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2001 DIGILAW 587 (MAD)

M. Palanisamy And Another v. State

2001-06-08

M.KARPAGAVINAYAGAM

body2001
Judgment :- Palanisamy, the first appellant, was convicted for the offences under Ss. 7 and 13(1)(d) read with S. 13(2) of the Prevention of Corruption Act. He was sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- for the offence under S. 7 of the Act, and to undergo R.I. for one year and to pay a fine of Rs. 300/- for the offence under S. 13(1)(d) read with S. 13(2) of the Prevention of Corruption Act, 1988. Natarajan, the second appellants was convicted for the offences under Ss. 12 and 13(1)(d) read with S. 13(2) of the Prevention of Corruption Act. He was sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- for the offence under S. 12 of the Act and to undergo R.I. for one year and to pay a fine of Rs. 300/- for the offence under S. 13(1)(d) read with S. 13(2) of the Act. Challenging the above convictions and sentences, the appellants preferred this common appeal. The case of the prosecution in brief is as follows :- (a) Aravindan (P.W. 3) and his sister approached the Tahsildar for obtaining community certificates, since they were in need of the same forgetting scholarship. On 7-6-1989, he presented two applications Exs. P-3 and P-4, one for himself and another for his sister, to the Tahsildar, who, in turn, endorsed and forwarded the same to the Village Administrative Officer for enquiry and to give the certificates. (b) Since P.W. 3 himself was asked to hand over the same to the Village Administrative Officer, on 8-6-1989 at 11.00 a.m., P.W. 3 came to the V.A.O.'s office, Palanisamy, the first appellant, is the Village Administrative Officer. On production of the said records to the first appellant, he made enquiries regarding the case of P.W. 3 and other details and asked him to meet him in his office at 5.00 p.m. on the same day. Accordingly, on 8-6-1989 at 5.00 p.m., P.W. 3 went and met the Village Administrative Officer at his office. The Village Administrative Officer signed the community certificates and asked P.W. 3 to pay Rs. 50/- each for two certificates and instructed his Assistant (A2) to hand over the certificates after collecting the said amount. (c) His Assistant is Natarajan, the second appellant. The Village Administrative Officer signed the community certificates and asked P.W. 3 to pay Rs. 50/- each for two certificates and instructed his Assistant (A2) to hand over the certificates after collecting the said amount. (c) His Assistant is Natarajan, the second appellant. P.W. 3 pleaded that he was not in a position to give that such amount. So, the first appellant reduced his demand to Rs. 25/- for each certificate. When P.W. 3 informed that only Rs. 10 was with him, to first appellant asked him to get the required amount from his house before 5.30 p.m. and hand over the amount to his Assistant (A2) and collect the certificates. (d) The first appellant (A1) further stated that if P.W. 3 was not able to come within the time, he could come to the office on the next day morning and collect the certificates from his assistant, the second appellant, after making payment of the money. (e) Since P.W. 3 did not incline to give bribe, on 9-6-1989 at about 9.00 a.m., he went to the vigilance office and gave a complaint to P.W. 11 Inspector of Police, Vigilance. A case was registered in Crime No. 5 of 1989 under S. 7 of the Prevention of Corruption Act, 1988 and P.W. 11 took up investigation of the case. (f) On the same day, P.W. 11 requested the services of the officials for being witnesses for the trap. Accordingly, Mylsamy (P.W. 4), who was working as Co-operative Sub-Registrar came to the vigilance office. In his presence, P.W. 3 produced the amount of Rs. 50/- to the Inspector of Police. The currency notes were smeared with phenolphthalein powder and P.W. 11 explained its consequence. (g) P.W. 3 was instructed to pay the amount to the accused only on demand. He was asked to signal about the receipt of the amount by wiping out his face using his kerchief. P.W. 4 Mylsamy, the Co-operative Sub-Registrar, was requested to accompany the complainant (P.W. 3) in order to hear the conversation between the accused and the complainant and to witness the payment of the amount. (h) A mahazar was prepared for the demonstration and the same was signed by the witnesses. Ex. P.7 is the mahazar. Thereafter, the officials along with the complainant went to the office of the Village Administrative Officer at 12 noon. The vehicle was stopped near the office. P.Ws. (h) A mahazar was prepared for the demonstration and the same was signed by the witnesses. Ex. P.7 is the mahazar. Thereafter, the officials along with the complainant went to the office of the Village Administrative Officer at 12 noon. The vehicle was stopped near the office. P.Ws. 3 and 4 alone were asked to proceed inside the office of the first appellant. (i) Inside