Madras High Court
G.Vanaja vs The State Of Tamil Nadu ... on 4 January, 2022
Crl.A.Nos.649 and 658 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.03.2022 PRONOUNCED ON : 22 .04.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
Crl.A.Nos.649 and 658 of 2017
Crl.A.No.649 of 2017
Gopalan (Deceased)
1.G.Vanaja
2.V.Muthulakshmi
3.G.Subramanian …Appellants
(Appellants 2 to 4 are impleaded as per the order
in Crl.M.P.No.14408 of 2021 dated 04.01.2022)
Vs.
The State of Tamil Nadu represented by
Inspector of Police,
Vigilance and Anti-Corruption
Thirchy . …Respondent
Crl.A.No.658 of 2017
K.Kamarasan …Appellant
Vs.
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The State of Tamil Nadu represented by
Inspector of Police,
Vigilance and Anti-Corruption
Ariyalur & District. …Respondent
PRAYER in Crl.A.No.649 of 2017:-
Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, to call for the records pertaining in Spl.Case.No.6 of
2012 dated 04.10.2017 passed by the learned Judicial Magistrate/Special
Judge, Ariyalur and set aside the judgment of Conviction.
PRAYER in Crl.A.No.658 of 2017:-
Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, to set aside the order of the learned Judicial
Magistrate/Special Judge, Ariyalur dated 04.10.2017 in Spl.Case.No.6 of
2012 and may be pleased to acquit the appellant from the charges under
Sections 8 and 12 of the Prevention of Corruption Act, 1988.
In Crl.A.No.649 of 2017:-
For Appellants : Mr.P.Tamilavel
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
In Crl.A.No.658 of 2017:-
For Appellant : Mr.R.Sivaraman
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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COMMON JUDGMENT
Gopalan, deceased appellant in Criminal Appeal No.649 of 2017 is
the first accused and the appellant K.Kamarasan in Criminal Appeal No.658
of 2017 is the second accused. They filed these appeals challenging the
judgment of the trial Court in Spl.Case.No.6 of 2012 convicting the
deceased appellant Gopalan under Sections 7 and 13 (2) r/w 13 (1) (d) of
the Prevention of Corruption Act 1988, and convicting the appellant
Kamarasan under Sections 8 and 12 of the Prevention of Corruption Act,
1988 and sentencing them there under.
2. Prosecution filed final report alleging that the deceased
appellant Gopalan was working as Sub-Registrar (Guidelines), with the
office of District Registrar Office, Ariyalur from 03.06.2009 to 09.10.2009
and he is a public servant within the definition of Section 2 (c) of the
Prevention of Corruption Act, 1988. Second appellant is document writer.
Defacto complainant is a farmer and he decided to execute a General Power
of Attorney Deed in favour of his mother Tamilarasi. On 05.10.2009, he
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bought a Rs.100/- stamp paper and met appellant kamarasan, and he
instructed him to prepare the General Power of Attorney Deed. Next day
(i.e) on 06.10.2009 evening, defacto complainant went to Jeyamkondam
Sub-Registrar office and met appellant Kamarasan. After completing the
formalities with regard to preparation of the General Power of Attorney
Deed, as instructed by appellant Kamarasan, defacto complainant went to
Jeyamkondam Sub-Registrar's office along with two witnesses and met
appellant Kamarasan at Jeyamkondam Sub-Registrar's office at about 11.00
hours on 08.10.2009. Appellant Kamarasan demanded Rs.500/- for paying
the same as gratification other than legal remuneration to appellant Gopalan.
Appellant Gopalan also demanded Rs.500/- as gratification other than the
legal remuneration from defacto complainant. On the same day, defacto
complainant reported the matter to the Inspector of Vigilance and Anti
Corruption and a case was registered in Crime No.30 of 2009 under
Sections 7 and 8 of Prevention of Corruption Act, 1988. During the course
of trap proceedings on 09.10.2009 between 11.45 hours and 12.00 hours in
the office of the Sub-Registrar, Jeyamkondam, appellant Gopalan reiterated
the illegal demand of Rs.500/- and accepted the same through appellant
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Kamarasan. Thus, deceased appellant Gopalan is liable to be prosecuted for
the offences under Sections 7, 13 (2) r/w. 13 (1) (d) of the Prevention of
Corruption Act, 1988 and appellant Kamarasan is liable to be prosecuted for
the offences under Sections 8 and 12 of the Prevention of Corruption Act,
1988.
