Madras High Court

R.Selvaraj vs State Represented By Its on 15 May, 2025

                                                                                       Crl.A.(MD).No.363 of 2018



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                       Reserved on         :       03.01.2025
                                      Pronounced on :              15.05.2025

                                                        CORAM

                           THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                         Crl.A.(MD).No.363 of 2018

                     R.Selvaraj                                            ... Appellant/Sole Accused

                                                      Vs.
                     State represented by its,
                     The Inspector of Police,
                     Vigilance and Anti Corruption Wing,
                     Virudhunagar,
                     Virudhunagar District.
                     (Crime No.7 of 2009)                                  ... Respondent/Complainant

                     PRAYER: Criminal Appeal has been filed under Section 378 of
                     Criminal Procedure Code, to call for the records of the Special Court for
                     Prevention of Corruption Act Cases cum Chief Judicial Magistrate,
                     Virudhunagar District as Srivilliputhur, in Spl.C.C.No.5 of 2014 and set
                     aside the judgment dated 10.07.2018.
                                  For appellant         : Mr.J.Kathir Hussain

                                  For respondent        : Mr.R.Meenakshi Sundaram
                                                          Additional Public Prosecutor



                     1/20




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                                                                                             Crl.A.(MD).No.363 of 2018



                                                           JUDGMENT

This Criminal Appeal is filed to set aside the judgment of the

Special Court for Prevention of Corruption Act Cases cum Chief Judicial

Magistrate, Virudhunagar District as Srivilliputhur, in Spl.C.C.No.5 of

2014, dated 10.07.2018.

2.The sole accused in Spl.C.C.No.5 of 2014 on the file of the

Special Court for Prevention of Corruption Act Cases cum Chief Judicial

Magistrate, Virudhunagar District as Srivilliputhur, has filed this appeal

challenging the conviction and sentence imposed against him under

Section 7 & 13(1)(d) r/w 13(2) of Prevention of Corruption Act, for his

alleged act of demand and acceptance of bribe amount of Rs.2,000/- on

09.09.2009 to transfer patta in the name of P.W.2.

3. The case of the prosecution, in brief, is as follows:

The appellant was working as Village Administrative Officer in

Vellayudam Village, Arupukottai Taluk, Virudhunagar District from

01.12.2006 to 09.09.2009. On 23.05.2003, P.W.2 purchased a land from

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one Annalatchumi. Thereafter, he gave an application to the Tashildar,

Aruppukottai, for transferring the patta in his name. That application was

received by the office of Tashildar, Aruppukottai, on 11.08.2008. After

registering the same, it was handed over to the appellant through the

Village Assistant for his recommendation. On 07.09.2009, when P.W.2

approached the appellant, he demanded a sum of Rs.2,000/- as bribe.

P.W.2 was not willing to give bribe amount and approached P.W.15,

Inspector of Police, Vigilance and Anti Corruption Wing, Virudhunagar,

Virudhunagar District, and gave a complaint to P.W.15. P.W.15/Trap

Laying Officer received the same and registered a case in Crime No.7 of

2009 under Section 7 of the Prevention of Corruption Act, 1988. After

registration of the case, P.W.15 made a preliminary enquiry and followed

the pre trap procedure and he called two officials namely, P.W.3, Junior

Assistant, Virudhunagar Local Government Finance Audit Office, and

another official witness, namely, Gangaiya, Statistics Department. After

arrival of P.W.3 and another official, P.W.15 demonstrated the

siginificance of the phenolphthalein test to P.W.2 using the amount

brought by him in the presence of P.W.3 and another official witness and

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thereafter, he prepared the Entrustment Mahazar, Ex.P.7. After

preparation of the Enstrustment Mahazar, P.W.15 instructed P.W.2

to hand over the tainted amount to the appellant, if he made a demand

and upon receipt of the said amount, instructed P.W.2 to give a signal.

Further instructed P.W.3 to go along with P.W.2 and observe the events

that would happen during handing over the said bribe amount to the

appellant. Thereafter, the trap team along with P.W.2, P.W.3 and another

official witness reached the office of the appellant and waited for the

appellant. At that time, the appellant came there and after talking to

P.W.2, went to his room in the upstairs. Thereafter, P.W.2 followed him

to the upstairs room of the appellant and P.W.3 watched the same

through the window of the room. The appellant reiterated the demand

and received the bribe amount of Rs.2,000/- from P.W.2 and put the said

amount in his left side pocket of the shirt and the same was also

witnessed by P.W.3. Thereafter, P.W.2 gave a signal to P.W.15 and his

team and on receiving the signal, P.W.15 and his team entered into the

office of the appellant along with P.W.2 and P.W.2 identified the

appellant. Thereafter, P.W.15 conducted the phenolphthalein test in the

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hands of the appellant and the hand wash of the appellant turned pink in

colour. On ascertaining the handling of the bribe amount by the

appellant, P.W.15 questioned about the bribe amount, which was

received from P.W.2. The appellant handed over the bribe amount to

P.W.15 and the same was verified with the Entrustment Mahazar.

