Madras High Court
Karunakaran @ Karuna vs State By on 5 January, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 5.1.2024.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Criminal Appeal Nos.265 and 266 of 2015
Karunakaran @ Karuna Appellant in Crl.A.No.265/2015
A.Aroulmani @ Arun Appellant in Crl.A.No.266/2015
vs.
State by
The Sub Inspector of Police,
C.B.I., ACB, Chennai.
Through Public Prosecutor for CBI
(R.C.M.A.1/2009 A 0001) Respondent in both the Appeals
Criminal Appeals filed under Section 374(2) of Cr.P.C. against
the judgment of conviction and sentence in Spl.C.C.No.1 of 2009
dated 24.4.2015 by the Special Judge, Puducherry.
For Appellant in
Crl.A.No.265/2015 : Mr.S.Ashok Kumar,
Senior Counsel for
Mr.P.R.Gowthaman
For Appellant in
Crl.A.No.266/2015 : Mr.V.Gopinath,
Senior Counsel for
Mr.C.Sundaresan
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor for CBI
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2
COMMON JUDGMENT
Challenging the judgment of conviction and sentence passed by
the Special Judge, Puducherry in Special C.C.No.1 of 2009, A2-
Karunakaran @ Karuna has filed Criminal Appeal No.265 of 2015 and
A1-A.Aroulmani @ Arun has filed Criminal Appeal No.266 of 2015.
2. A1-Aroulmani was serving as Lower Division Clerk in the office
of the Joint Director General of Foreign Trade, Pondicherry at the
relevant time and thereby, he is Public Servant. He is alleged to have
entered into a criminal conspiracy with A2-G.Karunakaran @ Karuna
and demanded and obtained a sum of Rs.3000/- from the de facto
complainant K.Arokianathan towards illegal gratification other than
legal remuneration for the issue of I.E. Code to M/s.Ravi Agency,
owned by him and thereby he had obtained pecuniary advantage by
abusing his official position by illegal means and thereby both the
accused rendered themselves liable to be punished u/s 120-B IPC r/w
Section 7 and u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption
Act, 1988.
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3. The conviction and sentence imposed by the Trial Court in
respect of A1 is as under:-
Penal Provision Sentence
Section 120-B IPC, Section 7 and 5 years rigorous imprisonment
Section 13(2) of the Prevention of under each count and a fine of
Corruption Act, 1988 Rs.10,000/- under each count in
default to pay the fine, to undergo
rigorous imprisonment for a
period of three months under each
count.
The sentences shall run concurrently.
4. The conviction and sentence imposed by the Trial Court in
respect of A2 is as under:-
Penal Provision Sentence
Section 120-B IPC 4 years rigorous imprisonment
and a fine of Rs.5000/- in default
to pay the fine, to undergo
rigorous imprisonment for a
period of two months.
5. Brief facts of the case are as under:-
i) One N.Lavakumar, PW9, while he was serving as Inspector of
Police, Central Bureau of Investigation (Anti Corruption Bureau)
Chennai from 2006 to 2011, had received instructions from the
Superintendent of Police on 22.1.2009 at about 4.45 pm to enquire
one Arokianathan of Puducherry, who had reported to the
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Superintendent of Police over phone that one Arun, A1 working in the
office of the Joint Director General of Foreign Trade had made a
demand of illegal gratification of Rs.3000/- for processing the
application seeking I.E. Code submitted for the firm called Ravi Agency
being in the name of his wife, had formed a team consisting of the
Inspector of Police Prabakaran, Subramanian and Police Constables
Balachandrapillai and Balasubramani and rushed to Puducherry on
23.1.2009 at 4.00 am.
