Madras High Court
Unknown vs Ms.K.Vijaya on 12 September, 2023
Crl.A.No.811 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.09.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A. No.811 of 2016
State represented by:
The Public Prosecutor,
High Court of Madras -600 104.
(V & AC., Cuddalore
Crime No.3 of 2009) .. Appellant
Vs.
Ms.K.Vijaya
..Respondent
PRAYER : Criminal Appeal has been filed under Section 378 (1) (b) of
Criminal Procedure Code, to allow the appeal and set aside the judgment
of acquittal of the accused passed in Special Case No.07/2010 dated
04.05.2016 by the Court of Special Judge/Chief Judicial Magistrate,
Cuddalore District and convict the respondent/accused as charged.
For Petitioner : Mr.S.Udaya Kumar,
Government Advocate (Crl.Side)
For Respondent : Mr.S.Ashok Kumar,
Senior Counsel for
Mr.T.R.Ravi.
1/10
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Crl.A.No.811 of 2016
ORDER
This appeal preferred by the State being aggrieved by the order of
acquittal passed by the trial Court.
2. The sum and substance of the prosecution case is that one
Ms.Anbukkarasi, D/o.Balakrishnan drowsed herself with kerosene on
24.03.2009 at her residence. She was immediately taken to the hospital
for treatment but brought back to home since the Doctors adviced to
admit her in Head Quarters Hospital. Thereafter, she was taken to
Cuddalore Government Hospital but she succumbed to the burn injuries
on 29.03.2009 at about 01.40 p.m.
3. Thereafter, Mr.Balakrishnan, father of the deceased went to the
Kurinjipadi Police Station and reported about the death of his daughter.
The case under Section 174 of Cr.P.C was registered in Crime No.62 of
2009 by the appellant herein.
4. The complaint against this respondent emanated from
Mr.Balamurugan, who is the nephew of Balakrishnan. In the complaint
its was alleged that on 30.03.2009 when the complainant and his uncle
went to the police station to report about the death of Anbukkarasi the
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Crl.A.No.811 of 2016
respondent, Sub Inspector of Police demanded one quire paper, pen and
Aircel top up card for Rs.100/- and thereafter, asked them to come after
one week.
5. When they met her again after one week, she informed them that
she has obtained the Post Mortem Certificate and to close the case, she
need Rs.500/- or else, she will convert the case as abatement to commit
suicide, as if, the father of the deceased scolded the deceased and forced
her to commit suicide. After giving evasive reply they came back from
Police Station. However, the accused called him over the phone and
demanded money and asked them to come near Matha Church at about
2.30 p.m on 15.04.2009.
6. When the defacto complainant Balamurugan alongwith
Sowrirajan went to Matha Church and met the accused at 2.30 p.m, she
made demand of illegal gratification for third time and cautioned, if
money is not given there will be problem for Balakrishnan, the uncle of
the defacto complainant. Again on 22.04.2009, the accused called the
defacto complainant over the phone and forced him to give money on
ensuing Tuesday.
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Crl.A.No.811 of 2016
7. Not willing to pay any bribe money, on 27.04.2009,
Balamurugan contacted vigilance police and gave a complaint at about
04.30 pm and the same was registered and taken up for investigation.
The trap was organized by the Inspector of Police. The trap money of
Rs.500/- was smeared with phenolphthalein and entrusted to the defacto
complainant Balamurugan.
8. On 28.04.2009 at about 09.15 hours, the defacto complainant
alongwith shadow witness and the trap team went to Kurinchipadi Police
Station to meet the accused. The accused was not in the station,
therefore they waited for her to come. At about 10.15 hours, the defacto
complainant received a phone call from the accused who informed him
that she is in Vadalur Police Station and asked him to come to Vadalur
Police Station to hand over the money. Accordingly, the trap team went
to Vadalur Police Station and the defacto complainant met the accused.
When the accused enquired whether he has brought Rs.500/-, the defacto
complainant took out the tainted money from his shirt pocket and gave it
to the accused who received it, counted it and kept it in her pant pocket.
Thereafter, the trap team came and recovered the money from the
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Crl.A.No.811 of 2016
accused after conducting the phenolphthalein test and the same was
proved positive. After getting sanction to prosecute the accused and the
chemical analysis report Investigating Officer filed his final report
against this respondent.
9. The trial Court framed charges under Section 7 and 13 (2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 and tried the accused.
To prove the charges, 17 witnesses (PW.1- PW.17) were examined,
marked 13 Exhibits (Ex.P1-P13) and 4 material objects (M.O.1 to 4)
were seized.
