Crl.O.P.Nos.20558 & 22331 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.11.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.Nos.20558 & 22331 of 2022
Chinnu @ Palanisami ... Petitioner in
Crl.O.P.No.20558/2022
U.Sakthi @ Sakthivel ... Petitioner in
Crl.O.P.No.22331/2022
Vs.
The State,
Rep. by The Inspector of Police,
Vigilance & Anticorruption,
Coimbatore. ... Respondent in
both Crl.O.Ps
Prayer : Criminal Original Petitions have been filed under Section 482 of
Criminal Procedure Code to quash the criminal proceedings [charge sheet]
in so far as the petitioners [A2 & A3] are concerned, pending on the file of
the Special Court for Trial of cases under Prevention of Corruption Act in
Spl.C.C.No.5 of 2021, Coimbatore.
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For Petitioner in both Crl.O.Ps : Mr.J.Ravikumar
For Respondent in both Crl.O.Ps : Mr.S.Udayakumar Government Advocate [Crl. Side]
COMMON ORDER
The petitioners/accused in Spl.C.C.No.5 of 2021 who are facing trial
on the file of the Special Court for Trial of cases under Prevention of
Corruption Act, Coimbatore filed these quash petitions.
2.The case of the prosecution is that A1/Senthil @ Senthilkumar,
Assistant Engineer, TANGEDCO, A2/Chinnu @ T.Palanisamy and
A3/Sakthi @ Sakthivel are the Field Assistants in the office of
TANGEDCO, West Devanurpudur. The grandfather and grandmother of
defacto complainant's wife Tmt.Arulmozhi owned 1-1/2 acres of
agricultural land in SF.No.292/2B at Pollachi Taluk, Karaiyampalayam,
Nallur Village, Coimbatore District. They dug a bore well in the aforesaid
land for the power connection, registered the same before Angalakurichi
Executive Engineer office for getting IV free electricity service connection
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for 5 HP motor for agricultural purpose. Since the free agriculture service
connection would take long time, the grandfather of the defacto
complainant's wife submitted an application III A1 Service connection on
22.04.2015 which was rejected on the ground that the adjacent land owner
had objection with regard to drawing of electric line over his land. The
defacto complainant maintained the said land and formed a coconut farm.
On 07.09.2016 an application was submitted by the defacto complainant for
new electricity service connection before A1. On receiving the application,
A1 and A3 inspected the field, borewell and prepared an estimation for III
A1 service connection. One month thereafter, sanction of the estimation
was approved and the defacto complainant was directed to pay the estimated
amount of Rs.1,19,900/- which includes labour charges and the same was
paid by the defacto complainant on 07.10.2016. Even after remittance of
the above estimation amount including labour charges, the work did not
progress. Hence, the defacto complainant approached A1 on 16.11.2016 at
about 4.00 p.m. And requested for electricity connection. At that time, A1
demanded bribe money under the guise of labour charges. A1 instructed
A3, who was sitting next to him to fix the bribe amount. After knowing
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fully well about the labour charges is included in the estimation amount, A3
fixed the bribe amount of Rs.13,500/- under the guise of labour charge.
Thus, A1 committed an offence punishable under Sections 7 of Prevention
of Corruption Act, 1988 and A3 committed an offence punishable under
Section 7 r/w. 12 of Prevention of Corruption Act, 1988.
3.On 24.11.2016, the defacto complainant met A1 and enquired about
the field work relating to electricity connection. At that time, A1 directed
the defacto complainant to approach A2 to negotiate the bribe amount under
the pretext of labour charges. Pursuant to the same, A2 fixed the bribe
amount to Rs.16,000/-. The defacto complainant explained his inability
further reminded that already labour charges paid. At that time, the defacto
complainant was informed that the procedure adopted is unless the
demanded amount is paid, work will not be completed. Hence, A2 fixed the
enhanced amount of Rs.16,000/- for himself and also on behalf of A1 and
others, hence, A2 committed an offence punishable under Section 7 of
Prevention of Corruption Act. Thus, in no uncertain terms, demand was
made by A2 and A3 on behalf of A1. The defacto complainant not willing
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to pay the bribe amount, lodged a complaint on 23.11.2016. Thereafter, to
confirm the veracity of the complaint the defacto complainant approached
the accused with voice recorder on 24.11.2016, at that time demand by A2
recorded and A1 on the request of the defacto complainant reduced the
bribe amount from Rs.16,000/- to Rs.15,000/- was confirmed. The
respondents secured two official public witnesses, conducted the pre-trap
proceedings in the office, prepared entrustment mahazar and advised the
defacto complainant to pay the bribe amount unless there is a demand for it
and sent the accompanying witness to oversee the happenings. The other
official public witness was with the Trap Laying Officer [TLO] waiting for
the pre-arranged signal. On 25.11.2016 between 3.35 p.m. and 3.45 p.m.
