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2015 DIGILAW 2589 (MAD)

Jeyaseelan v. State of Tamil Nadu

2015-07-22

P.R.SHIVAKUMAR

body2015
JUDGMENT The sole accused in C.C.(Spl)No.39 of 2003 on the file of the Special Judge under the Prevention of Corruption Act, 1988/Chief Judicial Magistrate, Ramanathapuram, was prosecuted for offences under Sections 7 and 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988 found guilty as per the charges and convicted and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-with a default sentence of simple imprisonment for one month for the offence under Section 7 and one year rigorous imprisonment without fine for the offence under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. The substantive sentences were directed to run concurrently. Challenging the judgement of the trial Court dated 12.1.2007 regarding conviction as well as sentence, he has preferred the present appeal under Section 374 of Cr.P.C. 2. For the sake of convenience, the appellant and the respondent are referred to as the accused and prosecution respectively. 3. The case of the prosecution as disearned from the oral and documentary evidence found on the side of the prosecution can be briefly stated as follows: The accused Jeyaseelan was a public servant and he was employed as village Administrative Officer of Pullamadai village, Thiruvadanai Taluk, Ramanathapuram District during the relevant period. P.W.2-Boominathan was working as a leading Fireman and was attached to the Fire Station of Thiruvadanai. The properties comprised in S.No.545/12 and S.No.386/9 in Pullamadai Village belonged to one Meenal, senior maternal aunt of P.W.1. However patta for the said properties came to be wrongly issued in the names of Nagesh @ Udayar and Murugandi(PW5) respectively. When he approached the Murugandi and informed him that the property comprised in S.Nos.386/9 belonged to Meenal and patta for the same had been wrongly issued in his name, he accepted for changing the patta in the name of P.W.2. Accordingly P.W.2-Boominathan and P.W. 5 Murugandi met the accused Jeyaseelan in his office on 03.02.2002 in the second floor of Meena Complex in R.S.Mangalam. After ascertaining the mutual consent of P.W.2-Boominathan and P.W.5-Murugandi, the accused took them to a Document Writer and caused a consent statemewnt to be executed by P.W.5. The said document was attested by two persons, namely Velu and Udayar. The accused also obtained an application from P.W.2 under Ex.P2 for the change of patta. After ascertaining the mutual consent of P.W.2-Boominathan and P.W.5-Murugandi, the accused took them to a Document Writer and caused a consent statemewnt to be executed by P.W.5. The said document was attested by two persons, namely Velu and Udayar. The accused also obtained an application from P.W.2 under Ex.P2 for the change of patta. Thereafter P.W.2 attended the grievance Day Meeting conducted at Perumalmadai school on 13.03.2002 and gave a petition for the change of patta. The accused who was there, asked P.W.2 to go and met him at his office. Meanwhile, on 28.02.2002, P.W.2 had submitted an application along with a Chellan evidencing payment of Rs.240/-, to the Tahsildar, Thiruvadanai under Ex.P3 for surveying the land. On 13.03.2002 between 2.00 p.m and 2.30 p.m. P.W.2 met the accused at his office room in R.S.Mangalam and made a request for survey of the land and for the change of patta. The accused demanded payment of a sum of Rs.2200/- as illegal gratification. When P.w.2 asked for reducing the amount, the accused informed him that it would be considered later. Thereafter on 21.03.2002 at about 7.30 A.M, while P.W.2 was on duty in the Fire Station of Thiruvadanai, the accused contacted him over phone and asked him to go to Pullamadai at 10.00 A.M as the surveyor was coming. Accordingly, P.W.2 availed two days leave and went to R.S.Mangalam, put Chinnakaruppan and along with him went to Pullamadai at 11.00 A.M. The Deputy Surveyor Arockiasamy was there along with the accused. After survey measurements were taken, they returned to R.S.Mangalam and at about 2.00 p.m the Deputy Surveyor departed. The accused took P.W.2 and P.W.1-Chinnakaruppan to his office room and asked him whether he could make payment of the amount demanded by him. When P.w.2 made a bargain, the accused accepted to get a sum of Rs.1150/-. Again P.W.2 met the accused on 23.03.2002, the accused informed him that he could not get patta unless he made payment of the amount demanded by him. When P.w.2 made a bargain, the accused accepted to get a sum of Rs.1150/-. Again P.W.2 met the accused on 23.03.2002, the accused informed him that he could not get patta unless he made payment of the amount demanded by him. After waiting for a few days, P.W.2 lodged a complaint with the Inspector of Police, Vigilance and Anti-corruption Wing, Ramanathapuram under Ex.P.5 on 26.03.2002 at about 4.45 p.m. P.W.11-Kulothunga Pandian, the then Inspector of Police, Vigilance and Anti-corruption Wing, Ramanathapuram received Ex.P5-complaint and registered a case in Crime No.2 of 2002 on the file of the Vigilance and Anti corruption Wing, Ramanathapuram for an offence under Section 7 of Prevention of Corruption Act, 1988. Thereafter he arranged for a trap and demonstrated the importance of Phenolphthalein test to P.W.3-Dhanavel, employed as Junior Assistant in Public Works Department, Ramanathapuram and one Raju, Steno-typist in