3. On the basis of this final report, charges under Sections 7, 13
(2) r/w. 13 (1) (d) of the Prevention of Corruption Act, 1988 were framed
against deceased appellant Gopalan and charges under Sections 8 and 12 of
the Prevention of Corruption Act, 1988 were framed against appellant
Kamarasan. Appellants denied the charges and demanded trial.
4. Prosecution examined PW.1 to PW.17 witnesses and produced
Ex.P1 to P19 and MO.1 to MO.3 in support of the case of the prosecution.
There was no witness or document produced on the side of the
accused/appellants.
5. The case of the prosecution as discerned from the evidence of
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prosecution witnesses, in brief, is as follows,
P.W.2 planned to go abroad and decided to execute a General Power
of Attorney Deed, in respect of his family properties, in favour of his
mother. He met appellant Kamarasan on 05.10.2009 and informed him
about his intention to execute the General Power of Attorney Deed. He also
handed over Rs.100/- stamp paper to him. He met him at Jeyamkondam
Sub-Registrar Office on 06.10.2009 and paid Rs.100/- towards his charges.
Appellant Kamarasan asked him to come next day with two witnesses along
with their address proof. Since, PW.2 was not well, he met Kamarasan on
08.10.2009. Kamarasan asked him to pay Rs.650/-. When he asked him that
the registration charges is only Rs.150/- and why he was asking Rs.650/-,
Kamarasan replied that a sum of Rs.500/- is to be paid to appellant Gopalan.
Only then he would register the document. P.W.2 met Gopalan and asked
him why he was asking Rs.500/- in excess of the registration charges.
Appellant Gopalan responded by saying that only if he pays Rs.500/-, the
document would be registered. P.W.2 did not want to give bribe and
therefore, he gave Ex.P2-complaint to the respondent Police. Next day
PW.15-Vigilance Police Inspector introduced witness Syed Ahamad Kabir
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and Kumar. They, read his complaint and enquired about the allegations
made in the complaint. PW.15 had demonstrated the Sodium Carbonate
Phenolphthalein test in his presence and in the presence of the witnesses.
As directed, he gave Rs.500/- meant to be given as bribe to appellant
Gopalan. The pre-trap proceedings and handing over of Rs.500/- were
recorded in Ex.P4-Entrustment Mahazar.
6. Then P.W.2 along with witnesses and police officials, visited
the Sub-Registrar Office, Jeyamkondam. P.W.2 and P.W.3, went inside the
office and met Kamarasan. Appellant Kamarasan asked him whether he
brought Rs.500/- demanded by him and Rs.150/- towards registration
charges. P.W.2 answered in affirmative and then appellant Kamarasan took
them to deceased appellant Gopalan. Gopalan asked him whether he came
for power of attorney deed and P.W.2 answered positively. He paid Rs.150/-
to appellant Kamarasan and he handed it over to deceased appellant
Gopalan. Deceased appellant Gopalan directed a computer operator (person
working in a computer) to prepare receipt for Rs.150/-. Then he asked
P.W.2 as to where is the sum of Rs.500/- demanded by him. P.W.2 took the
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money from his shirt pocket and about to give it to deceased appellant
Gopalan. Then. appellant Kamarasan received the money in his right hand
and gave it to deceased appellant Gopalan. Deceased appellant Gopalan
received the money with his right hand and kept it in a box on the table.
After sometime, PW.2 was delivered a computer bill. Then both P.W.2 and
P.W.3 came out of office and signalled to PW.15 with the pre-arranged
signal. Immediately, PW.15 came to him and P.W.2 explained him as to
what had happened inside the office. PW.15, P.W.2 and P.W.3 and the team
went inside the office and P.W.2 identified the appellants Gopalan and
Kamarasan. Then, he was asked to go outside.
