Madras High Court
V.Senthiraj vs State Rep. By on 1 March, 2023
Crl.A.No.143 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.143 of 2014
V.Senthiraj .. Appellant
.Vs.
State Rep. by
Inspector of Police,
Vigilance and Anti Corruption,
Coimbatore,
Crime No.7/2011/AC/CB. .. Respondent
Criminal Appeal filed under Section 374 of Code of Criminal
Procedure to call for the records in connection with judgment dated
28.02.2014 in Spl.C.C.No.5 of 2012 on the file of the Special Judge,
Special Court for Cases under Prevention of Corruption Act, Coimbatore
and set aside the same and acquit the appellant from the charges level
against him.
For Appellant : Mr.H.Manojin
Legal Aid Counsel
For Respondent : Mrs.G.V.Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment of
conviction and sentence dated 28.02.2014 passed in Spl.C.C.No.5 of
2012 by the learned Special Judge, Special Court for Cases under
Prevention of Corruption Act, Coimbatore.
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2. The case of the prosecution is that the appellant/accused was
working as an Accountant in Palladam Sub-Treasury and the de-facto
complainant A.Radha was working as a nurse in ESI Dispensary,
Naranapuram, Palladam. On 16.6.2011, the pay drawing authority of
Palladam ESI Dispensary submitted G.P.F loan bill, One Man
Commission arrears bill and Surrender Leave Salary of the de-facto
complainant in the Palladam Sub-Treasury for clearance through one
Harigopalakrishnan, Assistant of ESI Dispensary, Head Quarters,
Tiruppur. At that time, the accused instructed Harigopalakrishnan to
inform the de-facto complainant to come and meet him in person in his
office. Thereafter, the de-facto complainant met the accused in his office
at Palladam on 20.6.2011 and the accused demanded a sum of Rs.1200/-
as illegal gratification to pass the said bills. Again on 23.6.2011 at 11.00
hours the de-facto complainant met the accused and when the accused
reiterated his demand, the de-facto complainant told that she is not
having such amount with her. Thereafter, the accused told the
complainant to come on 24.6.2011 during the office hours along with
money and then only he will clear the arrears bills. Since the
complainant did not want to give the said illegal gratification to a public
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servant, she approached P.W.10 the Inspector of Police, Vigilance and
Anti Corruption, Coimbatore and made a oral complaint against the
accused. As per the trap proceedings, on 24.6.2011 the de-facto
complainant went to the office of the appellant along with official
witness one K.Danabal/P.W.3, between 15.45 to 15.55 hours and she
gave Rs.1200/- to the accused as illegal gratification and the same was
accepted by the accused. Subsequently, the trap laying officers recovered
the bribe amount from the accused through Ex.P10 seizure mahazar and
P.W.10 arrested the accused and registered a case against the appellant.
3. On the complaint given by the de-facto complainant, the
respondent/Police registered a case in Crime No.7/2011/AC/CB against
the appellant for the offences under Sections 7 of the Prevention of
Corruption Act, 1988 [hereinafter referred to as 'PC Act' for the sake of
convenience and clarity] and later it was altered into Sections 7 and 13(2)
r/w 13(1)(d) of PC Act. After completing the investigation, P.W.10 laid a
charge sheet before the learned Special Judge, Special Court for Cases
Under Prevention of Corruption Act, Coimbatore for the offences under
Sections 7 and 13(2) r/w 13(1)(d) of PC Act. The learned Special Judge
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taken the charge sheet on file in Spl.Case No.5 of 2012 and charges were
framed against the appellant for the aforesaid offences.
4. In order to prove its case before the trial Court, on the side of
the prosecution, as many as 11 witnesses were examined as P.W.1 to
P.W.11 and 16 documents were marked as Exs.P1 to P16, besides 3
material objects were marked as M.O.1 to M.O.3.
5. After examining the prosecution witnesses, the incriminating
circumstances culled out from the evidence of the prosecution witnesses
were put before the accused and he was questioned under Section 313
Cr.P.C., wherein he denied all the incriminating circumstances as false
and pleaded not guilty. On the side of the defence, no oral evidence was
adduced and no documentary evidence was produced.
