Madras High Court
D.Manoharan vs State By on 10 September, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
Crl.A.No.103 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.08.2024
Pronounced on : 10.09.2024
CORAM : JUSTICE N.SESHASAYEE
Crl.A.No.103 of 2017
D.Manoharan .... Appellant / Accused
Vs
State by:
The Deputy Superintendent of Police
Vigilance and Anti-Corruption
Salem.
(Crime No.5 / AC / 2003) .... Respondent / Complainant
Prayer : Criminal Appeal filed under Section 374 Cr.P.C. r/w. Section 27 of the
P.C. Act, 1989, praying to set aside the judgment dated 30.01.2017 in Special
C.C.36/2014 on the file of the Court of Special Judge (Special Court for Trial of
Cases under the Prevention of Corruption Act), Salem.
For Appellant : Mr.N.A.Ravindran
For Respondent : Dr.C.E.Pratap
Government Advocate [Crl. Side]
1/16
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Crl.A.No.103 of 2017
JUDGMENT
The appellant herein was convicted for offences under Sections 7 and 13(2)
r/w.13(1)(d) of the Prevention of Corruption Act, 1988, and was sentenced to
one year rigorous imprisonment for offence under Section 7 and two years
rigorous imprisonment for offence under Section 13(1)(d) of the said Act,
besides, the Special Court has imposed on him a fine of Rs.5,000/- on each
count, in default of which, an additional prison term of six months for offence
under Section 7, and one year for offence under Section 13(1)(d) of the Act.
2.1 The prosecution line of defence opens as below :
● On 26.10.2001, a certain Karuppana Nadar passed away. His
grandson is P.W.2. He is the defacto-complainant in this case.
Sometime in March, 2003, P.W.2 had applied for death certificate of
his grandfather Karuppana Nadar. P.W.2 made Ext.P3, application
for obtaining the death certificate of Karuppana Nadar.
● The appellant/accused was a Junior Assistant in Taluk Office,
Vazhapadi. He was incharge of issuance of birth and death certificate
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desk. Since the death of Karuppana Nadar was not registered, he
approached P.W.2 for obtaining necessary certificate/report from the
VAO concerned. P.W.2 would now return with this certificate and
approached the appellant again. The appellant would now direct P.W.2
to approach the concerned Judicial Magistrate Court for obtaining
necessary orders for registering the death of Karuppana Nadar.
Accordingly, P.W.2 approached the concerned jurisdictional
Magistrate who instituted necessary proceedings. On 30.05.2003,
P.W.2 had obtained an order from the Court for registering the death
of Karuppana Nadar.
● Thereafter on 02.06.2003, P.W.2 approached the appellant herein with
his earlier application along with the order of the Court. Nothing
happened on those papers for next 20 days. It is in this backdrop,
P.W.2 approached the appellant on 24.06.2003, and enquired about the
death certificate. The appellant would now direct P.W.2 to approach
the record clerk of the Taluk Office, and when so approached, the said
record clerk had directed P.W.2 to obtain a report from VAO.
● After complying with such directions, on 26.06.2003, P.W.2 returned
to the Taluk Office along with the report of the VAO, and after paying
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necessary charges for obtaining the death certificate, he met the
appellant again. It was on that date, the appellant is alleged to have
demanded Rs.250/- as bribe.
● P.W.2 would again met the appellant on 27.06.2003, and the appellant
continued to insist his earlier demand for Rs.250/-.
● It is in these circumstances, P.W.2 has preferred Ext.P2 complaint
before P.W.9 at around 10.00 a.m., on 30.06.2003, receiving which,
P.W.9 registered Ext.P24, FIR.
● At 12.00 noon on that date, vide Ext.P27, P.W.9 sent a requisition to
the Superintending Engineer, TWAD Board, Salem to make available
P.W.3 and one Chellaiah to be the trap-witnesses. After complying
with the preliminary proceedings for laying the trap, the Investigating
Officer sets up P.W.2 with five 50/- rupee notes smeared with
naphthalene powder after noting down their numbers in the presence
of the trap-witnesses, and left P.W.2 and P.W.3 at the Taluk Office.
He had also instructed P.W.2 to give necessary signal in the manner
the latter was instructed to give.
● P.W.2 went into the Taluk Office at about 04.15 p.m., and did not find
the appellant in his seat. Later the appellant arrived and P.W.2 had
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handed over five 50/- rupee currency notes as was instructed to him by
P.W.9.
● Curiously enough P.W.2 would get back two of those five currencies,
and gave necessary signal to the trap team. The trap team entered the
Taluk Office and completed the remaining part of the test. The time
was between 4.40 p.m., to 4.50 p.m., when appellant was found to
possess three 50/- rupee notes, which was set up for trapping him.