District Industries Centre. He also caused eleven 100 rupees notes and one 50 rupees note brought by P.W.2 to be coated with Phenolphthalein and entrusted the same to P.W.2 with instructions to give the said money to the accused if a demand would be made by him. An entrustment mahazar was prepared in the presence of the above said persons under Ex.P7. Meanwhile, the application submitted by P.W.2 for the change of patta had been processed in the Taluk Office by P.W.6-Sebastian Koman and the file was placed for the orders of the Deputy Tahsildar. Pursuant to the orders of the Deputy Tahsildar, P.w.6 prepared the order for the change of patta with two copies. Office copy of the said order is Ex.P9. The said order, along with corrected 10(1) copy marked as Ex.P10, was handed over by P.W.6 to the accused in person. Necessary entry in Ex.P11-register of patta was made and the entry relating to the same was made under Ex.P12. 4. On 27.3.2002, the police party along with the defacto complainant and the witness started from Ramanathapuram at 9.00 A.m on and reached R.S.Mangalam at 10.15 a.m. P.w.2 and P.W.3-Dhanavel were sent to the Office Room of the accused whereas the police party with the other witness Raju were hiding at a distance. The accused again demanded Rs.1150/-. When P.W.2 asked him to reduce the amount, the accused refused to accept the request. Thereafter P.W.2 handed over the currency notes tainted with Phenolphthalein powder amounting to Rs.1150/-. The accused again demanded Rs.1150/-. When P.W.2 asked him to reduce the amount, the accused refused to accept the request. Thereafter P.W.2 handed over the currency notes tainted with Phenolphthalein powder amounting to Rs.1150/-. The accused received it, counted the same and put the same in a brown colour Rexin Bag. When P.W.2 wanted the accused to hand over the patta, the accused showed the original of the patta and informed him that the original did not bear Gopuram seal and that he would get the seal and then hand it over to him. The accused informed that P.W.2 should pay Rs.300/-or Rs.400/-for changing the entries in the 10(1) Register. Thereafter P.W.2 and P.W.3 came out and P.W.2 gave a signal as per pre-arrangement, pursuant to which P.W.10 and the police party entered the office room of the accused. When phenolphthalein test was conducted by preparing sodium carbonate solution and asking the accused to dip his fingers, it proved positive for the presence of phenolphthalein. When the accused was questioned whether he received any amount from P.W.2, he admitted the same and gave Mo4 Rexin Bag stating that he had put the money in the same. After comparing the serial numbers of the currency notes, they were recovered under Ex.P.7-Seizure Mahasar. Currency notes thus recovered have been marked as MO1 series. The patta(Ex.P9) produced by the accused was also recovered under the seizure mahasar Ex.P8, in the presence of witnesses. The subsequent searches made in the office of the accused at R.S.Mangalam and his residence at Devipattinam under Ex.P17 and Ex.P19 yielded no fruitful result. P.W.11 who returned with the accused and seized articles to the office of the Vigilance and Anti Corruption Wing, Ramanathapuram, sent the accused along with the material objects recovered by him to the Court, for remand. Then the investigation was taken over by P.W.12-Mohammed Yasim. 5. P.W.12 examined the witnesses, made arrangements for sending the sodium carbonate solution used in the trap operation to the Forensic lab for chemical examination, recovered the documents relating to the leave availed by P.w.2 and handed over the case diary file to Mr. Paul pandian, the Inspector of Police, Vigilance and Anticorruption, Sivagangai under the orders of the superiors got the order from P.W.1 sanctioning prosecution under Ex.P.1. The Inspector of Police Mr. Paul pandian, the Inspector of Police, Vigilance and Anticorruption, Sivagangai under the orders of the superiors got the order from P.W.1 sanctioning prosecution under Ex.P.1. The Inspector of Police Mr. Paulpandian completed the investigation and submitted a final report alleging the commission of offence under Sections 7, 13(2)r/w 13(1) (d)of the Prevention of Corruption Act, 1988. 6. In order to prove the case of prosecution P.W.1 to P.W.12 were examined and Ex.P1 to Ex.P22 were marked. Mos.1 to 4 were also produced. After completion of recording of evidence on the side of the prosecution, the accused was examined under Section 313(1)(b) of the Cr.P.C regarding the incriminating materials found in the evidence of the prosecution. The accused denied the evidence adduced against him, reiterated his plea that he was innocent and contended that the case was foisted against him. 7. One Udayar was examined as D.W.1 and one Krishnamoorthy as D.W.2. They spoke to the effect that the property belonging to one Meenal, wife of Narayanan, who was in Burma and had no issues, were enjoyed by Nagesh @ Udayar and Murugandi having obtained patta in their names; that P.W.2 claiming to have got the property by way of settlement approached Murugandi to change the patta in his name; that Murugandi agreed to do so provided he was paid a sum of Rs.5000/- towards tax paid by him and that after negotiation in the presence of the Document Writer viz., D.W.2-Krishnamolorthy, the amount was fixed at Rs.1150/- and that since P.W.2 did not make payment on that day, on the assurance of the accused and D.W.1, Murugandi executed a consent statement. 