Thereafter, P.W.15 conducted the phenolphthalein test, in the appellant's

left side shirt pocket and the said wash also turned pink in colour. After

completion of the above test, P.W.15 arrested the accused and prepared

the Recovery Mahazar under Ex.P.8 and also collected number of

documents from the appellant. Thereafter, P.W.15 conducted search in

the appellant's house and found no incriminating materials and the search

mahazar was marked as Ex.P.9. Thereafter, P.W.15 sent the appellant for

the reamand. Thereafter, he prepared the observation mahazar as well as

the sketch. On the following day, P.W.15 handed over the records to

P.W.16, the Investigation Officer.

4. After completion of investigation, P.W.16 filed the final report

against the accused for the offences punishable under Sections 7 and

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13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988, before the

Special Court for Prevention of Corruption Act Cases cum Chief Judicial

Magistrate, Virudhunagar District as Srivilliputhur. The learned Special

Court for Prevention of Corruption Act Cases cum Chief Judicial

Magistrate, Virudhunagar District as Srivilliputhur, took the final report

on file in Spl.C.C.No.5 of 2014. After appearance of the accused, copies

of records were furnished to him under Section 207 Cr.P.C. The learned

Special Judge, on perusal of records and on hearing both sides and being

satisfied that there existed a prima facie case against the

accused/appellant, framed charges under Sections 7 and 13(1)(d) r/w

13(2) of Prevention of Corruption Act, 1988, and the same were read

over and explained to him and on being questioned, the

accused/appellant denied the charges and pleaded not guilty and stood

for trial.

5. The prosecution, in order to prove its case, had examined 16

witnesses as P.W.1 to P.W.16 and exhibited 20 documents as Ex.P.1 to

Ex.P.20 and marked five material objects as M.O.1 to M.O.5. Thereafter,

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the learned trial Judge questioned the accused under Section 313 Cr.P.C.,

by putting the incriminating materials available against him in the

prosecution evidence. He denied the same as false and he neither

examined any witness nor produced any documents on his side.

6. The learned Special Judge, upon considering the evidence

adduced and on hearing the arguments on both sides, passed the

impugned judgment, on 10.07.2018 by convicting the accused for the

offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of

Corruption Act, 1988, and sentencing him to undergo 3 years Rigorous

Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 6

months Rigorous Imprisonment for the offence under Section 7 of

Prevention of Corruption Act, 1988 and sentencing him to undergo 3

years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default

to undergo 6 months Rigorous Imprisonment for the offence under

Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988, and

further directed the sentences to run concurrently. The fine amount was

paid by the appellant.

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7. Aggrieved by the said judgment of conviction and sentence, the

accused has preferred this appeal.

8.The learned counsel appearing for the appellant submitted that

the demand is sine qua non to pass the conviction under Sections 7 and

13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988, and it has not

been established in this case. Except the evidence of P.W.1, no other

evidence is available to coroborrate the demand made by the appellant on

07.09.2009. Further, no evidence is available to reiterate the demand on

09.09.2009 except the evidence of P.W.2. Even as per the prosecution

case, when the amount was given to the appellant, P.W.3 was standing

outside the room and had seen through the window of the appellant's

office room. Therefore, P.W.3 has no occasion to hear the conversation

between the appellant and P.W.2. Even though, P.W.4 was examined by

the prosecution to prove the demand and acceptance on the part of the

appellant from P.W.2, the said witness turned hostile. Hence, only on the

basis of the evidence of witnesses namely, P.W.2 & P.W.3, the learned

trial Judge convicted the appellant and committed error in convicting the

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appellant holding that the demand and acceptance was proved. Hence, he

prayed to allow this appeal.

9.The learned Additional Public Prosecutor submitted that on

07.09.2009, the appellant demanded bribe amount of Rs.2,000/- to

measure the land, sub-divide and issue patta and he also reiterated the

said demand on 09.09.2009 and the same was witnessesed by P.W.3, the

independent official witness. Even though, he is said to have seen the

transaction through the window of the alleged Village Administrative

Office, the evidence of P.W.2 is that the Village Administrative Officer

also enquired about the presence of P.W.3. Even though, there was

non-preparation of any sketch for the evidence of P.W.2 and P.W.3, the

portion of the evidence of P.W.4 clearly proved the presence of P.W.2 &

P.W.3 in the occurrence place and the demand made by the appellant.