the office, the first appellant and the second appellant were present. P.W. 3 informed the first appellant that he had come to collect the certificates. The first appellant asked him as to why he did not come with the money in the last evening to collect the certificates. The first appellant (A1) further instructed the second appellant (A2) to collect the amount from P.W. 3 and give the certificates. Accordingly, he gave the currency notes to the second appellant. After receiving the same, the second appellant obtained signature from P.W. 3 in the register and kept the said amount in the register itself and put the same in the shelf. (j) P.W. 3 came out of the office and gave the prearranged signal. P.W. 11 and other officials went inside the office. P.W. 3 pointed out that the first appellant was the person on whose direction, he paid the amount to his Assistant (A2), the second appellant. However, at that time, his Assistant (A2) was not found in the seat. (k) P.W. 3 handed over the certificates to P.W. 11, Inspector of Police and pointed out the identity of the register where the money was kept. P.W. 11 removed the register. which was in the shelf. When the register was examined, at the last page one Rs. 20/- currency note and one Rs. 10/- currency note were found. On comparison, their serial numbers were found to be tallied. (l) When P.W. 11 asked P.W. 3 about the balance of Rs. 20/-, he was able to find that the said Rs. 20/- currency note was in his pocket itself. P.W. 3 informed that it was left inadvertently, since the second appellant accepted and received the said amount and kept the same in the register without counting. All these registers were seized. (m) In the meantime, police were sent to trace out the second appellant, who managed to escape from the V.A.O.'s room. P.W. 3 informed that it was left inadvertently, since the second appellant accepted and received the said amount and kept the same in the register without counting. All these registers were seized. (m) In the meantime, police were sent to trace out the second appellant, who managed to escape from the V.A.O.'s room. Ultimately, at 4.30 p.m., the Police Constable traced him in his house and brought him to the V.A.O.'s office. The phenolphthalein test was conducted on the right hand fingers of the second appellant and the same proved positive. (n) When the second appellant was questioned, he admitted having received the money from the complainant (P.W. 3) on the direction of the first appellant and kept it in the register even without counting. Thereafter, he was also arrested. (o) P.W. 11 took up further investigation, examined other witnesses and obtained sanctions and filed charge-sheet as against both the appellants for the above referred to offences. During the course of trial, on behalf of the prosecution, P.Ws. 1 to 11 were examined, Exs. P.1 to P.30 were filed and M.Os. 1 to M.O. 3 were marked. On completion of trial, the trial Court found that both the appellants were guilty of the offences and convicted and sentenced them as referred to above. Hence, this appeal. The learned counsel appearing for the appellants would mainly contend that Exs. P-1 and P-2 sanctions obtained for prosecuting both the appellants and the evidence of P.Ws. 1 and 2, who granted sanctions, would not indicate that the sanctioning authority has applied his mind before granting the said sanctions. It is also contended that the evidence of P.Ws. 3, 4 and 11 are not reliable. He would cite the decisions of the Bombay High Court in Arun Prahlad Kale v. State of Maharashtra, 1992 Cri LJ 1142 and Omprakash Shankarlal Sharma v. State of Maharashtra, 1993 Cri LJ 3175 in order to support his plea in regard to sanction. On the above submissions, the learned Government Advocate appearing for the respondent is heard. I have given my anxious consideration to the submissions made by the counsel for the respective parties. The prosecution case is that the first appellant demanded Rs. On the above submissions, the learned Government Advocate appearing for the respondent is heard. I have given my anxious consideration to the submissions made by the counsel for the respective parties. The prosecution case is that the first appellant demanded Rs. 50/- for issuing community certificates to P.W. 3 and instructed the second appellant, who was employed as Assistant under him, to collect the said amount from P.W. 3 and hand over the community certificates, which were already prepared. It is the case of the first appellant that P.W. 3 came and handed over Exs. P-3 and P-4 applications, which were forwarded by the Tahsildar on 8-6-1989, and compelled him to issue the community certificates on the same day itself and since the first appellant told him that he would not give those certificates without any enquiry immediately and there ensured a quarrel and due to that, a false complaint had been given by P.W. 3 to the vigilance offence as if he came on 