● P.W.9 promptly arrested the appellant immediately after preparing
necessary mahazar.
● Later P.W.9 applied to P.W.1 to obtain Ext.P1 sanction. He would
record the statement of witnesses, completed the investigation and
P.W.10 laid his final report, wherein he had accused that the appellant
had committed offence under Section 7 and Section 13(1)(d) of PCA.
3. The trial Court took cognizance of the offence and framed charges for the
aforesaid offences, which when confronted to the appellant, the later denied.
4. The matter went to trial, during which the prosecution examined P.W.1 to
P.W.10. The prosecution also produced Ext.P1 to Ext.P27 and also M.O.1 to
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M.O.7
5. After appreciating the evidence made available by the prosecution, the
learned Special Judge found the appellant guilty of the charges he was accused
of and sentenced him, as stated in the opening paragraph. This judgment of the
trial Court is now under challenge.
6. The learned counsel for the appellant made the following submissions :
a) The conduct of P.W.2 that sets in motion the trap for the appellant
carries significant elements of artificiality. Here is a certain P.W.2
who makes a statement in Ext.P2 complaint that the appellant
demanded Rs.250/- as bribe, sets up five 50/- rupee notes smeared
with naphthalene powder but hands over Rs.250/- and obtains back
Rs.100/-. If according to P.W.2, the appellant was steadfast in his
demand for Rs.250/- right from 26.06.2003 as well as on 27.06.2003,
it is incongruent to reason why the appellant should return back two
50/- rupee notes which was part of the bribe sum, back to the bribe
giver. This fact though in itself may not be adequate to prove the
cognizance of the accused, yet, has to be read not in isolation but in
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conjunction with other aspects.
b) The day chosen for trap was 30.06.2003. It was the last day of the
month. On the last day of every month, the appellant was under an
official assignment to go to the Treasury at Salem which admittedly is
about 45 kms from Vazhapadi Taluk office. Therefore, even if the
prosecution line of the allegation were to be appreciated, then the
appellant knowing fully well that he would be on other official duty on
30.06.2003, he would not have required P.W.2 to come with the bribe
money on that date.
c) Indeed D.W.2, the staff at the Salem Collectorate has testified that one
Ponnuvel, the Assistant in Vazhapadi Taluk Office had given him a
call on that evening at around 4.15 p.m. requiring him to direct the
appellant to come to the Taluk office. And acting on the said call,
when appellant was not found in the Taluk office, D.W.2 had gone to
the house of the appellant, picked him in his motorcycle and dropped
him at Salem old bus-stand. Taking into account the time required to
travel from Salem old bus-stand to Vazhapadi, it would be difficult to
presume that the appellant might have reached the Taluk office before
4.40 p.m., The prosecution has not been able to discredit the version
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of D.W.2 as to the facts that he had spoken.
d) P.W.5, the Tahsildar had testified in his cross-examination that after
the trap, the appellant had told P.W.9 that he had earlier advanced
Rs.150/- to P.W.2 and it is this money P.W.2 had returned. But when
the money was repaid, he actually returned two 50/- rupee notes,
because the loan amount by P.W.2 was only Rs.150/-, the appellant
had returned the remaining Rs.100/- . Now P.W.5 is a prosecution
witness and it is he who had testified this fact. Therefore, the
prosecution was under an obligation to investigate whether Rs.150/-
was part of the loan transaction or part of the bribe money. Now it is
here the conduct of P.W.2 is not in harmony with the manner of the
crime involving payment and receipt of bribe happened as projected
by the prosecution.
e) When trap happens, it brings a surprise to the accused. Caught in a
situation such as that, he might not have too much time to create a
false story that he has paid Rs.100/- back, because that Rs.100/- was in
excess of the loan amount. This conduct of the appellant ought to
have weighed by the trial Judge.
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7. The learned Prosecutor argued that the fact remains that the appellant was
found to be in possession of those specific currency notes which were tested
positive in the naphthalene test. Once the appellant is caught red handed in
terms of Section 20 of P.C. Act, there is a presumption in aid of the prosecution
and the burden is on the appellant to adduce necessary evidence to rebut it. This
is not established in this case.
8. The rival submissions are carefully weighed. What is not in dispute by the
defence is that the appellant was found to be in possession of three notes of
Rs.50/- denomination, which proved positive in the naphthalene powder test,
and very obviously, the burden is on him to produce such evidence as may be
sufficient to rebut the presumption which Sec.20 of PC Act has created in
favour of the prosecution. It needs to be underscored here that in all cases
where any statutory presumption is created in favour of the prosecution, with
the accused only been given an opportunity to rebut the effect of such
presumption, the accused need not prove his rebuttal beyond all reasonable
doubts, but only to the extent of creating a preponderating probability as to
render the prosecution case shaky. The point here is whether the appellant has
created circumstances as to improbabilise the prosecution case?