6. The Court below, after hearing the arguments advanced on either
side and also considering the materials available on record found the
accused was guilty for the offences under Sections 7 and 13(2) r/w
13(1)(d) of PC Act and convicted and sentenced as under :
Offence Sentence
Section 7 of PC Act to undergo rigorous imprisonment
for a period of six months and to pay
a fine of Rs.1,000/-, in default, to
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Offence Sentence
undergo simple imprisonment for a
period of one month.
Sections 13(2) r/w to undergo rigorous imprisonment
13(1)(d) of PC Act for a period of one year and to pay a
fine of Rs.2,000/-, in default, to
undergo simple imprisonment for a
period of two months.
Both the sentences were ordered to
run concurrently.
the period of detention already
undergone by the accused was
directed to be set off under Section
428 Cr.P.C
7. Challenging the said conviction and sentences, the appellant
has filed the present Appeal before this Court.
8.1 The learned counsel for the appellant submitted that the basic
ingredients for the offences under Sections 7 and 13 of PC Act have not
been made out. In order to meet out the said offences there must be a
demand for illegal gratification and that the evidence regarding the said
demand is totally absent in this case. P.W.4/Assistant Treasury Officer is
the competent authority to pass the arrear bills of the de-facto
complainant and the appellant has no power to pass the bills. As per the
prosecution, at the time of presenting the arrears bills of the complainant,
the appellant told P.W.6 Harigopalakrishnan to inform the de-facto
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complainant to meet him in person in his office. However, without
examining Harigopalakrishnan and without conducting any preliminary
enquiry, the trap laying officer straight away registered the case against
the appellant. He further submitted that the evidence of P.W.2 shows that
the appellant demanded illegal gratification on 20.06.2011 for passing of
three bills and also reiterated that the said gratification amount should be
given by 24.6.2011. However, on 20.06.2011 itself the appellant passed
all the three bills and the same were sent to P.W.4 for his approval, but
out of three bills Ex.P5/One Man Commission Arrear bill was returned
by P.W.4 with an endorsement ''sanction proceedings not in order
incorrect increment certificate'' that implies that she must comply with
certain formalities required by One Man Commission. Even before, the
so called payment of bribe on 24.06.2011, the accused had already
passed the bills of the complainant and hence, the question of demanding
bribe does not arise and the evidence of P.W.2 is false. The prosecution
has not proved the prior demand, acceptance and recovery. In the absence
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of prior demand and acceptance, mere recovery is not sufficient to
convict the appellant.
8.2 The learned counsel for the appellant further submitted that
there are discrepancies in identifying the accused by P.W.2, P.W.3 and
P.W.10. Their evidence did not corroborate with each other and therefore,
the identification of the accused is improper. Further, the demand of bribe
amount of Rs.1200/- on 20.06.2011 and 23.6.2011 could not be correct in
the light of the documentary evidence. There are vital contradictions
regarding the recovery of tainted money between the version of P.Ws.2, 3
and 10 and the trial Judge has given undue importance to the version of
P.W.4 which is clearly inadmissible as he was not a witness to the
seizure. He further submitted that as per the evidence of P.W.2 the
appellant after receiving the bribe amount, had handed over the same to
the complainant and asked her to keep the same in his cupboard, it is
highly unnatural and improbable that a public servant after receiving the
bribe amount in the public, handed over the same to the complainant and
asked her to keep the same in his cupboard. There are material
contradictions in the evidence of prosecution witnesses and the same will
conflict the case of the prosecution. The trial Court failed to appreciate
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the entire materials in the right perspective and erroneously came to the
conclusion that the prosecution has proved its case and wrongly
convicted and sentenced the appellant. Therefore, the judgment of the
trial Court may be set aside and the appeal may be allowed.