10. The trial Court, on appreciation of evidence acquitted the
accused on the ground that the sanction to prosecute is defective and the
explanation given by the accused for possession of the tainted money not
been duly recorded as per the vigilance manual. Further the trial Court
satisfied with the explanation given by the accused which has been
elucidated by way of suggestion in the cross examination of the
witnesses, that Rs.500/- which she received was the hand loan given to
Balakrishnan, the father of the deceased who had shortage of money to
take her daughter's copse back to the village from the Cuddalore
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Crl.A.No.811 of 2016
Government Hospital. To pay the ambulance charge, the accused gave
Rs.500/- to him. That was returned to the accused on 27.04.2009.
11. The learned Government Advocate appearing for the State
submitted that the explanation is highly improbable and the trial Court
ought not to have accepted her explanation. If a hand loan is given out
of sympathy, there is no need to lodge a false complaint against the
accused and force the Vigilance Department to lay the trap. Furthermore,
the trial Court erred in holding that sanction order is defective, inspite of
the fact that PW.1 being DIG, is the competent authority to remove
officers in rank of Sub Inspectors. The consultation process with the
Investigating Officer cannot be construed as the competent authority
acted on the dictate of Investigating Officer.
12. The learned Senior Counsel appearing for the Appellant
submitted that the prosecution through witnesses not able to establish the
foundational fact of demand and acceptance. The application of mind by
the competent authority not independent but on a borrowed wisdom by
consulting the Inspector of Police who is an interested party in the
investigation and this results in the violation of the manual regarding
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Crl.A.No.811 of 2016
recording the explanation given by the public servant regarding money
recovered from her. The said violation is fatal to the case of the
prosecution. Referring the testimony of the PW.16/IO that he had not
recorded any statement from the accused during the trap and recovery
process, in contradiction with the testimony of PW.1 who had
categorically stated that he has gone through the statement of the accused
before arriving at a conclusion to grant sanction to prosecute and the
statement recorded in the seizure mahazar marked as Ex.P5 wherein, a
truncated explanation of the accused/respondent been recorded.
13. The learned Senior Counsel for the respondent submitted that
the view of the trial Court accepting the explanation is sufficient to
discharge the burden of presumption and it is a possible view. Therefore,
there is no necessity to interfere the order of acquittal.
14. This Court on perusing the records and the evidence let in by
the prosecution finds basic flaw in the case of the prosecution. The
following are the flaws in the case of the prosecution which goes to the
root of the matter.
(i) There is material to show that the accused
soon after recovery of money from her possession had
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Crl.A.No.811 of 2016
given some explanation for receiving the money that
explanation not been recorded by the trap laying officer
or he had not produced before the Court which was
available for the sanctioning authority for his perusal.
(ii) There is a specific averment by PW.2 that the
accused been contacting him over phone and
demanding money. The said call details not recovered
and placed before the Court. The accused has
suggested to the witnesses that the phone number which
the PW.2 alleges as that of the accused actually belongs
to one Srinivasan and he was not examined by the
Investigating Officer. From the material placed by the
prosecution, this Court could not find what is the phone
number used for calling the defacto complainant and
when he called. The non recovery or non production of
the call details makes the case of the prosecution
unbelievable.
(iii) The trap spot initially expected to be the
Kurinchipadi Police Station had been shifted to Vadalur
Police Station. The Rough Sketch marked as Ex.P7
shows that the spot of trap is inside the Sub Inspector
room, Vadalur Police Station whereas the General
Diary maintained in the Kurinchipadi Police Station
indicates that the petitioner was asked to go for a
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Crl.A.No.811 of 2016
Highway Patrol Duty on the previous day at 03.00 pm
and she was in the highway patrol duty.
(iv) Furthermore, the case of the prosecution is
that the demand of illegal gratification was to drop
action against Balakrishnan in the case investigated for
unnatural death of his daughter Anbukkarasi. The CD
file in connection with the case registered for the
unnatural death of Anbukkarasi indicates that the
action was dropped on 15.04.2009, which is much prior
to the date of complaint. The accused, after completing
the investigation proceeded under Section 174 of Cr.P.C
has submitted a report to the Executive Magistrate on
15.04.2009 itself and the same form part of the General
Diary maintained in the station and also relied by the
prosecution as Exhibits.
15. For the aforesaid reasons, this Court finds the trial Court
judgment of acquittal need no interference in the appeal since no
perversity or illegality observed in the judgment. The view of the trial
Court is a view also possible, therefore, this appeal is dismissed.
12.09.2023
Internet : Yes/No
Index: Yes/No
rkp
https://www.mhc.tn.gov.in/judis
Crl.A.No.811 of 2016
Dr.G.JAYACHANDRAN, J.
rkp
To
1. The Special Judge/Chief Judicial Magistrate,
Cuddalore District.
2. The Public Prosecutor,
Madras High Court,
Madras.
Crl.A. No.811 of 2016
12.09.2023
https://www.mhc.tn.gov.in/judis