7. On being identified by P.W.2, P.W.15 - Trap laying officer
introduced himself to appellants deceased Gopalan and Kamarasan and
enquired Gopalan about his identity and post. P.W.3 was present along with
other police officials. Sodium Carbonate solution was prepared and when
deceased Gopalan was asked to dip his right hand fingers in the Sodium
Carbonate solution, the solution changed to pink colour. The bottle
containing the solution is MO.2. He enquired about the bribe money.
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Deceased appellant Gopalan handed over Rs.500/-. The currency note
number tallied with the number in the Entrustment mahazar. There was also
a sum of Rs.900/- available in the box, out of this amount, Rs.642/- is
Government money. Appellant Gopalan was not able to account for the
excess sum of Rs.438/-. Another Sodium Carbonate solution was prepared
and appellant Kamarasan was asked to dip his right hand fingers. When he
did, the solution changed to pink colour. The bottle containing the solution
is M.O.3. Then, P.W.15 seized the relevant records, Exs.P5, P6, P9, P10 and
P11. He prepared Ex.P7-Seizure Mahazar and Ex.P8-Observation Mahazar,
Ex.P15-Rough sketch. He arranged for search of Gopalan's house and sent
Ex.P.16-Advance Intimation Letter. The search list is Ex.P17.
8. P.W.4 is the Village Administrative Officer of Pappakudi
(South) village. He informed the respondent police about P.W.2 owning
family property in survey No.4, Guruvalapper temple Village. P.W.5 had
handed over Ex.P12-file containing copies of Adangal, extract, computer
chitta, 'A' Register extract and patta in respect of Survey No.4/33 to the
respondent police. P.W.6 had spoken about paying a sum of Rs.462/- to the
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Government account and keeping the excess amount of Rs.438/- in 'C'
account. P.W.7-Office Assistant had spoken about handing over Rs.438/- to
P.W.6. P.W.9 spoke about preparing Ex.P9-receipt as instructed by deceased
appellant Gopalan. P.W.10 typed Ex.P5-General Power of Attorney Deed.
P.W.11 and P.W.12 are the attestors to the General Power of Attorney Deed.
P.W.14 is the mother of defacto complainant. P.W.16 is the paternal uncle of
defacto complainant. They spoke about the execution of power of attorney
deed by defacto complainant. P.W.13 is the Assistant Director of Tamil
Nadu Forensic Science Department. He spoke about the receipt of two
sealed glass bottles with unbroken seals on 20.10.2009, each containing
180ml of pink turbid liquid. On examination, it was found the liquid tested
positive for the presence of phenolphthalein and Sodium Carbonate.
P.W.17, investigating officer in this case examined witnesses and got
sanction for prosecution of deceased appellant Gopalan and after
completing investigation, filed final report.
9. On the basis of oral and documentary evidences produced in
the case, trial Court found the deceased appellant Gopalan guilty for the
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offences under Sections 7 and 13 (2) r/w 13 (1) (d) of the Prevention of
Corruption Act 1988, convicted and sentenced him to undergo 5 years
simple imprisonment and to pay a fine of Rs.5,000/-, in default of payment
of fine, to undergo further one year simple imprisonment under Section 7 of
Prevention of Corruption Act; to undergo seven years of simple
imprisonment and pay a fine of Rs.5,000/- in default of payment of fine,
undergo further one year simple imprisonment under Section 13 (2) r/w 13
(1) (d) of the Prevention of Corruption Act. Appellant Kamarasan was
convicted and sentenced to undergo simple imprisonment and to pay
Rs.5,000/-, in default to pay fine, to undergo one year simple imprisonment
under Section 8 of the Prevention of Corruption Act and to undergo five
years simple imprisonment and to pay fine of Rs.5,000/-, in default to pay
fine, to undergo further one year simple imprisonment under Section 12 of
the Prevention of Corruption Act, 1988. The substantive sentences are
ordered to run concurrently. Challenging the said judgment, these Criminal
Appeals are filed by the appellants.
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10. Learned counsel for the appellants submitted that the appellant
in Criminal Appeal No.649 of 2017 i.e., Gopalan was dead on 09.04.2020
and his legal heirs are continuing the appeal. The very foundation of this
case is false for the reason that the properties in respect of which P.W.2
wants to execute General Power of Attorney Deed is not his individual
property. These properties stand in the name of joint family members. P.W.4
had clearly stated in his evidence that the property in Survey No.4 is joint
family property. How can P.W.2 can execute the General Power of Attorney
Deed in respect of a joint family property? The registration of case by
P.W.15 and then the alleged trap is illegal as per Section 17 of the
Prevention of Corruption Act. It is seen from the evidence of P.W.3 that he
has not been given any written authority to take part in the trap proceedings.