9.1 Per contra, the learned Additional Public Prosecutor appearing
for the respondent submitted that the de-facto complainant was working
as a nurse in ESI dispensary and she applied for G.P.F loan bill, Arrears
bill and SLS bill. When the ESI authority submitted the said bills in the
Sub-Treasury, Palladam, Tiruppur through P.W.6, at that time, the
appellant, who was working as accountant in the concerned treasury
instructed P.W.6 to inform the beneficiary P.W.2 to come and meet him in
person during office hours. When the complainant met the accused in the
office on 20.6.2011, he demanded illegal gratification for passing the
said bills. Again on 23.6.2011 she met the accused, he reiterated the
earlier demand and told the complainant to come on 24.06.2011 along
with money and then only he will clear the bills. However, since the
complainant did not want to give illegal gratification to a public servant,
he approached P.W.10, the Inspector of Police, Vigilance and Anti
Corruption, Coimbatore and made a oral complaint against the accused
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and P.W.10 reduced the same into writing, which was marked as Ex.P2.
Based on the complaint, on 24.06.2011, P.W.10 arranged a trap with the
help of the de-facto complainant and two other official witnesses viz
P.W.3/Dhanabal and Jagadeesan, they conducted a pre-trap
demonstration. After completing pre-trap proceedings, P.W.10 along
with P.W.2, P.W.3, Jagadeesan and other trap laying officers went to the
office of the appellant and conducted the trap proceedings and at that
time, P.W.2 gave M.O.1 series currency notes which were coated by
Phenolphthalein and Sodium Carbonate powder to the accused in the
presence of the shadow witness/P.W.3. Thereafter, the complainant came
out of the place and also shown pre-arranged signal to the trap laying
officer. Then, P.W.10, P.W.3 and other trap laying officers went to the
place and enquired the appellant, the appellant also accepted the illegal
gratification took from the complainant. Thereafter, phenolphthalein test
was conducted, which showed positive and P.W.10 recovered the money
and arrested the accused and Ex.P10 seizure mahazar was prepared.
9.2 To prove the case of the prosecution, the de-facto complainant
was examined as P.W.2 and she has clearly narrated the incident and the
shadow witness, who accompanied with P.W.2 in the trap proceedings
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was examined as P.W.3. A person who informed the complainant
regarding the instructions given by the appellant i.e. told the beneficiary
to come and meet him in person during office hours was examined as
P.W.6. The trap laying officer was examined as P.W.10. The entrustment
mahazar was marked as Ex.P4; seizure mahazar was marked as Ex.P10;
chemical analysis report was marked as Ex.P11 and the material objects
were marked as M.O.1 to M.O.3. From the oral evidence of P.W2, P.W.3,
P.W.6 and P.W.10 and documentary evidence, the prosecution proved its
case beyond all reasonable doubt. The trial Court has rightly appreciated
the entire oral and documentary evidence and convicted and sentenced
the appellant. There is no merit in the appeal and the same is liable to be
dismissed.
10.Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor for the respondent and also perused the
materials available on record.
11.In order to substantiate the charges, the prosecution examined
11 witnesses out of which, the de-facto complainant was examined as
P.W.2 and she categorically stated that when she was working as a nurse
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in the ESI dispensary she applied for G.P.F loan, One Man Commission
arrears and Surrender Leave Salary. Thus, the authority of the ESI
dispensary sent her bills to the Sub-Treasury of Palladam. After sending
the bills, P.W.6 enquired the accused, for which the accused told P.W.6
that he put tokens for those bills, but to pass the bills the complainant has
to give him Rs.1200/- and instructed P.W.6 to inform the same to P.W.2.
On 20.06.2011 at about 11.00 hours P.W.2 met the accused in his office
and enquired about her bills, the accused demanded a sum of Rs.1200/-
as illegal gratification and she informed the accused that she cannot
afford to give the said amount, for which the accused told that unless the
said payment, he would not pass the bills. On 23.06.2011 again, the
accused reiterated the earlier demand. However, since the complainant
did not want to give any illegal gratification, she approached P.W.10 and
gave a complaint Ex.P2. Based on the complaint, the respondent/Police
registered the case and arranged for a trap and also pre-trap proceedings
was conducted in the presence of two official witnesses P.W.3/Dhanabal
and one Jegadheesan. On 24.06.2011 at about 15.45 hours P.W.2 went to
the office of the appellant along with P.W.3, at that time, the accused was
sitting in a west facing seat, when the complainant enquired about her
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bills in the presence of P.W.3, the appellant reiterated his earlier demand.