Therefore, the learned Additional Public Prosecutor seeks to reject the

contention of the counsel for the appellant that the demand has not been

proved. Hence, he prayed for dismissal of the appeal.

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10. This Court considered the rival submissions made by the

learned counsel appearing for the appellant and the learned Additional

Public Prosecutor appearing for the respondent and perused the materials

available on record and the precedents relied upon by them.

11.The question arises for consideration in this appeal is whether

the prosecution has established the case beyond reasonable doubt

against the appellant and the conviction and sentence imposed by the

learned trial Judge against the appellant can be sustained or not?

12. According to the prosecution, P.W.2, the owner of the property

comprised in S.No.239/4, submitted an application under Ex.P.2 along

with the sale deed to the Thasildar office for the purpose of obtaining

separate patta and also paid the relevant fees under Ex.P.3. The said

application was processed and the same was forwarded to the appellant's

office as per the evidence of P.W.6. P.W.6 clearly deposed that P.W.2

gave the application on 12.08.2009 and the same was forwarded to the

appellant after making necessary endorsement. Therefore, the said file

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was in the custody of the appellant. P.W.2 specifically deposed that when

he approached the appellant on 07.09.2009, he demanded a sum of

Rs.2,000/- to measure the land, sub divide the same and transfer of patta

in his name. P.W.2 was not willing to give a bribe and hence, he make a

complaint before P.W.15/the Trap Laying Officer. P.W.15 after making

enquiry, registered a case under Ex.P.19 for the offence under Section 7

of the Prevention of Corruption Act, 1988, and called the two official

witnesses and prepared the entrustment mahazar after the demonstration

of phenolphthalein test to P.W.2 in the presence of P.W.3 and another

official witness. Thereafter, both P.W.2 and P.W.3 went to the appellant's

office and the appellant reiterated the demand, which was already made

on 07.09.2009. Further, he accepted the amount and put the same in his

shirt pocket and the same was witnessesed by P.W.3. Even though, P.W.

4 was declared as hostile witness, he admitted the presence of P.W.2 in

the Village Administrative office and thereafter, entry into the Village

Administrative office. In view of that, the presence of P.W.2 is proved

beyond reasonable doubt. The evidence of P.W.2 has been corroborated

by P.W.3 that the appellant demanded the amount of Rs.2,000/- that he

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saw the transaction through the window of the room of the Village

Administrative Office. In this aspect, the evidence of P.W.2 and P.W.3 is

cogent and trustworthy. The entire narration of the said events are also

coroborated by the recovery mahaza, the contemporaneous document

prepared immediately after the trap on the said date and also sent to the

Court immediately. In view of the above circumstances, when P.W.2

clearly deposed about the demand on 07.09.2009 and 09.09.2009 and

when P.W.3 also supported the said demand on 09.09.2009, this Court

has no hesitation to hold that the demand was clearly proved beyond

reasonable doubt.

13. Apart from that, the other circumstance is the recovery of

entire files, which were in the custody of the appellant relating to the

transfer of patta. The same was witnessed by his own assistant namely,

the Village Assistant. He clearly deposed about the handling of the said

file by the appllant. P.W.4 & P.W.5 naratted the entire events of transfer

of patta and the documents relating to the request of P.W.2, which were

also marked as Ex.P.9 to Ex.P.12. Even though, there is a detailed

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deposition relating to the transfer of said file, there was no cross-

examination on the side of the appellant. The transfer of file to the

Village Administrative Office was clearly proved and hence, demand and

the acceptance of amount was clearly proved through the evidence of

P.W.2 and P.W.3 and the Trap Laying Officer. There was no explanation

on the side of the appellant relating to the recovery of the bribe amount

from his pocket.

14. The submission of the learned counsel for the appellant that

the pocket of the appellant's shirt was not sent to the chemical analysis is

concerned, on the date of the recovery itself, the shirt pocket of the

appellant was subjected to the phenolphthalein test by the Trap Laying

Officer and the result was positive. Thereafter, the said solution was sent

to the lab and the same affirmed the presence of phenolphthalein powder.

Therefore, the non-sending of the shirt of the appellant is misconceived

one and the sending of the tested solution of the shirt pocket of the

appellant is clearly proved and the same was supported by the evidence

of expert and the documents.

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15. The submission of the learned counsel for the appellant is that

the sanction was granted without considering the fact that the appellant

has no authority to grant patta. This Court perused the sanction order.