Therefore, his evidence cannot be accepted. The prosecution has not proved
the demand of bribe and its acceptance by the appellants. Sum of Rs.500/-
was paid towards registration charges and not as bribe. The box used to
keep the money was not subjected to Sodium Carbonate Phenolphthalein
test. Though there are other witnesses present at the time of trap
proceedings, but none of them was examined as independent witnesses.
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Witness Kumar was not examined. There is a motive for P.W.2 to give false
complaint against deceased Gopalan for the reason that when P.W.2
requested Gopalan not to register the document brought by one Saminathan
in respect of Survey No.4 of 2004, his request was negatived by the
deceased Gopalan. Due to that enmity, P.W.2 gave this complaint. Sanction
was given without proper application of mind. The judgment reported in
2022 LiveLaw (SC) 192 (K.Shanthamma ..vs.. The State of Telangana) is
relied for the proposition that the proof of demand by public servant and its
acceptance by him is sine-quanon for establishing the offence under Section
7 of Prevention of Corruption Act. He also relied the judgment of the
Hon'ble Supreme Court in Appeal (Crl.) case No.1335 of 2005 between
State, Inspector of Police, Vishakapatnam ..vs.. Surya sankaram Gargi
reported in http://indiankanoon.org/doc/190260 for the proposition that
without the order of Superintendent of Police, an Inspector of Police cannot
investigate the case. The relevant portion reads as follows:-
“.... When a statutory functionary passes an order,
that too authorizing a person to carry out a public
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function like investigation into an offence, an order in
writing was required to be passed. A statutory
functionary must act in a manner laid down in the
statute. Issuance of an oral direction is not
contemplated under the Act. Such a concept is
unknown in Administrative Law. The statutory
functionaries are enjoined with a duty to pass written
orders.”
Though these contradictions, omissions and lapses were brought to the
notice of the trial Court, the Trial Court has not properly appreciated the
evidence and wrongly convicted the appellants and sentenced them.
Therefore, the learned counsel for the appellants prayed for setting aside the
judgment of conviction and imposition of sentences and to acquit the
appellants.
11. Per contra, learned Additional Public Prosecutor submitted that
the demand of bribe money by the appellants, its acceptance by them and
recovery from them were proved by the prosecution through the evidences
of P.W.2, P.W.3 and P.W.15. Case was properly registered and properly
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investigated. Appellants have not established any ground or prejudice
caused to them in the matter of registration of the case and investigation.
Those grounds were not raised before the trial Court. Therefore, it is not
open to challenge the registration of first information report and conduct of
investigation in the appeal for the first time. The trial Court has properly
analysed the evidence and rightly convicted and sentenced the appellants.
Thus, the learned Additional Public Prosecutor prayed for confirming the
judgment of the trial Court and for the dismissal of these appeals.
12. Considered the rival submissions and perused the records.
13. Points for consideration in these appeals are,
1) Whether the prosecution has failed to establish the demand of
bribe and acceptance of the amount as bribe ?
2) Whether the appeals have to be allowed in the light of the
grounds raised above ?
14. It is not in dispute that the deceased appellant Gopalan was
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working as Sub-Registrar, Jeyamkondam and appellant K. Kamarasan was a
document writer during the relevant point of time. PW.2 approached
appellant Kamarasan for preparation of a General Power of Attorney Deed
in favour of his mother PW.14. Accordingly, appellant K.Kamarasan
prepared General Power of Attorney Deed (Ex.P5) and said to have
demanded a sum of Rs.150/- towards registration charges and Rs.500/- as
bribe to deceased appellant Gopalan. Not wanting to give the bribe, PW.2
gave a complaint and in the trap proceedings, the bribe money of Rs.500/-
was said to have been recovered from the deceased appellant Gopalan.
