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2014 DIGILAW 867 (MAD)

Arokiaraj v. State by Inspector of Police

2014-04-08

ARUNA JAGADEESAN

body2014
JUDGMENT 1. This Criminal Appeal is filed against the judgment of conviction and sentence dated 28.5.2008 made in Special CC.No.6/2003 by the learned Special Judge Cum Chief Judicial Magistrate Chengalput, thereby (a) convicting and sentencing each of the Appellants/A1 and A2 for the offence under Section 7 of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 5000/- each, in default to undergo one year Rigorous Imprisonment and (b) convicting and sentencing each of the Appellants/A1 and A2 for the offence under Section 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.5000/- each, in default to undergo one year Rigorous Imprisonment and (c) ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows: a. The 1st Appellant/A1 worked as the Special Sub Inspector of Police from 17.12.1998 to 18.11.2002 and the 2nd Appellant/A2 worked as the Head Constable from 14.10.2001 to 13.11.2002 in the Thoraipakkam Police Station. P.W.2 Ramarao is the defacto Complainant and the owner of Lorry bearing Reg.No.TN-02-H-8914. The said lorry met with an accident near Karaipakkam, causing injury to a Pedestrian John Rose Moorthy P.W.5. In connection with the said accident, the driver of the said lorry Parasuraman P.W.6 and also the said Lorry were detained in Thoraipakkam Police Station. On 17.11.2002 at 5.00 p.m. P.W.2 met the 1st Appellant in the said Police Station and requested him to release the driver and the lorry, for which, A1 demanded an amount of Rs.1500/-as illegal gratification from P.W.2.for releasing the lorry driver and for sending the lorry for inspection by the Motor Vehicles Inspector and P.W.2 expressed his inability to meet the said demand and left the Police Station. b. On 18.11.2002 at 11.45 a.m. again when P.W.2 met A1, A1 insisted him to give Rs.1500/- as illegal gratification. Since P.W.2 was not willing to give the said bribe amount to A1, he lodged a complaint on 18.11.2002 at 3.00 p.m. to the Deputy Superintendent of Police, Vigilance and Anti Corruption, City-II Detachment, Adyar, Chennai-20 and the said complaint was forwarded to P.W.13, Inspector of Police, Vigilance and Anti Corruption, City-II Detachment, Adyar, Chennai-20 for investigation. Since P.W.2 was not willing to give the said bribe amount to A1, he lodged a complaint on 18.11.2002 at 3.00 p.m. to the Deputy Superintendent of Police, Vigilance and Anti Corruption, City-II Detachment, Adyar, Chennai-20 and the said complaint was forwarded to P.W.13, Inspector of Police, Vigilance and Anti Corruption, City-II Detachment, Adyar, Chennai-20 for investigation. c. On receipt of the complaint Ex.P2, P.W.13 registered a case in Cr.No.16/AC/2002/CC-II against the 1st Appellant/A1 under Section 7 of the Prevention of Corruption Act, 1988 and prepared Ex.P9 First Information Report and arranged for trap proceedings. Two official witnesses, namely, P.W.3 Chandrasekaran, Assistant and P.W.4 Selvamani, Assistant, Department of Technical Education, Chennai-25 were summoned and they were introduced to P.W.2. P.W.2 gave Rs.1500/-, three currency notes (M.O.1 series) of Rs.500/- denomination to P.W.13. Thereafter, P.W.13 demonstrated the phenolphthalein test and also explained the significance of the phenolphthalein test to P.W.2 and the other two official witnesses. P.W.13 asked P.W.2 to hand over the tainted amount to the 1st Appellant/A1, if he made a demand of the same and also told them that if the accused accepted the money, he should come out of the office and give a prearranged signal, by removing and cleaning his specs. The said proceedings were recorded in entrustment mahazar Ex.P3. d. On 13.11.2002 between 6.00 p.m. and 6.20 p.m. P.W.2 along with the trap party and the official witness P.W.3 went to the office of the accused. P.W.2 met A1 inside the office and A1 reiterated the demand from P.W.2 and directed P.W.2 to give the amount of Rs.1500/- to A2 and P.W.2 gave the tainted money to A2, who kept the same in his left side shirt pocket, P.W.2 came out and gave the prearranged signal. On seeing the prearranged signal, P.W.13 and P.W.4 went inside the office of the accused. P.W.2 identified the appellants P.W.13. Then P.W.3 arranged for Phenolphthalein test and conducted Phenolphthalein test on the fingers of both hands of A2 and on his shirt pocket proved positive. The solutions, in which both the right, and left hand fingers of A2 were dipped, turned pink. P.W.13 seized the tainted notes M.O.1 (series) and then sealed the bottles after pouring the solution in those bottles, M.O.2 and M.O.3 under mazahar. On comparing the numbers of the seized tainted notes with that of the numbers mentioned in the mahazar, it tallied. P.W.13 seized the tainted notes M.O.1 (series) and then sealed the bottles after pouring the solution in those bottles, M.O.2 and M.O.3 under mazahar. On comparing the numbers of the seized tainted notes with that of the numbers mentioned in the mahazar, it tallied. Then P.W.13 examined