Munusamy vs The State Rep. By
2023 Latest Caselaw 4439 Mad

                                                                                  Crl.A.No.284 of 2015

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated : 19.04.2023

                                                       CORAM

                            THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                  Crl.A.No.284 of 2015

                Munusamy                                                           ... Appellant

                                                          Vs

                The State Rep. by
                The Inspector of Police,
                Vigilance and Anti Corruption,
                Pondichery.
                (Crime No.1 of 2003)
                Through Special Public Prosecutor.                                 ... Respondent

                Prayer:- Criminal Appeal filed under Section 374 of Criminal Procedure
                Code, to set aside the judgment and conviction and direct the acquittal of the
                appellant in Special Calendar Case No.4 of 2008 dated 27.04.2015 passed by
                the learned Special Judge at Puduchery – (under Prevention of Corruption
                Act).

                                  For Appellant            : Mr.V.Aiyakumar

                                  For Respondent           : Mr.K.S.Mohandoss
                                                             Public Prosecutor (Pondy)




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                                                                                 Crl.A.No.284 of 2015




                                                     JUDGMENT

This appeal is filed by the accused in Spl.C.C.No.4 of 2008 for

being held guilty by the trial Court viz., the learned Special Judge at

Puduchery vide order dated 27.04.2015, for the offences under Sections 7,

13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1998 (herein after

referred to as “the PC Act”).

2. According to the prosecution, one Saravanan who was running a

snacks, sweets and savouries business applied for loan at Puducherry

Aadidravidar Development Corporation (herein after referred to as

“PADCO”) which is meant for rendering financial assistance to Aadidravida

community people for establishing small scale trade. The said application was

processed by PADCO and a sum of Rs.2,00,000/- was granted as loan after

receiving Rs.10,000/- as margin money. The said Saravanan who received the

loan on 27.02.2002, thereafter did not pay any installment towards principal

or interest. However, to get subsidy from the District Industries Centre,

Puducherry, (herein after referred to as “DIC”) he approached the accused

who was working as Manager at PADCO to issue NOC. On perusing the

https://www.mhc.tn.gov.in/judis Crl.A.No.284 of 2015

statement of payment, the accused refused to issue NOC unless Saravanan

pays the over dues.

3. While so, it is alleged that the accused demanded Rs.5,000/- on

20.09.2003. When inspection conduced by the accused along with one

Pandurangan, Field Inspector of PADCO for issuance of NOC. Saravanan

was not inclined to pay any bribe to get NOC. Hence approached the

Vigilance and Anti Corruption Police and gave a complaint on 23.09.2003.

Based on his complaint trap was arranged. In the presence of two official

witnesses viz., Sellaperumal and Chandrasekar, pre-trap proceeding was

conducted at the office of the Vigilance and Anti Corruption. Rs.500/- note in

three numbers and Rs.100/- note in fifteen numbers were smeared with

Phenolphthalein powder and entrusted to the said Saravanan with an

instruction that it should be given to the accused only if he demands. P.W.2

Sellapurmal, then Chief Educational Officer, was instructed to accompany

Saravanan to the office of the accused and over see the happening.

4. On 23.09.2003 at about 13.00 hours, the defacto complainant

viz., Saravanan (P.W.1) along with Sellapurmal (P.W.2) went to the room of

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the accused. At that time, the accused was not in his seat and therefore, they

came out from the office of the accused and waited. After some time, the

accused came. Saravanan alone went to the room of the accused and came

out after some time and gave the pre-arranged signal. According to

Saravanan, when he went to the room of the accused, he asked money and

immediately he gave Rs.3,000/- to the accused. The accused enquired

whether it is for the due payable or the illegal gratification, he demanded for

issuance of NOC. When P.W.1 told him that it is the illegal gratification for

NOC, the accused received it and kept it in the table drawer and went to the

room of the Managing Director.

5. Thereafter, P.W.1 came out from the room of the accused and

gave the pre-arranged signal to the trap team led by P.W.18, I.R.C.Mohan.

The team members entered into the room of the accused and conducted

Phenolphthalein-sodium carbonate test at the hands of the accused. The right

hand dipped in the solution turned it into pale red, whereas left hand dipped

in the solution remains colourless. Thereafter, the trap laying officers P.W.18

enquired the accused about the money received from P.W.1. The accused

took out the money from his table drawer and handed over it to TLO. Then a

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Mahazar was prepared at the spot and the documents pertaining to the loan

application and the request of P.W.1 to grant NOC were seized. On

completion of investigation final report filed against the accused.