During the course of pendency of this appeal, appellant Gopalan died and
his legal heirs are continuing the appeal proceedings. One of the main
contention of the learned counsel for the appellants is that the property for
which PW.2 wanted to execute a General Power of Attorney Deed is not his
individual/independent property, but it is a joint family property. How can a
General Power of Attorney Deed can be executed in respect of a joint family
property.
15. It is claimed by PW.2 that he had plans to go to abroad and
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therefore, he executed the General Power of Attorney Deed (Ex.P5) in
favour of his mother. It is now admitted by him that he had not gone to
abroad. It is claimed by the appellants that PW.2 asked deceased appellant
Gopalan not to register any documents in respect of S.No.4/204 Old
S.No.4/1A/4C to be presented by Sambandam, S/o. Rathinam Pillai.
Deceased Gopalan informed PW.2 that if the document produced for
registration is in order, he cannot avoid registration, unless there is Court
order not to register the document. Then, on 06.10.2009, the document
presented for registration by Sambandam was registered. This is the motive,
according to the appellants, for PW.2 to give false complaint against the
appellants.
16. With regard to motive alleged by the appellants, especially the
registration of document presented by Sambandam against the dictates of
PW.2, except a suggestion to PW.2, there is no evidence produced to
establish this motive. Therefore, the motive alleged by the appellants for
PW.2 to give a false complaint against the appellants cannot be accepted.
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17. Perusal of Ex.P5 – General Power of Attorney Deed shows that
PW.2 claims to have owned ancestral property in R.S.No.4/33 in
Guruvalapper Kovil Village, Jeyamkondam, Ariyalur District to an extent of
1.67.5 Hectares. In this property, he had undivided 1/5 share. There is plan
to sell this property and he has to join and execute the sale deed. Since he
planned to go to abroad in connection with employment and it was not
possible for him to personally oversee and take part in the sale arrangement
and execute the sale deed, he appointed his mother PW.14 as his Power of
Attorney. PW.16, paternal uncle of PW.2 also confirms that the property is a
joint family property and PW.2 had executed a Power of Attorney in favour
of his mother. There is nothing illegal in executing Power of Attorney Deed
in respect of undivided share for the purpose of sale, when the owner found
it not possible for him to personally execute the sale deed. Therefore, the
execution of Ex.P5- General Power of Attorney Deed for the undivided
share of PW.2 cannot be considered as an illegal act. Merely because PW.2
had not gone to abroad after the execution of Power of Attorney Deed, we
cannot doubt the case of the prosecution and accept the case of the defence
that it probablises their case that this case is foisted falsely against the
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appellants.
18. We have to find from the evidence available as to whether the
prosecution established the demand of illegal gratification other than legal
remuneration by the deceased appellant Gopalan for performing his public
duty as Sub-Registrar at the time of Registration of Ex.P5 – General Power
of Attorney Deed. So far as acceptance of bribe money is concerned, it is
the case of the appellants, as suggested to PW.2, PW.3 and PW.15 that PW.2
gave a sum of Rs.500/- towards registration charges of Rs.150/- since he
had no change for Rs.150/-. After receiving Rs.500/-, deceased Gopalan
returned Rs.350/- to PW.2. From the suggestion made to PW.2, PW.3 and
PW.15, it is clear that deceased appellant Gopalan accepted the receipt of
Rs.500/-, the trap money smeared with phenolphthalein powder, but claims
that it was not received as bribe, but only received towards registration
charges. Whether this explanation of appellants can be accepted or not is a
matter for consideration.
19. PW.2 during the course of his evidence clearly stated that after
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preparation of Ex..P5-General Power of Attorney Deed, he met Kamarasan
on 06.10.2009 at Sub Registrar Office, Jeyamkondam and he received his
charge of Rs.100/-. He asked PW.2 to come to Sub Registrar Office next
day along with two witnesses and the documents supporting their residential
address. Since he was not well, he could not go to Sub Registrar Office on
07.10.2009. On 08.10.2009, he visited Sub Registrar Office, Jeyamkondam
and met Kamarasan. Kamarasan asked Rs.650/- for registration purpose.