the Appellants and recorded their statements and prepared a rough sketch Ex.P10 and sent the file to P.W.14, Inspector of Police for further investigation. e. P.W.14, on receipt of the case file, conducted further investigation and examined the witnesses and recorded their statements. After completing investigation and after receiving forensic report Ex.P8 and after obtaining sanction Ex.P1 from the Superintendent of Police, Chengalput East District, P.W.14 laid a final report against the accused under sections 7 and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act. 3. The case was taken on file in Special CC.No.6/2003 by the learned Special Judge cum Chief Judicial Magistrate, Chengalput and necessary charges were framed. In order to substantiate the charges Levelled against the accused, the Prosecution examined as many as 14 witnesses (P.W.1 to P.W.14) and also relied on Exs.P1 to P10 and five Material objects (Mos.1 to 5). On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. The Court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. Mr. V. Padmanabhan, the learned senior counsel for the Appellants contended that the Conviction and sentence passed by the Trial Court is not based on any legal evidence. The learned counsel has submitted that the evidence of P.W.2, the complainant indicated that nothing was demanded directly from P.W.2 by the 1st Appellant and there is evidence on record to establish that in pursuance of demand of the 1st Appellant/A1, the 2nd Appellant/A2 obtained illegal gratification. The learned counsel also pointed out to the evidence of P.W.2 that he was treated as hostile by the Prosecution as he had gone back on his complaint and the statement made to the Police. The learned counsel also pointed out to the evidence of P.W.2 that he was treated as hostile by the Prosecution as he had gone back on his complaint and the statement made to the Police. The learned senior counsel submitted that the evidence of P.W.3 (trap witness) cannot be relied upon and pointed out that he has gone to the extern of a false witness. 5. The learned senior counsel submitted that the Trial Court failed to appreciate that P.W.2, P.W.3, P.W.5 and P.W.7, the drivers of the lorry of the defacto complainant do not specify the reason for the demand, while there is abundant evidence on record that the money was directed to be brought for the medical expenses of the injured and the same was inferable from the evidence of P.W.5 and P.W.6. In this Context, he also referred to the evidence of P.W.9, head constable of that Police Station that the money was demanded for the medical expenses of the injured and payable to the injured. The learned senior counsel contended that this is a case where the Appellants had been sought to be implicated in a total false case and that there was neither a demand nor receipt of bribe and that the case put up by the defence is plausible. 6. On the other hand, Mr. A.N. Thambudurai, the learned Additional Public Prosecutor for the State supported the impugned judgment of the Trial Court and contended that the evidence of the complainant P.W.2 finds corroboration from the evidence of P.W.3 and the other witnesses and even if the testimony of the trap witness is read with certain reservation, the fact that the 2nd Appellant received the tainted notes on the instructions of the 1st Appellant stands confirmed. The learned Additional Public Prosecutor submitted that the Trial Court has appreciated the material on record properly and it cannot be said that the view taken by the Trial Court does not emerge from the evidence on the record or conclusion drawn by the court below is perverse. The learned Additional Public Prosecutor contended that the submission made by the learned senior counsel for the Appellants cannot be accepted since nothing has come on the record to show that those witnesses had any animus or animosity with the Appellants. 7. The learned Additional Public Prosecutor contended that the submission made by the learned senior counsel for the Appellants cannot be accepted since nothing has come on the record to show that those witnesses had any animus or animosity with the Appellants. 7. I have given my careful and anxious consideration to the rival contentions put forward by the learned counsel on either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction and sentence. 8. The learned senior counsel in the course of arguments submitted plethora of decisions of this Court and the Honourable Supreme Court in support of his submission that mere recovery is not enough to record conviction and the demand, payment and recovery must be proved conjointly. 9. The legal position, which emerges regaring appreciation evidence in a trap, can be summarized as under: (i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money. (ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law. (iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption of course is rebuttable. (iv) If the accused give some defence that can be scrutinized by the test of preponderance of probability while the prosecution must prove its case beyond reasonable doubt. 