6. The trial Court having considered the testimony of the witnesses

viz., P.W.1 to P.W.21 and the documents marked as Ex.P.1 to Ex.P23 and

also the material objects marked as M.O.1 to M.O.5, concluded that the

accused had committed the offence of demanding illegal gratification of

Rs.5,000/- to issue NOC and in pursuant to the said demand made on

20.09.2003, he received a sum of Rs.3,000/- on 23.09.2003 from P.W.1,

thereby committed the offence punishable under Sections 7 and 13(2) r/w

13(1)(d) of the P.C. Act.

7. The defence document marked as Ex.D.1 is the authorization

order issued by the Managing Director of PADCO to recover loan from the

beneficiaries who have failed to pay the due. In this order the accused been

appointed as head of the second team and given a target to collect a sum of

Rs.50,000/- per day and Rs.10,00,000 in a month. This document was not

considered favorably by the trial Court to appreciate the probable defence

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raised by the accused that the said amount of Rs.3,000/-, he received from

P.W.1 was towards the long due payable by the defacto complainant for the

loan availed from the PADCO.

8. Being aggrieved by the conviction and sentence, the preset

appeal has been filed.

9. The learned counsel appearing for the appellant would precisely

submit that the trial Court has miserably omitted to appreciate Ex.D.1, the

authorization of Managing Director P.W.6., constituting two teams to recover

loan from the beneficiary and the attempt of the accused to recover the money

by passing inspection of the unit run by the defacto complainant on

20.09.2003 and instructed him to pay the due in installments at the earliest

possible. This fact of visit to the P.W.1's unit on 20.09.2003 been

corroborated by the evidence of Pandurangan, Field Officer who

accompanied with the accused and also admitted by P.W.1 himself.

10. It is also pointed out by the learned counsel appearing for the

appellant that P.W.1 is a defaulter and after availing loan of Rs.2,00,000/-, he

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has not even purchased the machinery for which the loan was advanced.

During the inspection, he has given certain excuse for not purchasing the

machineries. This has been noted by the accused and he pressurize P.W.1 to

repay the loan as early as possible. Infuriated false complaint has been given

and the money which was recovered from the accused during the trap was

tendered to the accused on the pretext that it was towards the payment of

loan due.

11. The learned Public Prosecutor (Pondy) representing the Union

Territory of Puducherry / the respondent submitted that the explanation given

by the accused during the trail did not putforth by the accused soon after the

trap. His conduct of receiving money and keeping with himself in the table

drawer instead of remitting it with the cashier or directing the P.W.1 to remit

it at the cashier counter speaks volume. The explanation put forth as a

defence in the course of trial that he was entrusted with the responsibility of

collecting loan dues not been fully corroborated by the Managing Director

who was examined as P.W.6. who issued Ex.D.1 the authorization to collect

over dues.

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12. He further submits that P.W.6 had constituted two teams and the

accused/appellant made as head of the second team. He has to take assistance

of three other persons named in the authorization letter Ex.D.1. As per the

authorization, he should inform about his tour programs to his higher official.

In this case, the money has been received in his office and P.W.1 specifically

has stated that one of the team member viz., Pandurangam was present at his

room and he was asked to go out from the room, when the accused obtained

money from him. Therefore, the demand and acceptance of Rs.3,000/- is not

for discharge but for motivation to issue NOC is proved by the prosecution.

Therefore, the learned Public Prosecutor prayed the conviction and sentence

imposed by the trial Court have to be confirmed.

13. Heard the learned counsel appearing on either sides and perused

the documents available on record.

14. The point for consideration is whether the money marked as

M.O.1 & M.O.2 recovered from the accused/appellant is illegal gratification

received by the appellant or the money received towards the part payment of

the dues payable towards the loan availed by the defacto complainant P.W.1.

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15. Ex.P.2 is the application submitted by P.W.1 to the DIC for

permanent registration to his, “New O.K. Chips and Snacks Products”. This

application is dated 06.06.2003. The loan documents submitted by P.W.1 to

PADCO and the loan sanction letter form part of Ex.P.9 which is dated

03.07.2003. Scrutiny of Ex.P.9 file indicates that P.W.1 requested loan for

Rs.2,20,000/- for which after perusing the project proposal, loan of

Rs.2,00,000/- has been sanctioned and notes were prepared by the

accused/appellant herein and placed it before the Managing Director for

approval. This sanction proposal dated 29.07.2003, which is marked as

Ex.P.7 indicates that the loan to P.W.1 was released in the month of July

2003.

16. Thereafter to get permanent registration with DIC and to get

interest subsidy of 25%, P.W.1 had made application marked as Ex.P.2. This

application is addressed to the Directorate of Industries, Pudhucherry. It is

for requesting permanent registration of the small scale industry viz., “New

O.K. Chips and Snacks”. On receiving the application, a letter has been

addressed to PADCO by the Department of Industries to verify about the

credential of P.W.1.