the defacto complainant went to the office of the accused, handed over the
demanded bribe amount to A1 and on receipt of the pre-arranged signal, the
TLO and the other official public witness entered the office, A1 was caught
red handed, recovered the bribe amount, phenolphthalein test conducted
turned positive confirming the receipt of bribe amount. Thereafter, recovery
mahazar recorded, A1 arrested in the presence of his superiors and files
were seized. In the complaint dated 23.11.2016, the names of A1 and A3
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alone recorded, since the demand by A2 was made on 24.11.2016 and
thereafter, the name of A2 was included in the FIR registered on
25.11.2016. It is found during investigation that all the three accused
conspired together, abetted each other and committed the offence. On
conclusion of investigation, charge sheet filed against A1 to A3 listing
L.W.1 to L.W.24, documents L.D.1 to L.D.28 and M.Os. The Trial Court
taking the case on file issued summons to the witnesses, at that stage, it was
reported that A1/Senthil @ Senthilkumar dead. Now the trial is pending
against A2 and A3/petitioners herein. Against which, the present quash
petitions were filed.
4.The contention of the learned counsel for the petitioners is that the
name of the petitioner/A2 is not in the complaint. The complaint is said to
have been given on 23.11.2016 and the alleged demand of the petitioner/A2
is said to have been made only on 24.11.2016. He would also submit that
though a voice recorder is said to have been placed and the demand of A2
recorded, no voice sample of A2 was obtained to confirm the same. The
statement of defacto complainant cannot be taken as a gospel truth. The
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defacto complainant given a improvised statement falsely implicating the
petitioner/A2. He further submitted that after the death of the principal
offender, the petitioner/A2 cannot be proceeded under the charges of
abetment. The specific case of the prosecution is that A2 aided A1 in
receiving the bribe amount. In view of the death of A1 and the abetted
person is no more available for prosecution, the petitioner cannot be
proceeded for any aiding.
5.As regards the petitioner/A3, the learned counsel for the petitioners
submitted that admittedly the petitioner/A3 was not present at the time of
the alleged demand and receipt of the bribe amount. The petitioner is only a
Field Assistant went along with A1 to inspect the site to ascertain the
requirement of the materials and the cost involved. He would submit that
A3 had not fixed any bribe amount, he only informed the defacto
complainant about the labour charges as required by A1. He further
submitted that though there are 24 witnesses, none of the witnesses spoke
about the petitioner/A3. The allegation against A3 is that he aided A1 in
demand and acceptance of the bribe amount. The petitioner as Field
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Assistant in TANGEDCO is to assist and carry out the orders of the
superiors, in preparation of the estimation, for which the petitioner/A3
cannot be said to have conspired and abetted the prime accused. Further, in
view of the death of A1/the abetted person, the aid of abetment would
naturally fall. As per Section 107 of IPC, 'Intentionally aids' falls under
clause (iii) and the case of the prosecution is that the petitioner/A3 aided
A1, hence in view of A1 no more, the case against A3 cannot be proceeded
with. He further submitted that the charges against the petitioners/A2 & A3
are under Section 7 of Prevention of Corruption Act, 1988 and Section 109
IPC r/w. Section 13(2) r/w. 13(1)(d) of P.C. Act. Hence, he prayed for
quashing the charge sheet.