ii) On reaching Puducherry, at about 8.30 am, the said
Arokianathan, PW3 was called by the team over phone to meet them
at the Railway Guest House, where the team was staying. At about
9.30 am, PW3, alongwith his wife Thaiyalnayagi, reached that place
and submitted a complaint, Ex.P6 in writing to the following effect:-
A Firm called 'Ravi Agency' dealing with Toys in wholesale and
retail was commenced in the name of A.Thaiyalnayagi, wife of PW3
about four months prior to the complaint by obtaining business licence
from Villianur Commune Panchayat. An application was submitted in
the office of the Joint Director General of Foreign Trade, Puducherry on
1.12.2008 seeking I.E. Code for import and export of goods. Pointing
out some defects in the application, a letter was received from the said
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office on 13.12.2008 and rectifying the same, it was resubmitted on
29.12.2008 and by that time, A1 had informed PW3 that the
registration certificate would be sent by post. Since there was no
communication as assured by A1, PW3 had went to the said office and
enquired with A1 on 21.1.2009 for which A1 had not given proper
reply. Expressing the grievance, PW3 insisted for issuance of I.E. code,
A1 had asked to meet him on the next day and thereby PW3 had
approached A1 on 22.1.2009 in his office and insisted for issuance of
I.E. Code at the earliest. Thereupon, A1 had demanded Rs.3000/- as
illegal gratification emphasising that in the event of non payment of
illegal gratification, I.E. Code could not be issued. A1 had also asked
PW3 to meet him with the illegal gratification and bring his wife
alongwith him. Having discussed with the wife and come to a decision
not to give bribe, PW3 had contacted the Superintendent of Police,
CBI, Chennai over phone and reported the demand of bribe by A1 and
had lodged the complaint to the Inspector of Police deputed by the
Superintendent of Police, CBI.
iii) On receipt of the complaint, Ex.P6, PW9, having conducted a
preliminary enquiry to find out the veracity of the complaint and found
the allegation in the complaint to be true, had sent the complaint
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alongwith his enquiry report, Ex.P37 to the Superintendent of Police
through Fax at 12.30 pm with the assistance of the Police Constable
Balachandrapillai.
iv) Subsequently, on receipt of instructions from the
Superintendent of Police over phone to further investigate the case on
the complaint lodged by the de facto complainant Arokiyanathan, as a
case has been registered against A1-A.Aroulmani @ Arun, Junior
Assistant in the office of the Joint Director General of Foreign Trade
under Section 7 of the Prevention of Corruption Act by the Inspector of
Police, Lawrence under FIR, Ex.P42, PW9 had proceeded with the
investigation.
v) One Rajagopalan from Indian Overseas Bank, Puducherry and
PW4-Sundaramurthy, Manager from Bank of India, Puducherry were
deputed to be official witnesses and they reported before the team at
the Railway Guest House between 11.45 and 11.50 am. PW9 gave
the complaint to the official witnesses and made them to understand
the case and thereafter, conducted a demonstration of trap was
conducted with the currency notes brought by the de facto
complainant viz., six numbers of 500 rupee notes to make the team
members to understand the significance of the trap proceedings.
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vi) After entering the serial numbers of the currency notes in the
entrustment mahazar, Ex.P7, those currency notes, M.O.7 were kept in
the left side pocket of the de facto complainant's shirt giving
instructions to him to give the bribe money only if A1 demands it.
Subsequently, after clearing the materials used for demonstration of
trap, PW9 instructed the de facto complainant to go the office of A1
accompanied by the official witness PW4, giving instruction to PW4 to
observe the happenings and conversation between A1 and the de facto
complainant. The rest of the trap team members were instructed to
wait around the trap spot. The entire proceedings were recorded in the
entrustment mahazar, Ex.P7 by PW9 in his laptop between 12.45 and
1.45 pm. Since no printing facility was available in and around the
Railway Guest House, it was printed at about 2.00 pm in the Regional
Office of Indian Overseas Bank, got it signed by the witnesses.
vii) Thereafter, PW9 had proceeded with his team in a Toyota
Car to the office of the Joint Director General of Foreign Trade while
the de facto complainant and his wife were sent in their two-wheeler
and reached the spot at about 3.15 pm and sent the de facto
complainant and PW4 to meet A1. The rest of the team members
were waiting around the spot. PW3, the de facto complainant was
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instructed to give a signal to trap team by wiping off his face with his
hand thrice in the event of A1 accepting the bribe money. Then, PW3,
his wife and PW4 went inside the office of A1 at about 3.30 pm and at
about 3.45 pm, they came out, however, PW3, the de facto
complainant had not shown any signal. After about five minutes, PW3
alone went inside the office and came out about 4.00 pm and showed
the pre-arranged signal.