8. The learned trial Judge after hearing the arguments advanced on both sides, considered the evidence and came to the conclusion that the charges against the accused stood proved beyond reasonable doubt. Accordingly by a judgment dated 22.1.2007, the learned trial Judge found the accused guilty of the offences under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, convicted him and imposed punishment for the said offences as indicated supra. The judgement of the trial Court is challenged in this appeal both in respective of conviction and sentence. 9. The arguments advanced by Mr. M.V. Venkateseshan, learned counsel for the appellant and by Mr. T. Mohan, learned Additional Public Prosecutor appearing for the State are heard. The judgement of the trial Court is challenged in this appeal both in respective of conviction and sentence. 9. The arguments advanced by Mr. M.V. Venkateseshan, learned counsel for the appellant and by Mr. T. Mohan, learned Additional Public Prosecutor appearing for the State are heard. The copies of judgment and related documents produced in the form of typed set are taken into consideration. 10. Learned counsel for the accused (appellant) raised the following contentions: The learned trial Judge without properly appreciating the evidence and disregarding the vital contradictions and improbabilities found in the evidence adduced on the side of the prosecution, rendered an erroneous finding that the charges against the accused had been proved beyond reasonable doubt. The learned trial Judge failed to appreciate the admitted fact that the appellant was not competent to order transfer of patta or to get such an order and despatch the same to the concerned applicant. The learned trial Judge also failed to consider the fact that P.W.2 was able to get orders passed in his application for change of patta and for survey measurement in the Taluk Office itself and that the admitted practice was to despatch the orders directly to the party concerned and not through the Village Administrative Officer. The vital contradictions regarding the lodging of the complaint and the preparation for a trap were not considered by the learned trial Judge in proper perspective. The further fact that the witnesses in whose presence consent affidavit of Murugandi was obtained was not examined on the side of the prosecution and on the other hand, one of them was examined as a defence witness(D.W.1) to show that the amount agreed to be paid by P.W.2 was not illegal gratification and on the other hand, it was the amount agreed to be paid by him to Murugandi towards the tax paid by him in respect of the property regarding which change of patta was sought for. The learned trial Judge did not consider the cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt and that on the other hand, it shall be enough for the accused to prove the defence case on preponderance of probabilities. Had the trial Court applied the said principle in proper perspective, it would have held that the charges against the accused were not proved beyond reasonable doubt and the accused. Had the trial Court applied the said principle in proper perspective, it would have held that the charges against the accused were not proved beyond reasonable doubt and the accused. 11. Per contra, it is the case the contention learned Additional Public Prosecutor that the voluminous evidence regarding the demand of illegal gratification, lodging of complaint, laying of trap, executing the same, recovery of tainted money from the accused and also the recovery of the patta without Gopuram seal and the related copies were properly marshalled by the Court below and the Court below rightly came to the conclusion that the accused was guilty of the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. It is the further contention of the learned Additional Public Prosecutor that as against such clear proof made by the prosecution of the charges against the accused, the evidence adduced on the side of the accused was not reliable and was not sufficient even to prove his defence case on preponderance of probabilities and that therefore the appeal should be dismissed confirming the judgement of the trial Court convicting the accused for the offence with which he stood charged. It is also his further contention that the punishment imposed also cannot be stated to be harsh and disproportionate. 12. This Court paid its anxious consideration to the above said submissions made on both sides. 13. The prosecution case can be divided into stages: (1) The first meeting of P.W.2 with the accused on 20.02.2002 with the request for changing patta in respect of Survey No.386/2 in Pullamadai Village from the name of P.W.5-Murugandi to the name of P.W.2-Boominathan; (2) the second meeting of P.W.2 with the accused on 13.03.2002 when the alleged demand for payment of Rs.2,200/-as illegal gratification for arranging for the change of patta was made by the accused. (3) the third meeting made on 21.03.2002 at about 2 p.m in the office of the accused at R.S.Mangalam after the land was surveyed, in which meeting the accused is said to have reduced the demand from Rs.2200/-to Rs.1150/-; (4) the next meeting on 23.03.2002 when the accused allegedly reiterated his earlier demand; (5) lodging of the complaint, registration of the case and preparations made preliminary to the execution of the trap; (6) the execution of the trap in which the accused allegedly received a sum of Rs.1150/- from P.W.2 and seizure of the same by the police party and arrest of the accused; and (7) further investigation, sanction for prosecution and submission of the final report. 