He asked him when the registration charge was Rs.150/-, why he was asking
Rs.650/-. Kamarasan told him that a sum of Rs.500/- should be paid to
Gopalan, only then he would register the document. He wanted to ask
Gopalan about this and Kamarasan took him to Gopalan. PW.2 asked
deceased appellant Gopalan as to why he was asking Rs.500/- in respect of
registration charges. Deceased appellant Gopalan, in response, stated that
only if Rs.500/- is paid, the document would be registered. PW.2 informed
him that he had no money and would come later. Then, he gave a
complaint. This evidence is with regard to his first demand made on
08.10.2009. Then on 09.10.2009, after arranging for trap by PW.15, PW.2
and PW.3 went inside the Sub Registrar Office, Jeyamkondam. Kamarasan
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asked him whether he brought Rs.500/- demanded by him and Rs.150/- for
registration charges, PW.2 answered in the affirmative. Then, Kamarasan
took him to Gopalan. Gopalan asked him as to whether he came for Power
of Attorney Deed and PW.2 answered in affirmative. PW.2 paid Rs.150/-
towards computer fees and the documents to Kamarasan. Kamarasan
handed over them to Gopalan. Gopalan signed in the document and asked a
staff to prepare receipt. Then he asked what about the demand of Rs.500/-
made by him. PW.2 took Rs.500/- from his shirt pocket and tried to give to
Gopalan. But Kamarasan received the amount and gave it to Gopalan.
Gopalan received the money with his right hand and kept in a box in the
table. Then followed the trap proceedings. PW.2 had given clear evidence
with regard to the demand of bribe amount on 08.10.2009 and again on
09.10.2009. The demand of bribe amount by deceased appellant Gopalan
on 09.10.2009, its acceptance by Kamarasan from PW.2 and then giving it
to deceased appellant Gopalan were clearly spoken by PW.3.
20. Of course, there is evidence of PW.2 during the course of cross
examination that nobody asked him to bring the document writer;
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Kamarasan perused the document; Gopalan did not say that he would
receive the document only if Rs.500/- was paid, at that point of time.
Learned counsel for the appellants submitted that this evidence of PW.2
creates doubt that whether the alleged demand of bribe made on 08.10.2009
was really true. The suggestion was made only to the effect that whether
Gopalan told PW.2 that he would receive the document only if a sum of
Rs.500/- was paid. There was no suggestion or question with regard to the
alleged demand of Rs.500/- as bribe on 08.10.2009. It is seen from the
evidence of PW.11 and PW.12 that they had visited the Sub Registrar Office
on 08.10.2009 for the purpose of registration of Ex.P5. Then, they again
visited the Sub Registrar Office, Jeyamkondam on 09.10.2009. Only on
09.10.2009 Ex.P5 was registered. According to PW.2, since Gopalan
demanded Rs.500/- and he did not want to give the bribe, he lodged Ex.P2-
complaint. These circumstances establish the case of prosecution that the
appellants deceased Gopalan and Kamarasan demanded a sum of Rs.500/-
as bribe for registration of Ex.P5 - General Power of Attorney Deed and that
was the reason why the document was not registered on 08.10.2009.
Therefore, this bald evidence of PW.2 that Gopalan did not tell him that he
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would receive the document only if he was paid Rs.500/- would no way
affect the credibility of evidence of PW.2. We cannot pick and chose
particular sentence while appreciating the evidence. Entire evidence has to
be taken into consideration for appreciating the evidence. If the entire
evidence of PW.2 is considered, he had clearly stated that appellants
Gopalan and Kamarasan demanded Rs.500/- as bribe on 08.10.2009 for
registering Ex.P5 – General Power of Attorney Deed and that demand was
again made on 09.10.2009 prior to trap proceedings. PW.3 corroborates the
evidence of PW.2 with regard to the demand made on 09.10.2009.
Therefore, this Court is of the considered view that the demand of bribe
amount of Rs.500/- made by deceased Gopalan and Kamarasan on
08.10.2009 and 09.10.2009 had been clearly proved by the prosecution
beyond any doubt.
21. PW.3 and PW.15 had clearly given evidence with regard to trap
proceedings. The right hand fingers of Gopalan and Kamarasan were
subjected to sodium carbonate phenolphthalein test. PW.13 in her evidence
clearly stated that MO.2 and MO.3 solutions tested positive for the presence
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of sodium carbonate and phenolphthalein. She produced Ex.P13 report.
