap. He also signed in the relevant records.

15.P.W.11 has spoken about the examination of

Material Objects, which were submitted to the Lab for

report.

16.With these evidence, prosecution was over. The

appellant was subjected to questioning under Section 313

Cr.P.C examination and he denied the evidence that was

laid by the prosecution. After hearing the parties, the

appellant was convicted and sentenced as noted above.

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17.Points for consideration:-

It is not in dispute that the accused, who is the

appellant herein was working as an Account Officer during

the relevant point of time in the Tamilnadu Electricity

Board, Karaikudi. It is also not in dispute that P.W.2

made an application for transferring the name in the

service connection to the house, which was purchased by

her with the above said witness Sethu and also that P.W.3

is the neighbour of P.W.2. There was no motive between

these two witnesses and the appellant herein, before the

complaint. So, with this factual position, let us go to

the main issue.

18.As stated above, it is a specific case of the

prosecution that the appellant demanded and accepted

Rs.150/- as bribe towards discharging his official duty

and also not in dispute that this appellant was the

competent person to deal with the file pertaining to the

transfer form.

19.It is the case of the appellant that what was

paid by P.W.2 to him is a legal money payable towards

legal charges for effecting the transfer of name and this

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is the specific stand that has been taken during the

course of appeal proceedings. Such a stand was not taken

during the course of trial process. What was the defence

during the trial was that there was enmity between the

appellant and some union people in the office. By

utilising the illiterate P.W.2, his enemies have foisted

a false case. But, absolutely, there is no evidence on

record to show that there was a previous enmity between

the above said employees union and this appellant; P.W.2

has been used as a tool to foist a false case against the

appellant. Absolutely, there is no material on record.

20.When a specific stand has been taken by the

appellant during the course of argument, the learned

Additional Public Prosecutor would submit that absolutely

even during the course of 313 Cr.P.C examination, the

appellant has not taken such a stand.

21.The learned counsel for the appellant took a

specific stand that even as per the evidence of P.W.2,

the money was offered in a folded form. According to him,

believing that it is only a legal money, he received the

same and there is no question of acceptance of bribe

amount and there was no demand also.

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22.When such a specific stand has been taken by the

appellant during the course of appeal, the question which

arises for consideration is that whether in the absence

of any such plea before the Trial Court, such a defence

can be taken. No doubt, that the accused person can take

advantage of weakness of the prosecution case. Probably,

the defence has been taken only on these circumstances.

Now, whatever it may be, the defence that was taken

before the Trial Court and before the Appellate Court, in

the light of the above said arguments. Let us go to the

evidence on record.

23.P.W.2 is a Village ill-literate and rustic lady.

She was not in a position to give a statement before the

Court in a proper and casual manner. She has forgotten

many things and many things also faded from her memory.

In a casual manner, she has given statement before the

Court. Reason for me to make such a comment is that there

are material contradictions between the evidence of

P.Ws.2, 3 & 4 with regard to the demand and acceptance of

bribe amount by the appellant.

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24.The contradiction that were available on record

has been pointed out to the learned Additional Public

Prosecutor. In respect of that issue, he has submitted

that P.W.2 being an illiterate rustic lady and more

particularly, she has been examined after a lapse of

several years before the Trial Court, absolutely, her

mind and memory might have gone wrong. So, it is true

that she was examined after a lapse of several years.

But, one thing must be taken into account, the material

contradictions. Let us ignore the evidence of P.W.2 for a

while.

25.P.W.3 is the key witness to the entire episode.

According to him, he has all along present with P.W.2

right from the date of preparation of documents for

taking the procedure of transferring the name and his

association with the occurrence lasted till he was

examined before the Trial Court. So, the long association

of P.W.3 with the case, gives some sort of clarity to the

issue. But, here, again, we see some sort of material

contradictions.