14. So far as the last lap of the prosecution case, namely further investigation sanction for prosecution and submission of the final report is concerned, no serious contest has been made, except the contention that the investigation was not impartial and the sanctioning authority accorded sanction for prosecution mechanically without applying his mind to the facts of the case. Hence, the said aspect need not be considered at the first instance. 15. P.W.2 met the accused on 20.02.2002 along with P.W.5-Murugandi for change of patta in respect of the above said land from the name of P.W.5-Murugandi to the name of P.W.2. It is pertinent to note that even before meeting the accused, P.W.2 had made preparations by purchasing a Rs.10/-stamp paper for obtaining consent statement of P.W.5-Murugandi. The same coupled with the fact that the defacto complainant (P.W.2) was working as a leading fireman in the Tamil Nadu Fire Service will show that he had received some kind of legal advice regarding the documents to be submitted along with application for change of patta. 16. It is the evidence of P.W.2 that only when he along with P.W.5 met the accused in his office on 20.02.2002, the accused wanted him to get a Rs.10/-stamp paper and bring it along with the concerned person from whose name patta was to be changed. In Ex.P.5-complaint he has referred to the said meeting as a day in the third week of February 2002 and that on the date of first meeting itself, the accused obtained an application from P.W.2 and a consent statement in a stamp paper from P.W.5-Murugandi. In Ex.P.5-complaint he has referred to the said meeting as a day in the third week of February 2002 and that on the date of first meeting itself, the accused obtained an application from P.W.2 and a consent statement in a stamp paper from P.W.5-Murugandi. P.W.5-Murugandi does not state that P.W.2-Boominathan had already met the accused and as per the instructions of the accused, P.W.2 took P.W.5 on 20.02.2002 to the office of the accused. However, P.W.2 wanted to introduce a new case by attempting to state that he had a meeting with the accused prior to 20.02.2002 with the accused and the accused instructed him to get a Rs.10/-stamp paper and bring it along with the concerned person from whose name patta has to be changed. Such an attempt is seen from the following extract from his evidence in chief examination:- 17. By the said evidence P.W.2 has made an attempt to show that he alone met the accused prior to 20.02.2002 and only on his instructions he and P.W.5-Murugandi met the accused in his office on 20.02.2002 and that the said meeting was the second meeting of P.W. 2 with the accused. Even if it is assumed that the evidence of P.W.2 that he alone met the accused 2 or 3 days prior to 20.02.2002 could be true, he has made a clear admission that at the time of such meeting and on 20.02.2002 when he and P.W.5 met the accused met the accused did not make any demand for illegal gratification then what transpired on 20.02.2002 shall assume importance. 18. It is the case of the accused that when P.W.2 wanted to change patta for the above mentioned property to his name, P.W.5-Murugandi agreed for the same but demanded a sum of Rs.5,000/-as the tax paid by him and that after mediation the amount was fixed at Rs.1,150/-It is the further case of the accused that since P.W.2 had not brought money, P.W-5-Murugandi agreed to execute the consent statement provided the document writer Krishnamoorthy (D.W.2) and the accused would assure him to get the amount from P.W.2 and that on their assurance, P.W.5-Murugandi executed the consent statement. Udaiyar, one of the attestors of the consent statement has spoken about the same when he deposed as D.W.1. The document writer also corroborated the same when deposed as D.W.2. Udaiyar, one of the attestors of the consent statement has spoken about the same when he deposed as D.W.1. The document writer also corroborated the same when deposed as D.W.2. The said evidence of D.Ws.1 and 2 are quite trustworthy and their reliability has not been shaken. Further consideration of the same is deferred to be dealt with in the later part of the judgment. 19. Be that as it may, it is an admitted case of the prosecution that either on 20.02.2002 or prior to the said date, the accused did not demand payment of any amount as illegal gratification for change of patta in respect of the property comprised in Survey No. 545/12 in Pullamadai Village. According to the prosecution case, for the first time, on 13.03.2002 the accused made a demand and the amount demanded at that point of time was Rs.2200/-. For the alleged demand made on 13.03.2002, there is no other evidence except the testimony of P.W.2. In Ex.P.5-complaint, the circumstances under which he met the accused on 13.03.2002 have been furnished by P.W. 2 as follows:- “On 13.03.2002, a grievance day meeting was conducted at Perumalmadai school and he gave an application in the said meeting for the change of patta in respect of Survey No.386/9 in his name. The accused who was present at that time asked P.W.2 to come to his office. During the interval between 2.00 p.m and 2.30 pm. P.W.2 went to R.S.Mangalam and requested the accused to make