viii) Immediately, thereafter, the trap team entered into the
office of A1 alongwith PW3, where, PW3 had identified A1 and
thereupon, the trap team members had introduced themselves to A1
and enquired about the bribe money obtained by A1 from PW3 for
which, A1 had denied having received the bribe money. Thereupon,
chemical solution was made ready by the trap team members and the
hands of A1 were dipped into such solution separately and having
found that the solution turned pink, such solution was poured into
separate glass bottles, sealed, named and signatures of the official
witnesses including PW9 and A1 were obtained on them and the same
were recovered as M.Os.1 and 2 under recovery mahazar, Ex.P8.
ix) Subsequently, A1 was arrested, recording the same in the
Arrest cum personal search memo, E.P11 and the factum of his arrest
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was intimated to his superior at Hyderabad. When enquired about the
bribe money, A1 informed that he does not have the money and that
he had handed over the same to his friend, A2, who came there by
then and A2 had gone to the Sony Service Centre at Bharathy Street,
Puducherry to collect the mobile phone given for service. When he
was asked to identify the location, he had acceded and thereupon, he
was taken to the spot by trap team member Prabakaran and two
official witnesses at about 4.25 pm.
x) At about 4.50 pm, A1 accompanied by the team members,
reached the spot and identified A2-Karunakaran and when A1 asked
him about the money, A2 had produced the same by taking from his
right side pant pocket. After having counted and confirmed the same,
the trap team members returned to the office of A1 alongwith both the
accused.
xi) On such return, the serial numbers of the currency notes
produced by A2 were verified with the ones entered in the entrustment
mahazar, Ex.P7.
xii) When A2 was enquired, he contended that he knows A1 for
about 12 years and when he came to the office of A1 seeking for a
sum of Rs.1000/- for servicing his mobile phone, A1 had asked him to
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wait for five minutes and thereafter, he gave Rs.3000/- to him asking
him to leave the office immediately. A2 had also affirmed that by that
time, he had seen the de facto complainant alongwith A1.
xiii) Thereupon, A2 was also subjected to phenolphthalein test
and the chemical solution, having turned pink, was collected in two
separate glass bottles, labelled, named, sealed and seized under M.O.3
and M.O.4 after them being signed by the witnesses and PW9. After
giving an alternate dress, the pant wore by A2 was also subjected to
phenolphthalein test and the same was also recovered under M.O.5 as
the solution had turned pink and the pant was recovered under M.O.6.
Then A2 was arrested at 5.30 pm and recording the same in the Arrest
cum Personal search memo, Ex.P12 and the factum of his arrest was
intimated to his brother over mobile phone.
xiv) Thereafter, a search was conducted at the scene of crime
and no incriminating material was found. Rough sketch, Ex.P10 was
prepared in respect of the scene of crime. The specimen impression
of the seal used to seal the material objects was made ready as Ex.P9.
The above proceedings with regard to recovery were recorded in the
entrustment mahazar, Ex.P8 upto 9.00 pm and the same was signed
by all the witnesses and a copy of the same was furnished to the
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accused.
xv) Thereafter, Exs.P14 to P30, the documents relating to the
case were recovered from PW5-Parthasarathy, Foreign Trade
Development Officer. A search was conducted at the house of A1 and
a mahazar, Ex.P38 was prepared with regard to the same and no
incriminating materials were found in that search. While A2 was
released on bail on his own bond, A1 was remanded.
xvi) Subsequently, on completion of investigation, PW9 had
handed over the file to the Inspector of Police Lawrence on 27.1.2009.