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9.The appellant has come forward with three circumstances to rebut the
presumption under Sec.20 of the PC Act, and their effect is now discussed:
a) The first aspect is the probability of the appellant officially available in
his office at 4.40 p.m. on 30.06.2003. On that date, the appellant was
admittedly on other duty. Being the last day of the month, he was
assigned the duty to present the salary bills at the District Treasury at
Salem. Ext.P20, the attendance register states that the appellant was on
other duty. It is neither denied by the prosecution, nor can it be denied by
it. If that is so, why should the appellant return to Vazhapapadi Taluk
Office, where lies the SOC? After all if he was the official who was to
make ready the necessary papers for the Tahasildar (PW 5) to issue the
death certificate to P.W.2, something IO contends in his cross
examination, then, he still would want the same official for preparing the
same set of papers the next day, and hence he could have required P.W.2
to come to the office on the following day (01.07.2003). The appellant
need not have troubled himself travelling about 30 k.m. for receiving a
paltry Rs.250/- as bribe, for the same could be obtained even on the next
day. Here, the artificiality of the prosecution case lies in the fact that an
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official, who was not on his official duty in his office but was on duty
elsewhere, had returned to his office, travelling little over 30 k.m. for no
official purpose, had offered to walk into the trap that was laid for him.
The prosecution attempts to paint its story with lots of innocence, but it
needs to be told that it hardly meets the eye of reason. Could the
appellant have arrived back in his office, unless his presence was
required by someone there? Here, the prosecution case strikes a blank,
but it probabilises the defence version.
b) The appellant would state that after his day's work at the Treasury he had
returned to his house, but was summoned to arrive at his office. The
intimation from his office was received by D.W.2 which he was on duty
at the Collectorate, Salem, situated some 30 k.m from his office, and
D.W.2 says that he had gone to the house of the appellant, informed him
about the message received and dropped him at the Salem bus stand.
Appellant's wife D.W.1 also speaks to this fact. The prosecution states
that these witnesses might have been set up by the appellant, but then
how else this fact could be proved? After all this appellant is a lower
rung official at the Taluk Office, and that he was in his house could be
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proved only by his wife and the one who dropped him at the bus stand. If
only the appellant was on duty in his office that day, it would have been
difficult for him to make the court believe a version such as the one he
has now presented, but not when he was officially not required to be in
his office on the date the trap had laid. Is there any difficulty for the I.O
to lay the trap couple of days later, after a failed first attempt?
Prosecution case shows tendency to wobble here.
c) The third point is startling. P.W.2 would state that as was advised by the
P.W.9, he handed over all the five Rs.50/- notes which were soon to be
put to naphthalene test, but he got back two of the notes given. And why?
It was because P.W.2 told the appellant that he had no money to go back
home. And the bribe-taker suddenly had become a good Samaritan, and
overpowered by his empathy for the bribe-giver, the former had returned
Rs.100/- back to the latter. Is it believable? If the defence version is
analysed, the accused would state that he had earlier lent Rs.150/- to
P.W.2, but when the money was returned Rs.100/- as paid in excess, and
that this excess Rs.100/- was returned to P.W.2. And this version is
corroborated by P.W.5, the Tahasildar, who would depose in his cross
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examination that after the trap, the appellant had told P.W.9 that the
former had only received the money which he had advanced to P.W.2.
There is far greater credibility and probability which the version of the appellant
has managed to create.
10. And, the next aspect is that, if as found by this court that the appellant had
arrived at the Taluk office after travelling 30 k.m. by a public transport system,
then going by the version of D.W.2, it is least likely that he could have been at
his office at 4.40 p.m when according to D.W.2 he had dropped the appellant at
the Salem bus stand only around 4.30 p.m., on 30.06.2003.
11. Has not the prosecution come up with a badly penned script resulting in an
unbelievably bad screen-play? This Court holds the case of the prosecution as
projected somewhere lacks the credibility and the defence version is able pierce
the prosecution case with greater assurance of probability of its version.
12. To conclude, this appeal is allowed and the judgment of the learned Special
Judge (Special Court for Trial of Cases under the Prevention of Corruption Act),
Salem, dated 30.01.2017 in Special C.C.36/2014 is set aside.
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10.09.2024
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
ds
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To:
1.The Special Judge
(Special Court for Trial of Cases under the
Prevention of Corruption Act)
Salem.
2.The Deputy Superintendent of Police
Vigilance and Anti-Corruption
Salem.
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N.SESHASAYEE.J.,
ds
Pre-delivery Judgment in
Crl.A.103 of 2017
10.09.2024
https://www.mhc.tn.gov.in/judis