arrangements for the transfer of patta and for measuring the land. It is his evidence that at that point of time, the accused for the first time, made the demand. There is no other evidence to show that a grievance day meeting was conducted on 13.03.2002 at Perumalmadai School. In Ex.P.5-complaint also P.W.2 did not refer to the grievance day meeting and there is no averment in it to the effect that he met the accused on his invitation. On the other hand, he has simply stated in the complaint that after submitting an application to the Tahsildar, Thiruvadanai on 20.02.2002 for conducting survey of his lands in S.Nos.284/7B, 305/3, 315/4, he met the accused in his office at R.S.Mangalam on 13.03.2002 and that at that point of time, he wanted payment of Rs.2200/-as illegal gratification. On the other hand, he has simply stated in the complaint that after submitting an application to the Tahsildar, Thiruvadanai on 20.02.2002 for conducting survey of his lands in S.Nos.284/7B, 305/3, 315/4, he met the accused in his office at R.S.Mangalam on 13.03.2002 and that at that point of time, he wanted payment of Rs.2200/-as illegal gratification. Furthermore, when the grievance day meeting was conducted by a higher official of the Revenue Department, the Village Administrative Officer, who was present in the grievance day meeting, would not have gone back to his office before the conclusion of the meeting. There is no evidence as to when the grievance day meeting concluded. The evidence of P.W.2 is to the effect that in between 2.00 p.m and 2.30 p.m, he went to R.S.Mangalam and met the accused, whereupon the demand was made by the accused. It sounds quite improbable”. 20. The next meeting in which the accused made the demand is said to have taken place on 21.03.2002. As per the averment found in Ex.P.5-complaint based on the information given by the accused, P.W.2 he along with one Chinnakaruppan of Vijayamanickam Village went to Pullamadai village on 21.03.2002, the date on which the accused caused the land to be surveyed by the Assistant Surveyor Arokiasamy. The said Arokiasamy has not been examined. There is no evidence to show that the Assistant Surveyor Arokiasamy surveyed the land on 21.03.2002. It is the further case of the prosecution that after the measurements were taken, the accused invited P.W.2 and Chinnakaruppan to his office in R.S.Mangalam and at that point of time, he repeated the demand and after bargaining he reduced the demand to Rs.1150/-. The said Chinnakaruppan, examined as P.W.4, is a chance witness and he is also a relative of P.W.2. 21. From the evidence of P.W.4, it is obvious that he was employed as a farm servant for a daily wage of Rs.80/-under Poochiyammal-mother of P.W.2. It is also evident from his testimony that Poochiyammal was residing at a place called Vijayamanickam at a distance of more than 50 kms from Pullamadai village. He was not able to state the date on which the land was surveyed. It is not his evidence that after the survey was completed, the accused invited P.W.2 and P.W.4-Chinnakaruppan to his office at R.S.Mangalam. This is quite contrary to what is stated in Ex.P.5-complaint. He was not able to state the date on which the land was surveyed. It is not his evidence that after the survey was completed, the accused invited P.W.2 and P.W.4-Chinnakaruppan to his office at R.S.Mangalam. This is quite contrary to what is stated in Ex.P.5-complaint. The evidence of P.W.2 is to the effect that he along with P.W.4 met the accused after survey of the land was completed in his office on 21.03.2002, and at that point of time, without mentioning the amount, the accused asked him whether he could make payment of the amount, he had demanded earlier and that when P.W.2 requested for reducing the amount, the accused reduced his demand to Rs.1150/-. In this regard, the evidence of chance witness, namely P.W.4-Chinnakarupan, is quite contrary to the evidence of P.W.2 and it proves to be a material contradiction. 22. P.W.4 in his evidence in the chief examination itself stated that the accused demanded a sum of Rs.2500/- for the issuance of patta; that when the P.W.2 requested for reducing the amount to Rs.1150/- the accused did not agree for the same. The relevant portion of his testimony in vernacular is reproduced hereunder:- 23. The vital contradiction regarding the amount allegedly demanded by the accused, as rightly contended by the learned counsel for the appellant, escaped the attention of the Court below. Apart from the same, it is the evidence of P.W.2 that after bargain, the accused reduced his demand to Rs.1150/- and thereafter, he along with P.W.4 came out, whereas according to the evidence of P.W. 4, it was P.W.2 who offered to pay Rs.1150/- and the same was not accepted by the accused. The said vital contradiction also has not been adverted to by the learned trial Judge. It gives rise a reasonable suspicion as to whether such a demand could have been made by the accused, that too in the presence of a third person, namely P.W.4-Chinnakaruppan. It makes the presence of P.W.4 at the time of the alleged second demand made on 21.03.2002 is improbable and doubtful. 24. The third demand according to the prosecution case was made on 23.03.2002 at about 11.00 a.m., when P.W.2 met the accused in his office. It makes the presence of P.W.4 at the time of the alleged second demand made on 21.03.2002 is improbable and doubtful. 