PW9 had also filed a memo, Ex.P39 for change of name of A1 and
Ex.P39 and Ex.P40 with regard to alteration of legal provision in the
FIR.
xvii) PW11-R.Krishnamoorthy, Inspector of Police, who took the
case for further investigation from the Inspector of Police Lawrence on
9.2.2009, had enquired PW5-Parthasarathy at the office of the Joint
Director General of Foreign Trade and recorded his statement. He also
enquired PW10-Nagarajan, Junior Assistant, PW6-Gowrishankar and
Gnanaprakasam of the same office on the same day and recorded
their statements. On the same day, he went to Ravi Agency and
enquired the de facto complainant and his wife Thaiyalnayagi and
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recorded their statements. On 11.2.2009, PW11 had enquired one of
the the official witnesses Rajagopal (not examined) and recorded his
statement. One the same day, PW11 had enquired PW7-Krishnasamy
from Accel Frontline, recorded his statement and recovered three
documents. He also enquired PW8-Chithradevi from the same office
and recorded her statement. On 12.2.2009, PW11 had enquired PW4-
Sundaramoorthy and recorded his statement. On 24.2.2009, PW11
had enquired PW9-Lavakumar, Inspector of Police and recorded his
statement. On 25.2.2009, PW11 had enquired the Inspectors of Police
Subramaniam and Prabakar and recorded their statements. He
enquired the Police Constables Balachandrapillai and Balasubramanian
on 26.2.2009 and recorded their statements. On 1.3.2009, he
enquired the Inspector of Police Lawrence and recorded his statement.
On 1.5.2009, he received the Forensic Lab Report, Ex.P3 on 1.5.2009.
On receipt of sanction order on 29.5.2009, he filed the final report
before the Trial Court.
xviii) The case was taken on file in Special C.C.No.1 of 2009 by
the Special Judge, Puducherry. On summoning, the
Appellants/accused appeared. Copies of relevant papers were
furnished to the Appellant/accused under Section 207 of Cr.P.C. and
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charges were framed. The accused had denied the charges and sought
to be tried.
xix) In support of their case, the prosecution had examined
P.Ws.1 to 11 and marked Exs.P1 to P45 and produced Mos.1 to 7.
xx) On completion of the evidence, the appellant/accused was
questioned under Section 313 Cr.P.C. as to the incriminating
circumstances found in the evidence of prosecution witnesses and the
accused pleaded mercy. On his side of the appellants, one Sree
Ganesh was examined as DW1 and two documents were filed as
Exs.D1 and D2 and another document was marked as Ex.X1 while
cross examining the prosecution witnesses.
xxi) The Trial Court, on considering the entire materials, found
the appellant/accused guilty and imposed the punishments, as referred
to above, which is under challenge in the present Criminal Appeals.
6. The submissions of Mr.V.Gopinath, learned Senior Counsel
appearing for A1/appellant in Criminal Appeal No.266 of 2019 are as
under:-
i) The entire case of the prosecution is bristled with several
infirmities and grave defects, which go to the root of the prosecution
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case.
ii) The genesis of the case as projected by the prosecution is
highly suspicious and the manner in which the case is alleged to have
been registered and the trap has been conducted is also doubtful and
suspicious.
iii) It is the case of the appellant that the de facto complainant
had applied for I.E. Code for his wife and his brother one
Krishnamoorthy is known to the appellant and there was an existing
dispute with regard to a property between PW3, the de facto
complainant and his brother Krishnamoorthy. PW3 had applied for I.E.
Code for his wife in respect the same property showing the property
address and an objection had been given by Krishnamoorthy and since
PW3 was having a grudge with the appellant, he had given a false
complaint, based on which, a pre-planned trap was arranged and stage
managed proceedings were initiated by the respondent.
iv) It is the admitted case of the prosecution that the de facto
complainant, PW3 had given a telephonic complaint to the
Superintendent of Police at Chennai on 22.1.2009 and the
Superintendent of Police, CBI had informed him that he would send an
Officer to meet him on the next day at Pondicherry and the further
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case is that on the next day, PW9, the Trap Laying Officer, alongwith
the team, had went to Pondicherry and stayed at Railway Guest House
and had summoned the de facto complainant, PW3 and PW3 is said to
have given a written complaint, Ex.P6 on 23.1.2009 at the Railway
Guest House, Pondicherry and it was sent to the office of CBI, Chennai
through Fax on the same day at 12.30 hours and the FIR, Ex.P42 was
said to have been registered on the same day at 12.42 hours.