10. The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant which becomes the basis of laying a trap by the investigating agency. Then, it is for the prosecution to again prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond reasonable doubt. 11. Then, it is for the prosecution to again prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond reasonable doubt. 11. It is the version of P.W.2 that on 17.11.2002 his lorry met with an accident at the jurisdictional limit of Thoraipakkam Police Station where the Appellants were working as Special Sub Inspector and Head Constable respectively and when he went to the Police Station along with his another driver Vellan P.W.7, nothing had happened in the Police Station thereby indicating that no demand of bribe was made by the Appellants. It is his version that on 18.11.2002 his driver Vellan P.W.7 telephoned to P.W.2 and informed him that the Appellants are demanding Rs. 1500/- and that the vehicle would be released only if they pay the said amount. So, it is clear that no bribe was demanded directly from P.W.2 by the Appellants and the question of parting away of Rs. 1500/- came to be informed through driver Vellan P.W.7 to P.W.2. Whereas in Ex. P2 complaint, it is alleged that the Appellants demanded bribe amount of Rs. 1500/- directly from P.W.2 which totally in contra to the evidence of P.W.2 before the court. That apart, his evidence clearly indicated that he himself voluntarily gave the money to the 2nd Appellant and the first Appellant never demanded any money. Since P.W.2 did not support the Prosecution in respect of demand made by the 1st Appellant at the time of trap, he was treated as hostile and was extensively cross examined by the Prosecution. However, P.W.2 has reasserted in his cross examination done by the defence that he had given complaint only on the information furnished to him by his driver Vellan, P.W.7 and he also admitted that the person involved in the accident namely P.W.5 was admitted in the hospital. Therefore, on the basis of the evidence of P.W.2, it could not be stated that the accused demanded the illegal gratification from P.W.2 at the time of trap and also prior to the trap in view of contradictory version of P.W.2. 12. Therefore, on the basis of the evidence of P.W.2, it could not be stated that the accused demanded the illegal gratification from P.W.2 at the time of trap and also prior to the trap in view of contradictory version of P.W.2. 12. The learned senior counsel for the Appellants relied upon the decision of the Honourable Supreme Court reported in Panalal Damodar Rathi v. State of Maharashtra AIR 1979 SC 119 wherein the Honourable Supreme Court held that in the absence of corroboration of the evidence of the complaint regarding the demand for money, his evidence alone cannot be accepted. The Honourable Supreme Court has considered this aspect in paragraphs 9 and 10 of the judgment and held that it is unsafe to base the conviction on the sole testimony of the panch witness. In the said case, there was no mention about the Appellant asking the complaint whether he had brought the money asked for. 13. The learned senior counsel for the Appellants also relied upon the decisions of this court reported in M. Rajendran v. State 2011 1 MWN Crl 602, N. Thangarajuly and Another v. State (2001) 1 MLJ Crl 1050, A.V. Vijayaranagan and Others v. State (2010) 1 MLJ 541 and D. Dass, Inspector of Police, Cuddalore v. State (2010) 2 MLJ (Crl) 225, wherein this court reiterated the legal position that the demand of illegal gratification is sine quo non for the offence and mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused where the substantial evidence of Prosecution is not reliable. 14. In this case, as discussed above the Prosecution has miserably failed to prove the alleged demand made by the Appellants both prior to the trap and at the time of trap. As rightly pointed out by the learned senior counsel for the Appellants, the version of P.W.2 and P.W.3 is nothing but a conglomeration of contradictions. In my view, their evidence in unworthy of any credence. 15. Mere proof of receipt of money by the 2nd Appellant, in the absence of proof of demand of illegal gratification, is not sufficient to prove the guilt of the accused. In my view, their evidence in unworthy of any credence. 15. Mere proof of receipt of money by the 2nd Appellant, in the absence of proof of demand of illegal gratification, is not sufficient to prove the guilt of the accused. It is well settled by the a catena of decisions of the Honourable Supreme Court that mere proof of receipt of money by an accused, in the absence of proof of demand and acceptance of money as illegal gratification, will not be sufficient to establish the guilt of the accused in a corruption case. The Honourable Supreme Court has held in T. Subramanian v. State of Tamil Nadu (2006) 1 SCC (Crl) 401 : LNIND 2006 SC 13 thus: “Mere proof of receipt of money by accused, in the absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilty of the accused. If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification accused would be entitled to acquittal.” 