24. The third demand according to the prosecution case was made on 23.03.2002 at about 11.00 a.m., when P.W.2 met the accused in his office. It is the further evidence of P.W.2 that after making payments, he asked the accused to hand over the patta and the accused is said to have stated that without giving money demanded by him he could not get patta. There is nothing in Ex.P.5-complaint that on 23.03.2002, P.W.2 pleaded with the accused for further reducing the amount from Rs.1150/-. However, contrary to the contents of the complaint, P.W.2 ventured to state that he requested the accused on 23.03.2002 to reduce the amount, but the accused refused to do so. 25. P.W.2 made a determination not to pay any amount as illegal gratification and decided to lodge a complaint on 23.03.2002 itself, according to his own version. However, he did not lodge the complaint immediately. He waited till 26.03.2002 and lodged the complaint under Ex.P.5 at 4.45 p.m on 26.03.2002. It is the evidence of P.W.2 that the complaint was written by him at his residence on 25.03.2002 itself. But he signed it on 26.03.2002 and presented the same on the same day. If at all, the complaint was prepared in his own handwriting on 25.03.2002, there can be no reason to postpone the signing of the same till the next day, namely 26.03.2002. Of course, P.W.11-Kulothungapandian who received the complaint and registered the case has stated that P.W.2 come to the office of the Vigilance and Anticorruption Wing, Ramanathapuram on 26.03.2002 at 4.45 p.m and presented a complaint in writing. One of the official witnesses invited by P.W.11 to be witnesses during the trap operation, namely P.W.3-Dhanavel would state that in the presence of P.W.2, he and the other witness by name Raju were given the original complaint and the FIR for their perusal, pursuant to which they enquired P.W.2 as to whether the contents of the complaint were correct. One of the official witnesses invited by P.W.11 to be witnesses during the trap operation, namely P.W.3-Dhanavel would state that in the presence of P.W.2, he and the other witness by name Raju were given the original complaint and the FIR for their perusal, pursuant to which they enquired P.W.2 as to whether the contents of the complaint were correct. Though in the earlier part of his evidence, P.W.3 stated that each one of the witnesses, namely P.W.3 and Raju, was furnished with a copy of the FIR for their perusal, during the later part of his evidence in cross examination, he would state that he saw the original complaint and that the complaint did not bear the signature of anybody. It is also his evidence that he did not know whether any person had signed it as a witness. P.W.2, in his evidence stated that only one document was given for their perusal. It is also his evidence that he did not know whether Ex.P.5-complaint was given to the official witness by the police for their perusal. The relevant portion of his evidence in vernacular is reproduced hereunder:- 26. Though the said difference may seem to be insignificant, it will assume importance in the light of more vital contradiction between the evidence of P.Ws.2 and 11 as to whether P.W.2 was asked by P.W.11 not to go out of the office of Vigilance and Anticorruption Wing, Ramanathpauram, so as to prevent the leakage of news or P.W.2 got permission to stay there even though P.W.11 asked him to go home and return at 7.00 a.m. According to P.W.2's evidence, after registering the case based on the complaint of P.W.2, the Inspector of Police asked P.W.2 to go out and come at 7.00 a.m on the next day and that it was P.W.2 who requested the Inspector of Police to give permission to spend the night in the office of Vigilance and Anticorruption Wing. The relevant portion of his testimony in vernacular is reproduced hereunder:- 27. The evidence of P.W.11, in this regard is quite contrary to the above said evidence of P.W.2. The relevant portion of his testimony in vernacular is reproduced hereunder:- 27. The evidence of P.W.11, in this regard is quite contrary to the above said evidence of P.W.2. According to P.W.11's version, he did not ask P.W.2 to leave the office of the Vigilance and Anticorruption wing and come back on the next day morning and on the other hand, P.W.11 asked the defacto complainant-P.W.2 to remain in the office of the Vigilance and Anticorruption Wing with a view to prevent the leakage of news. The above said contradictions, as rightly pointed out by the learned counsel for the appellant will throw some serious doubt on the manner in which the complaint was received and the case was registered. 28. Of course, regarding the demonstration made in the presence of P.W.3 and one Raju in the office of the Vigilance and Anticorruption wing, Ramanathapuram on 27.03.2002 to show the importance of phenolphthalein test in trap cases and the entrustment of M.O.1 series (11-100 rupee notes and 1-50 rupee note) under Ex.P.7 mahazor, there is no much scope for the accused to argue. However, a close scrutiny of the evidence regarding the actual execution of the trap and recovery of M.O.1 series will show that there are a number of discrepancies, contradictions, imponderables and improbabilities. Witnesses examined in this regard are P.W.2-the defacto complainant, P.W.3-the shadow witness and P.W.11-the Trap Laying Officer. Out of the two witnesses who are said to have attested Ex.P.10, mahazor relating to the recovery of the tainted money from the accused only P.W.3-Dhanavel was examined and the other witness Raju was not examined on the side of the prosecution. 