6.The learned counsel for the petitioners further relied upon the
following decisions:
1) Faguna Kanta Nath vs. The State of Assam reported in
AIR 1959 SC 673
2) Jamuna Singh vs. State of Bihar reported in AIR 1967 SC
553
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3) Haradhan Chakrabarty vs. Union of India (UOI) and
Others reported in MANU/SC/0811/1990
4) State of Maharashtra vs. Ramdas Shankar Kurlekar and
Another reported in 1999 Crl.L.J.196
5) State of Madhya Pradesh vs. Mukesh and Others reported
in (2006) 13 SCC 197
6) B.Jayaraj vs. State of A.P. reported in (2014) 13 SCC 55
7) P.Satyanarayana Murthy vs. The District Inspector of
Police and Others reported in AIR 2015 SC 3549
8) Central Bureau of Investigation vs. V.C.Shukla and
Others reported in AIR 1998 SC 1406
9) Madan Raj Bhandari vs. State of Rajasthan reported in
AIR 1970 SC 436
7.Relying upon the aforestated decisions, the learned counsel for the
petitioners stressed the distinction in the case of person instigating another
or engaging in conspiracy with another in one hand and that of the person
aiding the person in committing a certain offence. Further, the learned
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counsel pitched his case referring to the judgments stating that Section 107
IPC defines abetment in three clauses, namely, (i) Instigation, (ii)
Conspiracy and (iii) Intentionally aids. As far as clauses (i) and (ii) are
concerned, it is not necessary that the offence should have been committed.
As regards clause (iii), the scope of the word “Aid” would come into play
when a person abets by aiding and the aided should have committed the
offence. In view of the fact that A1 who committed the offence is no more,
the case against A1 stands abated which is nothing but resulting in acquittal
of A1. In such circumstances, the petitioners cannot be proceeded for
abetment for an abated offence. He also referred to the decision of the
Karnataka High Court in the case of Central Bureau of Investigation
[Anti-Corruption Branch] vs. Smt.V.M.Saraswathy [Crl.Revision Petition
No.304 of 2019 dated 20.12.2021] and the decision of the Apex Court in the
case of U.Subhadramma vs. State of Andhra Pradesh reported in [2016] 7
SCC 797.
8.The learned Government Advocate [Crl. Side] refuting the
contention of the learned counsel for the petitioners submitted that in this
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case, the petitioners conspired together in demand of bribe amount from the
defacto complainant. Pursuant to the conspiracy, the demand was made,
bribe amount received and A1 was caught red handed. He would submit
that Section 107 of IPC is of three parts, namely, (i) Instigation, (ii)
Conspiracy and (iii) Intentionally aids. He further submitted that in this
case, the act of the petitioners would very well fall under Clauses (i) and (ii)
and not under Clause (iii). The abetment includes conspiracy. The
petitioners along with A1 conspired together, on 16.11.2016 A3 made a
demand for a sum of Rs.13,500/- as bribe on the pretext of labour charge.
Further, A3 went along with A1 to visit the site of the defacto complainant,
prepared cost estimation for providing electricity service connection and the
defacto complainant remitted the amount of Rs.1,19,900/- including labour
charges. Thereafter again and again, the demand of bribe was made under
the guise of labour charges despite the defacto complainant reminding that
already labour charges are paid, at that time, the defacto complainant was
informed by the accused that unless the demanded amount is paid
separately, electricity connection will not be given. He further submitted
that on 23.11.2016, the defacto complainant lodged a complaint, in which
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the demand of Rs.13,500/- made by A3 under the guise of labour charge is
clearly mentioned and further, the names of A1 and A3 finds place in the
complaint.
9.On 24.11.2016, for confirming the demand the defacto complainant
went to the office of A1, at that time, A2 increased the demand from
Rs.13,200/- to Rs.16,000/- and he was persistent in his demand. Thereafter,
A1 reduced the bribe amount from Rs.16,000/- to Rs.15,000/-. The
complaint, FIR and the trap proceedings records the actual happenings, for
that reason only the demand of Rs.16,000/- by A2 which was later reduced
to Rs.15,000/- by A1 which took place on 24.11.2016 is not available in the
complaint. Hence, the subsequent demand of A2 and the happenings on
24.11.2016 are recorded in the FIR. Further, the accused were aware of the
procedure in providing electricity connection, i.e. preparation of estimation,
obtaining the estimate sanction, thereafter the applicant remitting the
estimated cost and the estimated cost is inclusive of labour charges. Thus,
A1 to A3 were persistently demanded the bribe amount in the name of of
labour charges. He further submitted that all the three accused acted in
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tandem, the happenings recorded by mahazars, documents collected, the
forensic report confirms the case of the prosecution, the sanction witness
perused the documents, statements and thereafter accorded sanction for
prosecution of A1 to A3, public servants. The statements of decoy
accompanying witness, TLO confirms the case of the prosecution and the
role played by each of the accused clearly stated. L.W.5 to L.W.18 are the
witnesses from TANGEDCO who state about the procedure in drawing of
estimation cost, getting sanction and thereafter remitting of estimated cost.