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26.He has stated in his evidence that he accompanied

with P.W.2 to the appellant's office and handed over all

the documents on 27.03.2002. At that time, the appellant

stated that Rs.200/- must be paid towards legal charges

and Rs.150/- must be paid as a bribe amount. P.W.12 told

that she has brought only Rs.200/-. Subsequently, the

appellant returned back all the documents. Again on

02.04.2002, at about 10.00 a.m, they visited the

appellant's office and at that time, he requested whether

they have brought the legal money as well as the bribe

money. Again, they handed over the documents. Hence, they

returned from the office. At that time, P.W.2 told him

that she is not willing to give bribe amount to the

appellant. So, he advised P.W.2 to lodge a complaint with

the Vigilance Department, Sivagangai. At her dictation

and instruction, he wrote the complaint in his

handwriting. He also signed in the complaint as a

witness, that was marked as Ex.P.2. On 08.04.2002, at

about 10.30 a.m, he took P.W.2 to the Vigilance and

Anticorruption Wing, Sivagangai, and handed over the

compliant to the Deputy Superintendent of Police. So,

according to P.W.3, on two occasions, he and P.W.2 went

to the appellant's office. On these two occasions also,

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the accused demanded bribe amount. But,P.W.2 has not

stated anything about the presence of P.W.3 when

demanding of bribe was made by the appellant to her.

Similarly he has not stated anything about the second

visit to the appellant office. So, this aspect is

important with regard to the demand of bribe amount by

the appellant.

27.There is contention on the side of the

prosecution side that because of the lapse of time, the

memory would have been lost by P.W.2 with regard to the

presence of P.W.3 during these two occasions. But, unable

to agree this line of argument for the simple reason that

she clearly spoken about the presence of P.W.3 at the

time lodging the complaint. So, the contention of the

prosecution that these two occasions, the appellant

demanded bribe amount is not supported by acceptable

evidence. In the light of the contradiction between P.W.2

& 3, the issue of demand on two occasions can be taken,

which is not established beyond reasonable doubts.

28.Now, coming to the trap occurrence, it is the

evidence of P.W.2 and 3 that the phenolphthalein powder

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was smeared in the three fifty rupee notes. But, however,

mahazar was prepared in respect of Rs.150/- as well as

Rs.200/-. They went to the office of the appellant. At

that time, the appellant enquired whether she has brought

Rs.150/-, the bribe amount. P.W.2 handed over three fifty

rupee notes. The appellant received the same and put it

in his pant pocket. Then he demanded the legal amount of

Rs.200/-. That was also received by the appellant. In

this context, P.W.2 has stated that she went inside the

office of the appellant along with witness Mythili. When

she gave the money to the appellant, the Witness Mythili

was talking with him. The appellant received the amount

and put the same in his shirt pocket. After examination,

she stated that she also paid Rs.300/- along with the

above said Rs.150/-. During the course of

cross-examination, it is stated that she put the total

amount of Rs.450/- on the table. The appellant put

Rs.150/- in his pant pocket and what happened to the

remaining Rs.300/- is not known to her. On that context,

P.W.3 has stated that as mentioned earlier, totally,

Rs.350/- was received by the appellant.

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29.In this context let us go to the evidence of

official witness namely, Mythili. She was examined as

P.W.4. She has stated that when they entered into the

office, the appellant enquired whether they have brought

Rs.150/-. P.W.2 handed over the money and that was put by

the appellant in his pant pocket. But, she has not spoken

about the above said demand of Rs.200/-, legal charge.

She has further stated that Rs.200/- was returned to P.W.

2 by the Inspector, Pandiyarajan. So, with regard to the

total amount that was received by the appellant, there is

material contradiction.