29. The case projected by P.W.2-Boominathan is that when he accompanied by P.W.3-Dhanavel, went to the o0ffice of the accused at 10.15 a.m on 27.03.2002 leaving the Inspector of Police and his party at a distance from the office, the accused was there in his office and asked P.W.2 as to why he had brought P.W.3-Dhanavel, for which he replied that he was the son-in-law of his sister and he had come there to procure chillies. It is his further evidence that the accused informed them that he had to go down to see a relative and took them to the ground floor for taking a tea and that thereafter he enquired P.W.2 as to whether he had brought the amount; that once again P.W.2 pleaded for reducing the amount and the same was declined by the accused and that thereafter, he gave the currency notes which had been entrusted in the office of the Vigilance and Anticorruption Wing after quoting the same with phenolphthalein powder. It is his further evidence that the accused counted the amount, whereupon P.W.2 asked whether the amount was correct and that the accused replied in the affirmative and put the currency notes in a brown colour rexine bag. It is his further evidence that when he asked about patta, he showed the original patta and copy of the patta and informed him that Gopuram seal was not found in the original and that he would get Gopuram seal affixed in it and then hand over the same to P.W.2. The further evidence of P.W.2 is to the effect that he was informed by the accused that he had to pay a sum of Rs.300 to 400/-for effecting corrections in the 10(1) register. If the evidence of shadow witness P.W.3-Dhanavel is compared with the said evidence of P.W.2, it will show the contradictions between the two. According to the evidence of P.W3, on being enquired by the accused, he was introduced by P.W.2 as the son-in-law of his sister and that immediately thereafter, the accused took them downstairs to take tea; that when they returned back to the office room of the accused, the accused asked P.W.2 whether he had brought the amount demanded by him and P.W.2 replied in the affirmative; that thereafter, P.W.2 took out the amount from his shirt pocket and handed over to the accused and that the accused got it counted the same and placed inside the rexine bag which was found on his table. It is not his evidence that P.W.2 pleaded for reducing the amount and the accused declined. It is also not the evidence of P.W.3 that the accused replied that the original patta did not bear the Gopuram seal and that he would get the Gopural seal affixed and then hand over the same to P.W.2. It is not his evidence that P.W.2 pleaded for reducing the amount and the accused declined. It is also not the evidence of P.W.3 that the accused replied that the original patta did not bear the Gopuram seal and that he would get the Gopural seal affixed and then hand over the same to P.W.2. It is also not the evidence of P.W.3 that the accused informed P.W.2 that he had to pay a sum of Rs.300 to 400/-for the changes to be made in the 10(1) register. The reason assigned by the accused for not handing over the patta, according to P.W.3, is that he had to make entries in 10(1) register and that patta could be handed over only after making entries in the 10(1) register. The relevant portion of his testimony in vernacular is reproduced hereunder:- The said contradictions are vital and material in a trap case in which the scope of the defence shall be narrow and limited. 30. There is yet another vital contradiction between the evidence of P.Ws.2 and 3. It is the evidence of P.W.2 that he did not note where the accused kept the amount received from him after counting it and that when he asked whether the amount was correct, the accused replied that he had counted and kept it in the brown colour rexine bag on his table and that the amount was available in that bag. This was not spoken to by P.W.3 and in fact, P.W.3 has denied the discussion as alleged by P.W.2. The relevant portion in the evidence of P.W.3 in vernacular, is extracted hereunder: 31. According to the evidence of P.Ws.2 and 3 within 5 minutes after the amount was handed over to the accused they came out of the office of the accused and P.W.2 gave signal to the police party. It is the evidence of P.W.11 that immediately, after he received signal, he and the police party rushed to the office room of the accused. But it is the evidence of P.W.3 that when he returned to the office room of the accused along with the Inspector of police and the other official witness Raju, the rexine bag was not found on the table and it was found on a bench like chair. But it is the evidence of P.W.3 that when he returned to the office room of the accused along with the Inspector of police and the other official witness Raju, the rexine bag was not found on the table and it was found on a bench like chair. Of course, it is the evidence of P.Ws.3 and 11 that when phenolphthalein test was conducted using sodium carbonate solution by making the accused to dip his left hand fingers and right hand fingers separately in the solutions kept in two tumblers and that the result was positive as solutions turned pink. The solutions used for phenolphthalein test were also sent to the forensic lab for chemical analysis and a report under Ex.A16 was received to the effect that they contained phenolphthalein. P.W.10, Vishalachi-Scientific Assistant spoke about the chemical analysis and the report. Though it was the case of the prosecution that the M.O.1 series currencies were kept in the rexine bag produced as M.O.4, the same was not subjected to phenolphthalein test using sodium carbonate solution. It was also not sent to the forensic lab for examination. Though a search was made in the office of the accused and at his residence no incriminating material could be recovered besides the tainted money recovered from the rexine bag-M.O.4. 