Madras High Court
Unknown vs C.Sankarasubramaian on 3 March, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/03/2023
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)No.347 of 2017
State represented by
The Public Prosecutor,
High Court, Madras-104
(V & AC, Tirunelveli)
Crime No.20 of 2003) : Appellant/Complainant
Vs.
C.Sankarasubramaian : Respondent/Accused
Prayer: Criminal Appeal is filed under section
378(1) of the Criminal Procedure Code, to set aside the
judgment of acquittal of the respondent/accused in
Special Case No.9 of 2014, dated 11/11/2016 by the
Special Court for Trial of cases under the Prevention of
Corruption Act, Tirunelveli and convict the
respondent/accused for the charges framed against him.
For Appellant : Mr.S.Ravi
Additional Public Prosecutor
For Respondent : Mr.R.Anand
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2
J U D G M E N T
This Criminal Appeal is preferred against the
judgment of acquittal passed against the
respondent/accused in Special Case No.9 of 2014, dated
11/11/2016, by the Special Court for Trial of cases under
the Prevention of Corruption Act, Tirunelveli and convict
the respondent/accused.
2.The case of the prosecution, as narrated through
the prosecution witnesses:-
PW2 is living in Pattapathu, Tirunelveli Town. He
purchased the house bearing Door No.35 in the above said
street in his wife's name. In 2003, he approached the
accused, who was working as Bill Collector in that area
for assessment of house tax, etc. He purchased the
application and also remitted the fee. He handed over the
above said application to the accused. He made initials
in a red ink pen and put his seal also. After obtaining
the above said signature and seal, he put up the
application in the box. When he contacted the accused, he
was told that the Revenue Inspector has to inspect the
property and then only assessment can be made. On
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22/12/2013, at about 01.30 pm, he again contacted the
accused. At that time, he demanded Rs.1,000/- as bribe.
At his request, it was reduced to Rs.700/-. The accused
asked him to come, on 24/12/2013 between 01.00 pm and
01.30 pm and hand over the money. He did not intend to
give bribe. So contacted the respondent namely Vigilance
and Anti Corruption Department, on 24/12/2013 at about
9.30 am. His statement was recorded by the Inspector and
in the complaint, he signed.
3.The further event is spoken by the Inspector of
Police, attached to Vigilance Department namely PW11. He
would say that he received the complaint from PW2, on
24/12/2003 at about 9.30 am and registered a case in
Crime No.20 of 2003 for the offence under section 7 of
the Prevention of the Corruption Act. He sent the printed
FIR along with the original to the concerned court and
the copies were submitted to the higher authorities as
per the procedure.
4.On the basis of the above said complaint, pre-trap
arrangement was made as per the procedure. He requested
the assistance of the Government officials for the trap
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arrangement. At his request, one S.Palanisamy belongs to
the Tamil Nadu Electricity Board and one Baskar belongs
to the Municipal Corporation were deputed at about 12.00
am. He introduced the above said witnesses to PW2 and
conducted a demo with sodium carbonate solution and he
has also explained about the above said test.
5.PW2 handed over Rs.700/- demanded by the accused
as bribe and that was smeared with phenolphthalein power
with the note numbers mentioned in the Mahazar. The
Mahazar was prepared, setting out the above said event,
which was undertaken during the trap arrangement. In the
mahazar, all the witnesses signed. He instructed PW2 and
the shadow witnesses to come to the office of the
accused. After the amount is demanded as bribe, he must
hand over the same. After handing over the same, he must
give signal. With the above said instructions, all the
persons started towards the accused office at about 12.45
pm. They went to the office of the accused, which
situated near Ganesh Theatre at about 01.10 pm. Witness
Nos.2 and 3 went inside the office of the accused.
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6.Further event is spoken by PW2. He has narrated
the sequence of events. He would say that as per the
instruction given by PW11, he along with PW3 went inside
the office of the accused. At that time, the accused
asked him, whether he brought Rs.700/-, which was
demanded by him. He handed over the above said Rs.700/-.
The accused accepted, counted the same, put it in his
left shirt pocket. After the above said process, the
accused stated that process will be completed within two
days. After the above said events, he along with PW3 came
outside the office and made signal as advised earlier.
7.The further event is spoken by PW11, the trap
laying officer. He would say that as instructed PW2 and
the shadow witness Palanisamy came out of the office of
the accused at about 01.20 pm and made signal and the
police party entered the office. The accused was
identified by PW2. The sodium carbonate solution was
prepared and the accused was asked to dip his both hands.