The complainant gave M.O.1 series currency notes in the presence of
P.W.3 to the accused and he received and counted and gave it back to
P.W.2 and asked P.W.2 to kept the same in the right side drawer of his
table, where he usually sit and accordingly, P.W.2 placed M.O.1 series in
the accused table. Thereafter, the complainant made a signal to the trap
laying officers and when they came to the place, the complainant
identified the appellant and thereafter, as per the direction of the officer,
she left the place.
12. The shadow witness, who is the witness for the trap
proceedings, was examined as P.W.3 and he has clearly spoken that he
himself and one Jegadheesan were the official witnesses to the trap
proceedings. On 24.06.2011 at 11.30 hours both of them were introduced
to P.W.2 by P.W.10 and P.W.10 explained about the complaint of P.W.2,
pre-trap demonstration and trap proceedings. The serial number M.O.I
series currency notes were entered into the entrustment mahazar and the
same was marked as Ex.P4. In Ex.P4 P.W.2, P.W.3 and Jegadheesan and
P.W.10 have signed. As per the trap proceedings, P.W.3 went to the office
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of the accused along with P.W.2 and enquired about her bills in his
presence. As the appellant reiterated the earlier demand, the complainant
gave the phenolphthalein coated amount from her money purse to the
accused and the accused also received the said amount, counted and
returned back to the complainant and asked her to keep the amount in the
right side drawer of his table. As the complainant kept the same in the
appellant's table, came back and showed pre-arranged signal to P.W.10.
Thereafter, P.W.10, P.W.3, Jagadeesan and other trap laying officers went
to the office of the accused, when P.W.2 identify the accused and she was
asked by P.W.10 to stay outside of the office. Thereafter, P.W.10 along
with P.W.3, Jagadeesan and other police officials enquired the accused
and thereafter conducted phenolphthalein test in the presence of
P.W.4/Assistant Treasury Officer, which showed positive and also they
verified the tainted bribe amount with entrustment mahazar/Ex.P4 and
the serial numbers M.O.1 series tallied and thereafter, P.W.10 recovered
the amount from the accused and also arrested the accused. P.W.10
prepared seizure mahazar/Ex.P10, in which, P.W.3, P.W.4, Jagadeesan,
P.W.10 have signed.
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13.P.W.6 the then Assistant of ESI Dispensary, Head Quarters,
Tiruppur has clearly stated about the prior demand made by the appellant
for passing of the arrears bills of the complainant and his evidence is
corroborated with the evidence of P.W.2.
14. P.W.10/Inspector of Police, Vigilance and Anti Corruption,
Coimbatore, who has clearly stated about the complaint/Ex.P2,
pre-trap demonstration and trap proceedings and recovery of the money
and preparation of entrutment mahazar/Ex.P4 and seizure
mahazar/Ex.P10. His evidence is corroborated with the evidence of
P.W.2, P.W.3 and P.W.6.
15. This Court, being an appellate Court, as a final Court of fact
finding in this case and it has to independently re-appreciate the entire
evidence and to give independent finding. Accordingly, this Court has
also thoroughly gone into the entire materials and re-appreciated the
entire evidence on record.
16. Since it is a case based on the trap proceedings, the Court has
to see as to whether prior demand, acceptance and recovery of bribe are
proved by the prosecution beyond all reasonable doubts. On a perusal of
the entire oral and documentary evidence, it is seen that the
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complainant/P.W.2 has clearly deposed that for what purpose she
approached the appellant and the demand and acceptance made by the
appellant. P.W.6 has clearly stated about the demand made by the
appellant for passing the bills of the complainant. Further, P.W.3 has
categorically stated about the demand and acceptance made by the
appellant and also recovery of the tainted bribe amount. P.W.10 has
categorically stated about the trap proceedings and preparation of
entrustment mahazar and recovery of seizure from the appellant.