Subsequently, a trap was arranged, entrustment mahazar, Ex.P7 was
said to have been prepared between 12.45 hours and 14.00 hours and
that the trap team had gone to the office of the accused on the same
day at 3.15 pm. It is the case of the prosecution that the tainted
money was recovered and the recovery mahazar, Ex.P8 was prepared
from 17.00 hours to 21.00 hours and thereafter, the accused was
arrested and he was produced for remand before the Special Court on
the same day at 10.30 pm. The appellant was shown to have been
arrested under Ex.P11 at 16.20 hours and he was produced for
remand before the Special Court at 10.30 pm on the same day. At the
time of arrest, the respondent, has alongwith the remand report,
enclosed the Fax copy of the FIR received from the Chennai office of
CBI. Strangely, on the top portion of the fax copy of the FIR received
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from CBI, Chennai, the time is shown as 6.41 am on 23.1.2009 as
evident from Ex.D2 thereby creating a doubt with regard to
registration of the case and the subsequent proceedings which would
go to the root of the prosecution case.
v) When the Trap Laying Officer, PW9 had been cross examined
with regard to Ex.D2 Fax copy of the FIR and the discrepancy with
regard to time found on the top portion of the same viz., 6.41 am on
23.1.2009, he had clearly admitted that it is a copy of the FIR he
received from the Inspector of Police Lawrence from Chennai through
Fax and the Fax cum telephone number found at the top of that
document is the Fax number of the office of the Superintendent of
Police, CBI, Chennai, however, he reiterated that on receipt of the
written complaint at 9.30 am from PW3, had sent to CBI, Chennai only
by 12.30 pm, creating a strong suspicion about the genesis of the case
of the prosecution. In such circumstances, non examination of one
Lawrence, Inspector of Police, who is said to have registered the case
at CBI, Chennai and forwarded the FIR by Fax to the trap team at
Puducherry, goes to the root of the case.
vi) Admittedly, as per the prosecution, PW3 is said to have gone
to the office of the accused along with his wife Thaiyalnayagi for
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whom, the application for IE code was issued, non-examination of
Thaiyalnayagi, who was present at the office of the accused, also
creates a doubt.
vii) A perusal of Ex.D1 would shatter the case of the prosecution
when especially no explanation has been given by the prosecution with
regard to the time found in Ex.D2 with regard to sending of fax
message from the CBI office, Chennai.
viii) The Trial Court failed to take into consideration the fact that
the petitioner is not the officer authorised to issue I.E. Code and the
Trial Court also failed to take into consideration the defects in the
application filed by the wife of PW3 and the objection raised by
Krishnamurthy, which has been spoken by the defence witness DW1.
ix) The entire trap and recovery is doubtful and it is admitted by
PW3 and PW4 that immediately on arrival, the Trap Laying Officer had
conducted a search in the pant pocket of A1 and caught hold of the
hands of the accused prior to phenolphthalein test and thereby there is
every probability of phenolphthalein powder being smeared on the
hands of the appellant.
x) In this case, there is no recovery of money from A1 at the
time of trap and the admitted case of the prosecution is that the
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amount has been recovered from A2 at a far away place from the
office of A1 and the phenolphthalein test was not conducted at once.
xi) The entire case of the prosecution is bristled with serious
infirmities and the Trial Court, without considering the evidence in
proper perspective, found the accused guilty and thereby, the
appellant is entitled to acquittal.
7. The submissions of Mr.S.Ashokkumar, learned Senior Counsel
appearing for A2/appellant in Criminal Appeal No.265 of 2019 are as
under:-
i) As per the prosecution, A2 is known to A1, however, no legal
evidence has been let in by the prosecution to prove that there is any
connection between A1 and A2. Even as per the prosecution, there is
no allegation that the appellant had knowledge about the demand
made by A1 and that he had received the money on the instructions of
A1, knowing fully well that the amount was a bribe amount.
ii) The evidence of PW3 and PW4 is not specific with regard to
the presence of the appellant at the time of alleged trap or receipt of
money by A2 and without there being any legal evidence against the
appellant, he was arrested by the respondent and the final report has
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been filed. None of the witnesses before the court has spoken about
the demand of money by the appellant.