The currency notes seized from deceased Gopalan confirmed with the
currency notes entered in the Entrustment Mahazar. Thus, the demand of
bribe money by Kamarasan and Gopalan and its acceptance were proved
without any pale of doubt by prosecution. It is not the case of the appellants
that they have not received the money, but their claim is that money was
received only towards registration charges. However this explanation, in
the considered view of this Court, cannot be accepted for the reason that
there is no evidence in support of their claim. No doubt, the proof of
demand of bribe by public servant and its acceptance by him is sine quonon
for establishing the offence under Section 7 of Prevention of Corruption
Act. In the case before hand, in the considered view of this Court, the proof
of demand of bribe by Kamarasan on behalf of Gopalan and then by
Gopalan, a public servant and its acceptance were clearly proved by the
prosecution. Therefore, the judgment relied by the learned counsel for the
appellants reported in 2022 Live Law (SC) 192 (K.Shanthamma ..vs.. The
State of Telengana) is not useful to their case.
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Crl.A.Nos.649 and 658 of 2017
22. This is a case registered for the offences under Sections 7,
13(2) r/w.13(1)(d) of the Prevention of Corruption Act against the deceased
accused Gopalan and under Sections 8 and 12 of the Prevention of
Corruption Act against the accused Kamarasan. It is submitted by the
learned Additional Public Prosecutor that the Inspectors are authorised by
the State to investigate the offences under Sections of Prevention of
Corruption Act, 1988. Only if an investigation is sought to be conducted for
the offence under Section 13(1)(e) of Prevention of Corruption Act, 1988,
the order of police officer not below the rank of Superintendent of Police is
required. This is not a case registered under Section 13(1)(e) of Prevention
of Corruption Act. Therefore, the investigation conducted by PW.17 is in
order. Thus, this Court finds that the judgment relied by the learned counsel
for the appellant in Hon'ble Supreme Court Appeal (Crl.) case No.1335 of
2005 between State, Inspector of Police, Vishakapatnam ..vs..
Suryasankaram Gargi reported in http://indiankanoon.org/doc/190260 is
not applicable to the facts and circumstances of this case.
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Crl.A.Nos.649 and 658 of 2017
23. For the reasons stated above, this Court finds that the
prosecution has clearly proved the demand of bribe and its acceptance by
the appellants and then, recovery by PW.15. The trial Court has properly
appreciated the evidence and rightly convicted and sentenced the appellant
for the charges framed against him. This Court finds no reason to interfere
with the judgment of the trial Court. Thus, the points are answered against
the appellants.
24. In fine, this Court confirms the judgment of conviction passed
in Spl.Case.No.6 of 2012 dated 04.10.2017 by the learned Judicial
Magistrate/Special Judge, Ariyalur against the deceased appellant Gopalan
under Sections 7 and 13 (2) r/w 13 (1) (d) of the Prevention of Corruption
Act 1988, and the conviction recorded and sentence imposed against the
appellant Kamarasan under Sections 8 and 12 of the Prevention of
Corruption Act, 1988, and dismisses these Criminal Appeals. In view of the
death of Gopalan during the pendency of the Appeal, the sentence ordered
against him cannot be enforced. If the fine amount is not paid, the legal
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Crl.A.Nos.649 and 658 of 2017
heirs are liable to pay the fine amount, from the estate of deceased appellant
Gopalan.
25. Accordingly, these Criminal Appeals are dismissed. The trial
Court is directed to take steps to secure appellant in Crl.A.No.658 of 2017,
viz., K.Kamarasan to undergo the remaining period of sentence.
mra 22.04.2022
Index :Yes/No
Internet:Yes
Speaking Order/Non-speaking Order
To
1. The Judicial Magistrate/Special Judge,
Ariyalur.
2. Inspector of Police,
Vigilance and Anti-Corruption
Thirchy.
3. Inspector of Police,
Vigilance and Anti-Corruption
Ariyalur & District.
4. The Public Prosecutor,
Madras High Court,
Chennai.
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Crl.A.Nos.649 and 658 of 2017
G.CHANDRASEKHARAN,J.
ep/mra
common Judgment in
Crl.A.Nos.649 and 658 of 2017
22.04.2022
https://www.mhc.tn.gov.in/judis