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17. One Vaidegi P.W.3, who was serving as Assistant Manager in

the loan section of NSFDC has deposed that the letter marked as Ex.P.7 from

the Industries Department dated 29.07.2003 received at her office and she

has entrusted it to attend the letter to one Sundaramurthy to attend. In the

cross examination she has deposed that prior to that, her seat was attended

by one Bharathi, a temporary staff and he was removed from service for

dereliction of duty. As a result , there was backlog in attending the files

including the file pertaining to P.W.1 received from the Industries

Department. She has categorically stated in her deposition that the accused is

not cause for the delay. She has also specifically stated that P.W.1 after

availing loan has not paid even a single installment. This evidence read along

with the evidence of P.W.4 Pandurangan, Field Inspector, who accompanied

the accused to the unit of P.W.1 on 20.09.2003 prove that when P.W.1

sought for NOC on 19.09.2003, the accused has informed P.W.1 that without

inspecting the unit he will not give NOC. Accordingly, on the next day i.e. on

20.09.2003, the accused along with Pandurangan had inspected the unit.

When they went to the unit of P.W.1, he was not present and he came late at

about 11.45 a.m., and thereafter on completion of inspection Pandurangan

along with the accused returned back to the office. According to P.W.1, at the

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time, there was a demand of illegal gratification of Rs.5,000/-. Again on

22.09.2003, when he went to the office of the accused and enquired about

NOC the accused reiterated the demand. Hence, he came to the Vigilance and

Anti Corruption Office and gave compliant.

18. As per the prosecution, the demand of Rs.5,000/- to issue NOC,

by the accused twice earlier and receipt of Rs.3,000/- towards part payment

of alleged illegal gratification on 23.09.2003. Whereas, the accused by way of

cross-examination of witness has probabilised his defence that the sum of

Rs.3,000/- was given by P.W.1 towards loan due which he received and kept

it his table drawer and went to the Manging Director room to inform about

the payment made by P.W.1. The said defence is probabilised by the

evidence of P.W.1 itself, who had stated that when he gave the money to the

accused, he enquiried whether it is towards the due payable or the illegal

gratification.

19. In view of the Court, the second part of querry is an

embellishment invented by P.W.1 to trap the accused who had been

persuading P.W.1 to pay the due.

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20. From the evidence, it is clear that P.W.1 is the defaulter of loan.

He has not repaid the loan amount even a single pie. But he wanted NOC

from PADCO in order to get additional advantage of loan subsidy of 25%

from the Department of Industries, Pudhucherry Government. This has been

resisted by the accused. Being infuriated the false complaint has been lodged

and the trap has been laid. The receipt of the money meant for repayment of

due been converted into illegal gratification due to the dubious design

conceived by P.W.1 and co-operated and assisted by the trap laying officer

who have not made any preliminary enquiry before conducting trap

proceedings.

21. In this regard, to prove earlier animosity against the accused, the

evidence of P.W.1 in his chief examination is relevant. P.W.1 has deposed

that on 19.03.2003 he went to the PADCO office and met Vaidegi and

enquired about the letter from DIC and whether they responded to it. Vaidegi

asked him to met the Field Inspector Pandurangan. When he met

Pandurangan (P.W.4) and enquired about his file and expressed his difficulty

that he had been repeatedly coming to the office more than 4 to 5 times, but

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there is no response and told that he will complaint about him to the higher

officials. At that time the accused came out from his room and pacified P.W.1

and told him that why yelling at Pandurangan and enquiried about his

grievances. Thereafter, he promised to visit his unit on the next day to verify,

whether he has purchased all the machinery for which the loan was granted

and thereafter his request for NOC will be processed.

22. It is admitted by P.W.1 himself and corroborated by other

witnesses that P.W.1 has not purchased all the machineries for which the

loan was extended. He has not even paid a single installment. Therefore,

there is no chance for P.W.1 to get NOC and hence the accused has refused

to give NOC. For the said reason, the disgruntled defaulter has misused the

process of law with the help of Vigilance department and caused irreparable

loss to the appellant by falsely and maliciously prosecuting him under

Sections 7 and 13(2) r/w 13(1)(d) of the PC Act.

23. Hence, the appeal is bound to be allowed. Accordingly, the

judgment dated 27.04.2015 passed by the learned Special Judge, Puduchery,

in Spl.C.C.No.4 of 2008 is hereby set aside. The appellant/accused is

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acquitted of all charges. Fine amount, if any paid, shall be refunded to the

appellant forthwith. Bail bonds, if any executed, shall stand cancelled.

24. In fine, the present Criminal Appeal stands allowed.

19.04.2023 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order

rts

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To

1. The Special Judge, Puduchery.

2. The Inspector of Police, Vigilance and Anti Corruption, Pondichery.

3. The Public Prosecutor, Madras High Court, Chennai.

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Dr.G.JAYACHANDRAN, J.,

rts

Crl.A.No.284 of 2015

19.04.2023

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