iii) The entire case is bristled with several material
contradictions. Even assuming that there is recovery from the
appellant without there being evidence for demand, A2 cannot be
convicted on mere recovery of tainted money alone.
iv) Further, as per the prosecution, the amount is said to have
been recovered in the presence of one Prabhakaran and Subramanian,
Inspectors of Police and one individual witness Rajagopal, who was
said to have been the members of the trap team and the prosecution
has not proved the recovery from the appellant by legal evidence.
v) There is absolutely no evidence that the appellant had
conspired with the main accused and he received the amount from the
first accused knowing fully well that it is a bribe amount demanded and
received by the main accused.
vi) The alleged recovery is also not proved by legal evidence.
Even as per the prosecution, phenolphthalein test was conducted after
the alleged recovery which would vitiate the entire recovery
proceedings.
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8. The submissions of Mr.K.Srinivasan, learned Special Public
Prosecutor for CBI are as under:-
i) The appellant was working as Lower Division Clerk in the office
of the Joint Director of Foreign Trade at Pondicherry and he is a public
servant. He had entered into a conspiracy with A2, demanded and
obtained a sum of Rs.3000/- from the de facto complaint/PW3 towards
illegal gratification other than legal remuneration at his Chambers in
the office for issuance of I.E. Code claimed by the de facto
complainant on behalf of his wife on 1.12.2008.
ii) The prosecution has proved its case with cogent evidence
adduced by the prosecution witnesses with regard to demand,
acceptance and recovery of the bribe money.
iii) The demand and acceptance of bribe by A1 is clear from the
evidence of PW3, the de facto complainant and the results of the
phenolphthalein test conducted on him and it can be inferred from the
the long delay on the part of A1 in processing the file for issuance of
I.E. Code claimed by PW3.
iv) Though the recovery of tainted money was only from A2, to
whom A1 had given the bribe money and sent out of his office, the
recovery made from A2, the serial numbers of the currency notes
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seized got tallied with those entered in the entrustment mahazar and
the results of phenolphthalein tests conducted on both the accused
would speak about the connection between A1 and A2 and the role
played by A2 in the demand acceptance of bribe by A1.
v) The prosecution has proved its case in a very natural way
beyond any reasonable doubts and slight material contradictions on
the part of the prosecution witnesses may not be fatal to the
prosecution case and the Trial Court has rightly found the accused
guilty and thereby the Criminal Appeals are liable to be dismissed.
9. Heard the learned counsel appearing for the parties and
perused the materials available on record.
10. In this case, the prosecution theory is that A1 had demanded
bribe from the de facto complainant for issuance of I.E. Code required
for the business run in the name of his wife Thaiyalnayagi, obtained
the bribe money and handed over the same to A2, who is known to
him for several years and asked him to get out of the office with the
bribe money and on such information provided by him, certain team
members were sent in search of A2 to a nearby mobile service centre
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and seized the bribe money from him and on the statement given by
A2, the connection between A1 and A2 was inferred and both the
accused were implicated in the case, whereas, it is the defence that
the prosecution has not at all proved the three ingredients for a trap
case viz., demand, acceptance and recovery with any legal evidence
and when recovery is alleged to have been made and no evidence is
produced to establish the connection between A1 and A2, the
prosecution has miserably failed to prove its case against both the
accused.
11. In the factual background of the present case, the evidence
of PW3-de facto complainant, PW4, official witness and PW9, Trap
Laying Officer are relevant. Sofar as the demand and acceptance of
bribe by A1 is concerned, the prosecution had relied only on the
evidence of PW3, the de facto complainant and except such evidence,
the prosecution could not bring any independent evidence to prove the
same.