The Sanctioning Authority,P.W.1, applied his mind to the documents

furnished by the Investigating Agency to accord sanction for

prosecution. He specifically deposed that he appled his mind, to the

statement of witnessess recorded by the Investigating Agency and

perused the other relavant documents. The sanction order also proved the

application of mind. Merely because, the Village Administrative Officer

has no power to grant patta does not create any bar to prosecute the

accused under Section 7 of the Prevention of Corruption Act. P.W.2

made a request to P.W.6 and the file was processed and sent to the

appellant/Village Administrative Officer. In the said circumstances, the

submission of the appellant that he has no role in the further process of

issuance of patta to P.W.2, deserves to be rejected. Even otherwise as

held by the Hon'ble Supreme Court, it is not necessary to prove his

official capacity to discharge duty mentioned in the final report. In this

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case, he is one of the authorities to verify the records and proceed

further. For that purpose, the document was forwarded to the Village

Administrative Officer, namely, the appellant. Therefore, the case of the

appellant that the sanctioning authority has not considered that the

appellant is not the competent authority in issuing patta is not legally

correct. The sanctioning authority has applied his mind and he has

accorded sanction after satisfaction that there was materials to proceed

against the appellant. It is a case of the demand and acceptance of bribe

amount. Number of witnesses have been examined and their statements

were also annexed with the documents. The communication between the

Tahsildar office and the appellant office also proved through legal

evidence. In the said circumstances, sanction issued by sactioning

authority based on his subjective satisfaction cannot found fault with.

Therefore, the submission of the learned counsel for the appellant that

without application of mind, the sanction was issued by P.W.1, cannot

be accepted.

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16. The learned counsel for the appellant submitted that there is no

CDR report to prove the telephonic conversation between the appellant

and P.W.2 at the time of occurrence. According to him, P.W.2 along with

official witnesses, visited the Village Administrative Office on

09.09.2009 and called the appellant through phone. Thereafter, he met

the appellant. Hence, for that purpose, the telephonic communication

between them should have been furnished. But, the prosecution failed to

furnish the same. Hence, the appellant counsel submitted that the above

said failure of investigating officer affected the credibility of witnesses

and this Court declines to accept the said argument on the ground that the

presence of P.W.2 is proved through the evidence of P.W.3 and P.W.4.

P.W.4, the independent witness clearly deposed about the presence of

P.W.2 and meeting of the appellant. Therefore, the contention of the

appellant, in this regard is liable to be rejected.

17. The learned counsel for the appellant submitted that the other

official witness has not been examined. Hence, adverse inference can be

taken against the prosecution. The factum of the recovery of amount and

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reiteration of the demand was proved through the evidence of P.W.2 and

P.W.3. It is not necessary to examine all the witnesses to speak about a

particular fact. When P.W.2 and P.W.3 clearly deposed about the

recovery of the amount, this Court does not find any reason to interfere

with the said finding of the learned trial Judge. The non-examination of

the other independent witnesses has no consequence to disbelieve the

evidedence of P.W.2 and P.W.3 about the demand and recovery of the

bribe amount. Therefore, the case of the appellant that the entire trap

shrouded with mystry is not acceptable one. Therefore, in all aspects the

the prosecution, clearly proved the case beyond all reasonable doubt.

Hence, this Court is inclined to confirm the conviction passed by the trial

Court.

18. However, considering the fact that the appellant is aged about

70 years and also suffering from various age related ailments, this Court

is inclined to reduce the sentence of imprisonment imposed by the

learned trial Judge from three years to one year.

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19. Accordingly, this Criminal Appeal is partly allowed on the

following terms:

(i)the conviction passed against the appellant for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act in Special Case No.5 of 2014, by the learned Special Court for Prevention of Corruption Act Cases cum Chief Judicial Magistrate, Virudhunagar District as Srivilliputhur, vide judgment dated 10.07.2018, is hereby confirmed.

(ii) the sentence of imprisonment to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 6 months Rigorous Imprisonment for the offence under Section 7 of Prevention of Corruption Act, 1988 and sentencing him to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 6 months Rigorous Imprisonment for the offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act,

is modified into

“to undergo one year rigorous imprisonment for the offence under Section 7 of the Prevention of Corruption Act; and to undergo one year rigorous imprisonment for the offence under Section 13(1)(d)

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r/w 13(2) of the Prevention of Corruption Act and the said sentences are to run concurrently and the judgment relating to the fine amount is hereby confirmed”.

Iii) Bail bond executed by the appellant herein is cancelled and the Court below is hereby directed to take steps to secure the appellant to undergo remaining period of sentence of imprisonment.