Both hands turned pink. Both solution were collected in a
separate container, labeled and sealed. He made enquiry
with regard to the money that was demanded and accepted
by him. He collected the money, which was put in the
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shirt pocket, counted the same and compared with that of
the currency note numbers mentioned at the time of pre-
trap arrangement were found to be tallied. Sodium
carbonate solution test was conducted and the sample was
taken in another container, labelled and sealed. Money
was recovered. Relevant documents were seized. He
obtained the signature of the witnesses and the accused
in the above said mahazar. In spite of search and seizure
made in the house of the accused, no recovery or seizure
was made.
8.PW14 was working as Deputy Superintendent of
Police during the relevant point of time. He took up the
further investigation and recorded the statement of the
witnesses, took up steps to send the material objects for
chemical examination, received the chemical report from
the Forensic Science Lab, Chennai, obtained sanction
order against the accused. After completing the
formalities of investigation, filed charge sheet for the
offences punishable under section 13(2) r/w 13(1)(d) of
the Prevention of Corruption Act, 1988.
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9.PW3 is the shadow witness. Also corroborated the
evidence of PW2 and PW11 in the pre-trap arrangement and
trap arrangement in material particulars. He also signed
in the relevant records.
10.PW4 was working as Assistant Commissioner during
the relevant period. He has spoken about the steps and
action undertaken by the accused, over the request made
by PW2.
11.PW5 was working as Clerk in the Tirunellveli
Corporation office. He has spoken about the transfer of
file regarding the request made by PW2.
12.PW6 and PW7 and PW8 also spoken about the
transfer of file.
13.PW9 is not a material witness and spoken only
about the duty that was assigned to the accused.
14.PW10 is also not a material witness, so also
PW12.
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15.PW13 was working as Scientific Assistant in the
Forensic Science Lab, attached to Chennai and spoken
about the test, that was undertaken on the material
objects submitted by the police through court.
16.After examination of the prosecution side
evidence was over, the accused was subjected to section
313 Cr.P.C. Examination, he denied the facts stated by
the prosecution.
17.At the conclusion of the trial process, the trial
court found the accused not guilty and acquitted him from
the charges levelled against him.
18.Challenging the above said acquittal, the State
is before this court by way of this appeal.
19.Heard both sides.
20.Since it is a case of acquittal to know about the
ground, on which the acquittal has been made can be taken
up for consideration first.
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21.Before we go into the aspect, the background
facts are necessary for better appreciation.
22.It is not in dispute that the accused was working
as Bill Collector during the relevant time for 44 th Ward
in Tirunelveli Corporation. PW2 purchased a property in
Door No.35 in Ottakuthar Street, Pattapathu in the name
of his wife. For change of assessment namely the house
tax assessment, he made a request and that was originally
received by PW7. PW5 in-turn transferred to PW7 and
later to PW6 for further process to PW8. We need not
concentrate much upon the transfer of files in the
official process, which was undertaken, since it is not
denied that the accused is the competent person to
collect the taxes and recommend for transfer of
assessment etc.
23.Now the case of the prosecution is that by
misusing the official power, he demanded money and
accepted the same as illegal gratification. The request
was made in 2003. After presentation of the petition on
15/12/2003, he enquired the accused on two times, at that
time, there was no demand. He was informed that the
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Revenue Inspector will inspect the property and then
only, the assessment order will be passed for change. On
22/12/2003, he demanded Rs.1,000/-, that was reduced to
Rs.700/- and he was directed to give the money on
24/12/2003. So on that date, he lodged a complaint, upon
which the pre-trap arrangement and trap arrangement were
made. So we can believe the prosecution story regarding
the lodging of the complaint and pre-trap arrangement.
But regarding trap only, doubts have been created in the
mind of the trial court by the defence, which was the
primary reason for the acquittal. So without going into
the other aspects, now let us straightaway concentrate,
the place of occurrence.
24.The learned Additional Public Prosecutor would
make a strong objection to the effect that when the
acceptance of money was admitted by the accused, the
question of creating doubt with regard to the place of
occurrence will not assume importance at all. But I am
unable to agree with this line of argument.
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25.In vigilance matters, not only the initiation of
complaint, but also each and every step in the
investigation must be cleared from any doubt. Prosecution
should not try to create evidence or circumstance for the
purpose of seeing that conviction is rendered. If such
sort of misdeed on the part of the prosecution is
allowed, then as mentioned in some cases, it is not less
serious, than that of the demanding gratification and
acceptance. This is the cardinal principle with regard to
not only the prosecution by the Vigilance Department, but
also the prosecution in all criminal cases.
26.So with this in mind, this court reject the
argument that was made by the learned Additional Public
Prosecutor/State.
27.Now let us come to the point. Totally, three
units are functioning in Tirunelveli Town relating to
collection of taxes. Unit No.1 is located near Town
Police Station, Tirunelveli. 2nd Unit, which is the
jurisdiction office of the present subject matter is
located in Katchi Mandapum. The 3rd is located near
Meenakshi Theatre, Pettai. It is admitted by the
prosecution and the accused.