9-6-1989 and handed over the amount to his Assistant (A2) on his direction. According to the second appellant, on the date of trap, i.e., on 9-6-1989, he was on leave and he never attended the office nor received any money from P.W. 3. The evidence of P.W. 3 Aravindan (the complainant) and the evidence of P.W. 8 Deputy Tahsildar would clearly show that P.W. 8 endorsed the applications Exs. P-3 and P-4 given by P.W. 3 and directed P.W. 3 to approach the Village Administrative Officer, the first appellant, for getting the community certificates on 7-6-1989. On 8-6-1989, the community certificates were prepared by the first appellant and the same were handed over to the second appellant and P.W. 3 was asked on that date to hand over the amount of Rs. 50/- to the second appellant and collect the certificates. Since he was not interested in giving bribe, P.W. 3 gave a complaint to P.W. 11 Inspector of Police. The complaint is Ex. P-6. In the said complaint, it is specifically stated that P.W. 3 was asked by the first appellant to give the amount to the second appellant and collect the certificates either on 8-6-1989 evening or on 9-6-1989 morning. These things would show that there was a demand of bribe made by the first appellant. The complaint is Ex. P-6. In the said complaint, it is specifically stated that P.W. 3 was asked by the first appellant to give the amount to the second appellant and collect the certificates either on 8-6-1989 evening or on 9-6-1989 morning. These things would show that there was a demand of bribe made by the first appellant. In regard to the receipt of the amount, there are materials not only from P.W. 3, but also from P.W. 4, who was the mahazar witness and working as the Co-operative Sub-Registrar. According to them, both the appellants asked P.W. 3 why he did not turn up on 8-6-1989 evening for collecting the certificates after payment of money and as per the instruction of the first appellant, the second appellant received the amount from P.W. 3 and handed over the certificates Exs. P-4 and P-5 after obtaining signature in the register. The currency notes, which were handed over by P.W. 3 to the second appellant, were also kept in the register. Receipt of money and handing over of the certificates had also been spoken to by P.W. 7, another Assistant working in the V.A.O.'s office. Besides this, the evidence of P.W. 1 would also make it clear that the amount, which was kept in the Register by the appellants, was recovered during the course of trap. Furthermore, at 4.30 p.m., the second appellant was traced out and phenolphthalein test was conducted on his fingers and the same was proved positive. A separate mahazar was prepared by P.W. 11 and at that time, the second appellant admitted having received the amount and kept the same in the register. He also admitted that on seeking P.W. 3 being accompanied by some officer, he got suspicion and made his escape through the rear door in the V.A.O.'s room. These things would clearly prove that the accusation levelled by P.W. 3 with regard to the issuing of community certificates is true. Furthermore, the trial Court also elaborately discussed the evidence and gave proper reason to conclude that the prosecution had established its case beyond reasonable doubt. In regard to sanction, the learned counsel for the appellants has cited two decisions of the Bombay High Court in Arun Prahlad Kale v. State of Maharashtra, 1992 Cri LJ 1142 and Omprakash Shankarlal Sharma v. State of Maharashtra, 1993 Cri LJ 3175. In regard to sanction, the learned counsel for the appellants has cited two decisions of the Bombay High Court in Arun Prahlad Kale v. State of Maharashtra, 1992 Cri LJ 1142 and Omprakash Shankarlal Sharma v. State of Maharashtra, 1993 Cri LJ 3175. The conclusion arrived at in those decisions by the Bombay High Court regarding non-application of mind while granting sanction would not apply to the present facts of the case because a perusal of Exs. P-1 and P-2 sanctions would clearly show that all the details about the prosecution case had been mentioned in those sanctions and P.Ws. 1 and 2, the sanctioning authorities, also would depose that they applied their mind and granted the sanctions. Under those circumstances, I do not find any ground to hold that the sanctions granted in these cases would suffer from any infirmity. In this context, the learned Government Advocate would point out that S. 465, Cr. P.C. would provide that the conviction or the finding cannot be set aside merely for some irregularity in the sanction. As noted above, in this case, I find that the sanctions had been granted in accordance with law. Under those circumstances, I do not find any ground to allow this appeal and in my view, the sentence is also not excessive, as it is the minimum sentence prescribed under the Act. Therefore, the appeal is liable to be dismissed as devoid of merits and accordingly, same is dismissed. Appeal dismissed.