16. In the said backdrop of the case, the question now arises for consideration is as to whether the amount was paid to the Appellants by way of illegal gratification or for any other purpose as contended by defence. The sole question, therefore, is whether the explanation offered by the Appellants can be accepted. 17. In the present case, the evidence of P.W.3 is not available to support the Prosecution case. This court is constrained to point out to the evidence of Prosecution favourable to the defence which probabilise the case of the defence. It is the defence version that the Appellant was made to believe that the payment was made for medical expenses of the injured P.W.5 who sustained injuries in the road accident involving the vehicle of the complaint P.W.2. A case was also registered under Section 279 and 337 of IPC in Cr. No. 710 of 2002 on the file of the Thoraipakkam Police Station, wherein the Appellants served as Special Sub Inspector and Head Constable respectively. 18. It is the admitted case that P.W.5 was injured and admitted in a private hospital. P.W.5 has stated that his son-in-law one Ramanujam gave a complaint to the Police regarding the accident and his son-in-law went to the Police Station when he was admitted in the hospital. 18. It is the admitted case that P.W.5 was injured and admitted in a private hospital. P.W.5 has stated that his son-in-law one Ramanujam gave a complaint to the Police regarding the accident and his son-in-law went to the Police Station when he was admitted in the hospital. He had also deposed that the driver of the lorry assured to give money for medical expenses to the police officials. P.W.6, the driver of the lorry who is said to have caused the accident had admitted the involvement of his vehicle in the accident and P.W.5 being injured and admitted in the hospital. He had also deposed to the effect that he had assured P.W.5 to get money for medical expenses from his employer. His evidence also indicated that the 1st Appellant assured P.W.2 to release the lorry if the medical expenses are paid by P.W.2. In his cross examination P.W.6 had deposed that the relatives of the injured P.W.5 demanded money for medical expenses. 19. P.W.7, Vellan another driver who accompanied P.W.2 to the Police Station would depose that the relatives of the injured demanded money when he visited the Police Station along with P.W.2 and about the factum of P.W.2 making arrangement to admit the injured to the hospital. 20. P.W.9, Manoharan, Head Constable of Thoraipakkam Police Station would speak about the accident of the lorry and P.W.5 getting injured in the said accident and also about the factum of P.W.5 taking treatment in the hospital. P.W.9 also speaks about the demand made by the son-in-law of P.W.5 to get money from the owner of the lorry for the medical expenses of his father-in-law. 21. Though P.W.13, the trap laying officer would admit the seizure of the case file relating to Cr. No. 710 of 2002 of the Thoraipakkam Police Station but strangely did not even whisper a word about the enquires made by him regarding the accident. He did not enquire the Doctors at the Hospital soon after the accident and he has not made any efforts to find out as to whether any demand was made by P.W.5 or his relatives towards medical expenses. 22. There is no reason why the above said witnesses, namely, P.W.5, P.W.6, P.W.7 and P.W.9 who are the Prosecution witnesses, should support the version of the accused, as stated above, if that was not the true version. 22. There is no reason why the above said witnesses, namely, P.W.5, P.W.6, P.W.7 and P.W.9 who are the Prosecution witnesses, should support the version of the accused, as stated above, if that was not the true version. The version of the accused/Appellants before the Trial Court in their statement under Section 313 of Cr. PC was that of innocence and false implication. They have stated that the amount was paid for the medical expenses of the inured for the injuries sustained in the accident. Having regard to the facts and circumstances of this case, the defence version cannot be said to be wholly improbable. It is, therefore, clear that the defence of the Appellants is more probable and convincing. I am satisfied that the Appellants have been able to prove that the explanation given by them was both probable and reasonable. 23. For the aforesaid reasons, this Court has no hesitation to hold that the Prosecution has miserably failed to prove the charges against the Appellants/accused in this case beyond reasonable doubt and as such, the irresistible and inevitable conclusion of this Court is that the impugned judgment of conviction and sentence is unsustainable in law. 24. In the result, this Criminal Appeal is allowed and the impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charged leveled against them. The bail bond if any executed by them shall stand canceled and the fine amount if any paid by them shall be refunded. Appeal allowed.