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28.Now at this juncture, the accused established an
important fact that the place of occurrence has been
shifted by the prosecution.
29.Now let us go to the above said fact, which have
brought on record.
30.All the prosecution witnesses including the trap
laying officer would say that they started from the
office and all the witnesses were dropped near Ganesh
Theatre, which is nearer to the Unit No.2. So this is the
evidence of PW2.
31.PW3 shadow witness would say and also admit that
they were dropped near Ganesh Theatre, asked to go to the
office of the accused.
32.PW9 trap laying officer would also admit that at
about 01.00 pm, they reached Ganesh Theatre and dropped
PW2 and PW3 to go to the office of the accused for
further events.
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33.At this juncture, it is the argument of the
accused that Ganesh Theatre is not nearer to Unit No.2
office and the distance between two places is more than
one kilometer; There is no possibility of any one to see
the event took place in Unit No.2 from the Ganesh Theatre
area.
34.PW2 would say that Unit No.2 is located on the
Tenkasi Road, near Ganesh Theatre, there is no
corporation unit. Between Ganesh Theatre and Katchi
Mandapum, the distance is about one kilometer. In Unit
No.2 area, a library, Anganvadi school and noon meals
organization and kitchan are located, in the very same
premises.
35.PW3 would also admit that Katchi Mandapum is
located on the Tirunelveli Road and that was located some
half kilometer away from the area, where they were
dropped and from that place, the Katchi Mandapum will not
be visible.
36.PW6 would say that Unit No.2, where the accused
was working is located on Tenkasi Road nearer to the
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Ganesh theatre. No unit was functioning. From Ganesh
Theatre, Unit No.2 is not visible.
37.PW8 would also admit that the distance between
Ganesh theatre and Unit No.2 was about one kilometer.
From Ganesh Theatre, Unit No.2 is not visible.
38.PW9 would also admit that nearer to Ganesh
Theatre, no corporation unit was functioning.
39.So from these evidence, it is seen that nearer to
the Ganesh Theatre, the trap laying officer, PW2 and PW3
were dropped, now it has been clearly established by the
defence. Now how the change has occurred is the only
point for consideration.
40.To clarify this doubt, we will go the evidence of
trap laying officer. In the conclusion, PW9 stated that
PW2 and PW3 went to the Corporation Office, which is
located some 100 meters from Ganesh theatre; They are
hiding near the above said place; They never went to Ward
No.44, office located in Sivaprakasham Street; He was
certain to the effect that PW2 and PW3 went to Ward No.44
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Office on the date of trap. He would further say that PW2
and PW3 only went to Unit No.2. But whether Unit No.2 was
located near Katchi Mandapum, Tenkasi Road could not be
remembered by him. But in Mahazar under Ex.P9, he has
stated that it was prepared in Unit No.2 nearer to Venu
Vanakumara temple. The above said temple is located near
Katchi Mandapum.
41.So with these evidence, now let us go to the
documents.
42.In the complaint, it has been stated by PW2 that
demand was made, when the accused was available in 44th
Ward, which is located in Sivaprakasham Street.
43.In Ex.P9, as mentioned above, it has been stated
that all the persons were dropped near Ganesh Theatre and
the police team was hiding nearby. PW2 and PW3 went to
the office of the accused.
44.Ex.P22 is the rough sketch, wherein we find that
the place of occurrence is noted as located on the Venu
Vanakumara Koil street on the Tirunelveli to
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Cheranmahadevi road. In the above said premises, library,
noon meals centre and kitchen were available. So this
clearly contradicts the evidence of PW2, PW3 and PW9. So
where was the trap laid, conducted and documents
prepared, serious doubt arises as pointed by the trial
court.
45.Even though, there is a clear admission on the
part of the accused that he received the money from PW2,
but would contend that it was meant for only collection
of flag day contribution. But the fact remains that the
duty was not assigned to him. The changing of the place
of the occurrence, as mentioned above, cannot be
appreciated. On the sole ground, I find that there is no
reason to interfere in the judgment of acquittal, that
has been passed by the trial court.
46.For the reasons stated above, this court is of
the considered view that the judgment of acquittal passed
by the trial court requires no interference by this
court.
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47.In the result, this criminal appeal fails and the
same is dismissed.
03/03/2023
Index:Yes/No
Internet:Yes/No
er
To,
1.The Special Court for trial
of cases under the Prevention of
Corruption Act, Tirunelveli.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.A(MD)No.347 of 2017
03.03.2023
https://www.mhc.tn.gov.in/judis