Further, the estimation cost includes labour charges, hence there is no
justification for the accused to demand any labour charge separately. The
demand of bribe amount was made in the name of labour charge. Therefore,
on filing of the charge sheet the Trial Court on perusal of the materials
prima facie satisfied, issued summon to the accused. Hence, he prayed for
dismissal of these petitions. He also relied upon the decision of the Hon'ble
Supreme Court in the case of P.Nallammal and another vs. State rep. by
Inspector of Police reported in [1999] 6 SCC 559.
10.Considering the submissions and on perusal of the materials, it is
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seen that the Investigation Officer was fair and recorded the happenings
naturally. In the complaint dated 23.11.2016, only the names of A1 and A3
alone are mentioned and fixation of Rs.13,500/- as labour charges was
mentioned. Further, it is also that the complainant expressed his inability
due to demonetization and restriction in issuance of money, then also the
accused is said to have insisted the payment. On 24.11.2016, the defacto
complainant was asked to confirm about the demand, the defacto
complainant went to the office of the accused, at that time a voice recorder
was placed wherein the demand raised by A2 and later reduced by A1 were
all clearly recorded, for which voice recording along with Section 65B
certificate was also produced before the learned Special Judge on
25.11.2016. It is further seen that initially the defacto complainant
submitted an application on 22.04.2016, thereafter another application was
made on 07.09.2016, the defacto complainant remitted the estimated amount
of Rs.1,19,900/- on 07.10.2016 and thereafter to, erection of electric poles
and power supply got delayed. Hence on 16.11.2016, the defacto
complainant approached A1, A3 who was present there fixed the bribe
amount of Rs.13,500/- in the name of labour charges knowing well that
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already labour charges were paid. On 24.11.2016, A2 increased the bribe
amount from Rs.13,500/- to Rs.16,000/-. Thus the defence of the petitioners
was that they only informed the labour charges, not demanded any bribe,
cannot be accepted, further overwhelming materials available to show that
the estimated cost paid on 07.10.2016 which includes labour charges which
is known to the officials and staffs of TANGEDCO. Thereafter, on
25.11.2016 A1 received the bribe amount in the presence of public witness
and phenolphthalein test was conducted, proved positive. The demand,
acceptance and recovery recorded in Mahazar, supported with statements.
11.The contention of the petitioners that A1 passed away on
28.02.2022 even before charge could be framed and now prime accused
passed away and the petitioners/A2 and A3 who are projected as through
aided A1, the case against them naturally to be quashed cannot be
countenanced for the reason that A2 and A3 were along with A1
throughout, further knowing well that estimation cost includes labour
charges. In the guise of labour charges, A3 demanded bribe amount of
Rs.13,500/- and A2 increased the same to Rs.16,000/- which later reduced
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to Rs.15,000/- by A1 who received the bribe amount from Decoy witness,
caught red handed. The attending circumstances would clearly prove that
all the accused acted in tandem. Apart from Section 109 IPC, the
petitioners are charged under Section 7 r/w. 12 of Prevention of Corruption
Act. Further Section 107 IPC, abetment includes instigation, conspiracy
apart from aiding. The primary contention of the petitioners that the
petitioners fall under Clause (iii) of Section 107 IPC and hence, the case to
be quashed is not acceptable in view of the facts and circumstances of the
case. The defence of the petitioners can be considered only during Trial.
The charge sheet against the petitioners is that they have committed
offences under Prevention of Corruption Act act as well.
12.In view of the above, this Court is not inclined to entertain these
petitions. Accordingly, the Criminal Original Petitions stand dismissed.
01.11.2022
cse Index : Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order
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To
The Special Judge, Special Court for cases under Prevention of Corruption Act, Coimbatore.
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M.NIRMAL KUMAR, J.
cse
Crl.O.P.Nos.20558 & 22331 of 2022
01.11.2022
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