30.In this context, we will go to the evidence of

P.W.12. He has stated that phenolphthalein powder was

smeared only in the fifty rupee notes and that was given

to P.W.2 to hand over the same to the appellant, if it is

demanded by him. Rs.150/- was recovered from the

appellant. He has further submitted that during the

course of cross-examination he did not recover the above

said Rs.200/- from the appellant. That amount was neither

demanded nor accepted by the appellant. P.W.2 also did

not pay the money to the appellant. No mahazar was also

prepared with regard to the above said Rs.200/-. Only to

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clarify this point, the matter was heard after reserving

the case for judgment. I have pointed out the above said

material contradiction to the learned Additional Public

Prosecutor.

31.The learned Additional Public Prosecutor would

submit that no doubt that there is some sort of

discrepancy with regard to the above said Rs.200/-.

According to him, it is a minor contradiction, which does

not affect the case of the prosecution since the bribe

amount has been clearly stated by the witnesses and that

was recovered from the appellant. So, according to him,

no importance need be given with regard to Rs.200/-. But,

I am unable to accept this line of argument.

32.It is the case of prosecution that apart from the

legal amount, bribe amount was also demanded by the

appellant. It is the duty of the prosecution to clearly

establish as to what had happened to the legal amount. If

it is the case of the prosecution, that both the amount

have been paid in a different dates, then we can say that

need not assume any importance. Here, both the amounts

have been tendered at the same time to the appellant. The

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Trap Laying Officer has not concentrated on this point.

He has concentrated only on the alleged bribe amount of

Rs.150/- and not the legal amount. So, proper explanation

ought to have been offered by the prosecution as to

whether this Rs.200/- was also tendered to the appellant

or not. With regard to the recovery also he says that

there are contradictions. If really Rs.200/- was also

demanded and accepted by the appellant as spoken by P.W.2

and 3, then recovery mahazar ought to have shown the

same. But, recovery mahazar has not spoken about the

recovery of the legal amount from the appellant. In the

mahazar, it has been stated that Rs.200/- was recovered

from P.W.2. So, this important aspect, no doubt affect

the prosecution case of demand of bribe amount.

33.But as stated earlier, the amount of Rs.150/- has

been recovered from the appellant and there was no

satisfactory explanation by him. Except stating that

believing that it is charge, he received the same, but,

such explanation was not offered either during the course

of trial or during the course of filing the appeal

memorandum. In the appeal memorandum, it is simply stated

that the file was already returned to P.W.2 for

rectifying some defects.

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34.Whatever it may be, now, belated explanation was

offered by the appellant, cannot be accepted.

So, naturally, the prosecution even though failed to

prove the factum of demand of bribe amount, atleast

successfully established the receipt of the illegal

gratification. So, the offence punishable under Section

7 of the Prevention of Anticorruption Act, has been

successfully established. But, insofar as the offence

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

Prevention of Anticorruption Act, has not been

established beyond all reasonable doubts.

35.To that extent, the judgment of conviction and

sentence passed by the Trial Court requires interference.

Accordingly, the conviction under Section 13(2) r/w 13(1)

(d) of Prevention of Anticorruption Act, is set aside and

consequently, the sentence on the above said provisions

also setaside and insofar as the offence under Section 7

of the Prevention of Anticorruption Act, is concerned,

the conviction is confirmed. But, however, considering

the amount involved in the occurrence, the imprisonment

of two years, imposed upon the appellant can be reduced

to 6 months of Rigorous Imprisonment, from 2 years under

Section 7 of the Act.

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36.In the result, the judgment of conviction and

sentence passed by the Special Court for Cases under the

Prevention of Corruption Act, Sivagangai District, in

Spl.C.C.No.2 of 2003, is modified to the above said

extend and the appeal is partly allowed. The conviction

imposed on the appellant under Section 7 of the Act, is

sustained. Insofar as the sentence is concerned, it is

modified to 6 months of Rigorous Imprisonment at stated

above. Fine is sustained.

28.04.2022

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

dss

To

1.The Special Court for Cases under the Prevention of Corruption Act, Sivagangai District

2.The Deputy Superintendent of Police, Vigilance and Anti Corruption Wing, Sivagangai, 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.15 of 2017

28.04.2022

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