Therefore, this Court finds that from the evidence of P.W.2, P.W.3, P.W.6
and P.W.10, the prosecution proved the demand, acceptance and
recovery. Further, to strengthen the case of the prosecution the Scientific
Officer attached to Forensic Science Laboratory, Chennai, who
conducted Chemical Analysis on M.O.2 and M.O.3 and submitted a
report/Ex.P11 was examined as P.W.9 and her evidence is corroborated
with Ex.P10 seizure mahazar. Further, P.W.7 the employee of ESI
dispensary, Palladam states that as per the instructions of PW.6 he went
to the Sub-treasury, Palladam and handed over the bills of P.W.2. Further,
the then Assistant Sub-Treasury Officer was examined as P.W.5 and he
has spoken that on 24.6.2011 when he was in the office at about 4 0'clock
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the trap laying officer came and caught red handed the appellant and they
have also conducted phenolphthalein test and recovered the bribe
amount. The Assistant Sub-Treasury officer, who is the competent
authority to pass the bills was examined as P.W.4 and he has also stated
that out of three bills, he passed two bills and one bill was returned only
based on the query raised by the appellant and also stated that he
witnessed in the seizure mahazar/Ex.P10. At the time of occurrence i.e.
on 24.06.2011 already two bills were cleared and one bill was pending.
Therefore, from the evidence of P.W.2 and P.W.6 it is clear that the
appellant demanded money for passing the bills. From the evidence of
P.W.4 it is clear that the appellant is the one who raised query and based
on the query he returned the bill. The fact remains that from the evidence
of P.W.2 and P.W.6 the prosecution proved the demand of bribe by the
accused on three occasions i.e. prior to trap on 18.6.2011, 20.6.2011 and
23.6.2011 and also the demand of bribe by the accused during the trap on
24.6.2011. The demand and acceptance was proved from the evidence of
P.W.2 and P.W.3. The recovery of tainted money through seizure was
proved from the evidence of P.W.3 and P.W.10. Therefore, the basic
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ingredients of Section 7 of PC Act i.e demand of bribe, acceptance and
recovery were proved by the prosecution in the manner known to law.
17. It is a settled proposition of law that once the prosecution
proved the foundational facts of demand, acceptance and recovery of
tainted money, there is a presumption under Section 20 of the Prevention
of Corruption Act, 1988 and the accused has to rebut the same in the
manner known to law. Unless the contrary is proved by the accused, the
Court can safely come to the conclusion that the accused has committed
the offence under the Prevention of Corruption Act.
18. This Court while re-appreciating the entire materials finds that
the prosecution has proved all the ingredients of Section 7 of PC Act and
the trial Court rightly appreciated the evidence and recorded conviction.
The appellant is a public servant, he obtained illegal gratification and the
prosecution proved its case beyond reasonable doubt. This Court finds
that the prosecution proved the principles of sine qua non in the trap case
i.e., the demand, acceptance and recovery and it is for the appellant to
rebut the presumption that the amount recovered from him is not a bribe
money and how the phenolphthalein powder came in his hand. However,
the appellant has not rebutted the presumption in the manner known to
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law.
19. In fine, this Court does not find any merit in the appeal and
Criminal Appeal deserves to be dismissed and accordingly, the same is
dismissed. The conviction and sentences passed in Spl.C.C.No.5 of 2012
by the learned Special Judge, Special Court for Cases under Prevention
of Corruption Act, Coimbatore is confirmed. The trial Court is directed to
take steps to secure the custody of the accused to undergo the remaining
period of sentence, if any and the same shall be set-off under Section
428 Cr.P.C.
01.03.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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To
1.The Special Judge,
Special Court for Cases under Prevention of Corruption Act,
Coimbatore.
2.The Inspector of Police,
Vigilance and Anti Corruption,
Coimbatore,
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
CRL.A.No.143 of 2014
01.03.2023
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