12. Though it is the case of the prosecution that PW3 alongwith
his wife and PW4, one of the official witnesses had gone to the office of
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A1 on the particular day, it is seen from the evidence of PW3 that at
the first instance, A1 had enquired about the persons accompanied
PW3 and asked him to come alone, after leaving his wife and PW4 and
accordingly, he went to meet A1 after leaving both of them outside the
office of A1 by then only, A1 had demanded and accepted the bribe
and thereby, except the sole evidence of PW3, there is no other
independent evidence to prove the demand and acceptance of bribe
alleged to have been made by A1 and the probability of the alleged
demand and acceptance of bribe being a cooked up story of PW3
cannot be brushed aside, especially, when the defence has taken a
plea to the effect that A1 is not fully authorised to issue the I.E. Code,
the application submitted by PW3 was with defects and thus, the delay
had occurred in processing the same and further, PW3, the de facto
complainant had been in enmity with his brother Krishnamoorthy from
the year 2001 as admitted by himself and the said Krishnamoorthy had
acquaintance with the appellants and thereupon, PW3 had developed
grudges against the appellants and implicated them in the present
case.
13. Further, PW3, the de facto complainant and PW4, one of the
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official witnesses had clearly admitted during their cross examination
that the police officials had checked the shirt and pant pockets of A1
and even prior to that, they caught hold of the hands of A1 while
enquiring him as to whether he obtained bribe for which, he denied.
When there is such a specific admission by PW3 and PW4, the
probability suggested by the defence that the hands of A1 could have
come into contact with phenolphthalein powder at the instance of the
police officials cannot be ignored.
14. Such being the case insofar as the demand and acceptance
of bribe alleged against A1, the recovery of bribe is alleged to have
been made from A2 at a far away place from the office of A1 and it
was not made from A1. Strictly speaking, the prosecution has not
come out with any legal evidence to connect A1 with A2 and even as
per the prosecution, A2 is said to be a water can supplier and the
prosecution has relied upon his statements to link him with A1. Apart
from such statement obtained from A2, no independent witness has
spoken about A2 or his acquaintance with A1. Particularly, the police
officials, who had been sent to secure A2 by PW9, Trap Laying Officer
have not been examined by the prosecution. Thereby, this court has
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to conclude that the prosecution has failed to prove the conspiracy of
A1 and A2 rather any connection between them by them by letting any
legal evidence.
15. In this regard, it will be useful to refer to the decision in
P.Satyanarayana Murthy vs. District Inspector of Police, State
of Andhra Pradesh and another (2015) 10 SCC 152), wherein, a
Full Bench of the Apex Court has held as under:-
"20. This Court in A. Subair v. State of Kerala
[(2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] ,
while dwelling on the purport of the statutory
prescription of Sections 7 and 13(1)(d) of the Act
ruled that (at SCC p. 593, para 28) the
prosecution has to prove the charge thereunder
beyond reasonable doubt like any other criminal
offence and that the accused should be considered
to be innocent till it is established otherwise by
proper proof of demand and acceptance of illegal
gratification, which are vital ingredients necessary
to be proved to record a conviction.
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21. In State of Kerala v. C.P. Rao [(2011) 6
SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2
SCC (L&S) 714] , this Court, reiterating its earlier
dictum, vis-à-vis the same offences, held that
mere recovery by itself, would not prove the
charge against the accused and in absence of any
evidence to prove payment of bribe or to show
that the accused had voluntarily accepted the
money knowing it to be bribe, conviction cannot be
sustained.
22. In a recent enunciation by this Court to
discern the imperative prerequisites of Sections 7
and 13 of the Act, it has been underlined in B.
Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC
55 : (2014) 5 SCC (Cri) 543] in unequivocal terms,
that mere possession and recovery of currency
notes from an accused without proof of demand
would not establish an offence under Section 7 as
well as Sections 13(1)(d)(i) and (ii) of the Act. It
has been propounded that in the absence of any
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proof of demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be proved.
The proof of demand, thus, has been held to be an
indispensable essentiality and of permeating
mandate for an offence under Sections 7 and 13 of
the Act. Qua Section 20 of the Act, which permits a
presumption as envisaged therein, it has been held
that while it is extendable only to an offence under
Section 7 and not to those under Sections
13(1)(d)(i) and (ii) of the Act, it is contingent as
well on the proof of acceptance of illegal
gratification for doing or forbearing to do any
official act. Such proof of acceptance of illegal
gratification, it was emphasised, could follow only
if there was proof of demand. Axiomatically, it was
held that in absence of proof of demand, such legal
presumption under Section 20 of the Act would
also not arise.
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23. The proof of demand of illegal
gratification, thus, is the gravamen of the offence
under Sections 7 and 13(1)(d)(i) and (ii) of the Act
and in absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of any
amount allegedly by way of illegal gratification or
recovery thereof, dehors the proof of demand, ipso
facto, would thus not be sufficient to bring home
the charge under these two sections of the Act. As
a corollary, failure of the prosecution to prove the
demand for illegal gratification would be fatal and
mere recovery of the amount from the person
accused of the offence under Section 7 or 13 of
the Act would not entail his conviction thereunder."
16. In the case on hand, the prosecution has miserably failed to
prove the demand and acceptance of bribe by A1 by letting any
independent witness apart from the interested witness viz., the de
facto complainant. The prosecution has not bothered to examine the
wife of PW3 viz., Thaiyalnayagi, on whose behalf the I.E. Code was
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applied by PW3.
17. Coming to the question of registration of case, the
prosecution has not cleared the cloud of suspicion surrounding the
same. The specific case of the prosecution is that on receipt of the
written complaint from the de facto complainant at the Railway Guest
House, PW9, the Trap Laying Officer had forwarded the same
alongwith his enquiry report, Ex.P37 to the Superintendent of Police
through Fax at 12.30 pm with the assistance of the Police Constable
Balachandrapillai and subsequently, he received instructions from the
Superintendent of Police over phone to further investigate the case on
the complaint lodged by the de facto complainant Arokiyanathan, as a
case has been registered against A1-Arun, Junior Assistant in the office
of the Joint Director General of Foreign Trade under Section 7 of the
Prevention of Corruption Act by the Inspector of Police, Lawrence
under FIR, Ex.P42 and accordingly, PW9 had proceeded with the
investigation. However, strangely, the said Lawrence had not been
examined on the side of the prosecution. Such a lapse on the part of
the prosecution assumes much significance when Ex.D2 is perused.
When the time of registration of the complaint itself is shown as 12.42
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pm in the FIR, the fax remarks found at the top of Ex.D2, copy of the
FIR produced by the defence would disclose that it had been sent from
CBI, Chennai on 23.1.2009 at 6.41 am itself, which falsifies the
version of PW9, Trap Laying Officer that he had received the written
complaint from PW3 at 9.30 am on 23.1.2009, forwarded the same
alongwith his enquiry report, Ex.P37 to the Superintendent of Police
through Fax at 12.30 pm with the assistance of the Police Constable
Balachandrapillai and thereafter, he proceeded with the investigation
on further instructions from the Superintendent of Police. Further it is
seen that the endorsement showing the time when the FIR was sent to
court appears to be 10.30 pm on 23.1.2009. This goes to the root of
the case and the entire case of the prosecution falls like a pack of
cards by such discrepancy. Further, the non-examination of the
members of the trap team who are alleged to have apprehended A2
and said to have recovered the tainted money also creates a doubt
with regard to the case of the prosecution on the aspect of recovery of
tainted money.
18. All the above aspects point out that the prosecution has
failed to prove its case beyond all reasonable doubts and in such
circumstances, the prosecution cannot be allowed to enure the benefit
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of statutory presumption under Section 20 of the Prevention of
Corruption Act and thereby, the appellants are entitled to acquittal.
19. In the result, the Criminal Appeals stand allowed. The
impugned judgment of conviction and sentence is hereby set aside.
The appellants are acquitted from the charges levelled against them.
The bail bond, if any executed by the Appellants, shall stand cancelled
and the fine amount paid, if any, shall be refunded to them.
5.1.2024.
Index: Yes/No.
Internet: Yes/No.
ssk.
To
1. Special Judge,
Puducherry.
2. The Sub Inspector of Police,
C.B.I., ACB, Chennai.
3. The Special Public Prosecutor for CBI,
High Court, Madras.
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A.D.JAGADISH CHANDIRA, J.
ssk.
Crl. Appeal Nos.265 & 266 of 2015
5.1.2024.
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