32. From Exs.P-9 and P-10, it is seen that the order for change of patta in respect of survey No.386/9 had been passed by the Deputy Tahsildar, Thiruvadanai on 08.03.2002 itself. In this regard, the defence case of the accused is that when P.W.2 wanted patta for the property in S.No.386/9 to be changed to his name from the name of P.W.5-Murugandi, P.W.5 agreed for the same but demanded payment of a sum of Rs.5000/- as amount paid by him towards tax; that after mediation, it was agreed that P.W.2-Boominathan should pay a sum of Rs.1150/- towards the tax paid by P.W.5; that such a mediation was held in the presence of the document writer-Krishnamoorthy; that since Boominathan had not brought money on the assurance of document writer-Krishnamoorthy and the accused, Murugandi executed the consent statement and that thereafter, P.W. 2-Boominathan did not make payment of the amount. It is his further case that on 27.03.2002, P.W.2-Boominathan went to the office room of the accused informing Krishnamoorthy that he was going there to pay the amount agreed to be paid to P.W.5-Murugandi, that when Krishnamoorthy informed P.W.2 that the accused had gone out, P.W.2 replied that it was the accused who asked him to go and remain in his office and that thereafter, the Vigilance and Anti corruption police came there. In this regard, the consent statement executed by P.W.5-Murugandi has been annexed with Ex.P.2-application. The stamp paper used for the execution of the consent statement was purchased on 13.02.2002 at Devakottai. According to P.W.2, he had met the accused in the third week of February 2002 whereupon he was instructed by the accused to get the stamp papers. We have seen supra that there is no such averment in Ex.P.5 complaint. The evidence of P.W.1 in the cross examination is to the effect that he met 2 or 3 days prior to 20.02.2002 and at that point of time, the accused instructed him to get stamp papers and bring the concerned party. If at all, he had met the accused 2 or 3 days prior to 20.02.2002 and thereafter, he purchased the stamp paper, it is quite improbable that the stamp paper could have been purchased on 13.02.2002. 33. Further, there are clear admissions made by P.W.6, P.W.8 and P.W.9 that the accused had no power to grant patta or pass an order of changing of patta and that the orders for change of patta and the patta could not be routed through the Village Administrative Officer. It is also obvious from the evidence that P.W.2 who was working in the Fire Station at the Taluk Centre, submitted the application for survey of his land directly to the Tahsildar by post and only for the change of patta regarding survey No.386/9 patta for which had been wrongly issued in the name of P.W.5, he sent his application through the accused (Village Administrative Officer). The same came to be done in the circumstances stated by the accused, namely the request made by P.W.2 to P.W.5-Murugandi, the demand made by P.W.5-Murugandi for payment of tax liability borne by him, the mediation in the presence of documentary writer fixation of the amount at Rs.1150/-and execution of the consent statement by P.W. 5-Murugandi on the assurance of the documentary writer and the accused to see that P.W.2 paid the amount agreed to be paid to P.W.5 Murugandi towards the tax liability incurred by him. In this regard, it is pertinent to note that thereafter P.W.5-Murugandi had chosen to support the case of the prosecution for the reasons best known to him. 34. The property concerned was admittedly owned by one Meenal. The said Meenal and her husband were non residents and they lived in Rangoon (now Yangoon) and they died there at Yangoon. A perusal of evidence of P.W.5 will make it clear that he is not trustworthy witness and no importance can be attached to his evidence. How unreliable his evidence, will be seen from the following part of his evidence. According to him, he did not ask P.W.2 to pay him the amount paid by him as tax relating to the property in question. However, he would state that P.W.2 had paid him a sum of Rs.200/- towards the tax paid by him even prior to the execution of the consent statement. However, he was not able to state at what distance of time prior to the date of execution of the consent statement such payment was made. P.W.2 has not spoken about such payment. Though P.W.5 would deny the suggestion that a sum of Rs. 1150/-was agreed to be paid to him by P.W.2-Boominathan on the mediation of Kuttaudaiyar, he would state that he was not aware of the assurance given by the accused and Kuttaudayiar for the payment of the said amount. It is also his evidence that he did know the name of the scribe and he did not know the witnesses who attested the same. It is quite obvious that Udayar and Velu had signed the consent statement as witnesses. The said Udayar supported the case of the accused by deposing as D.W.1. The scribe was also examined as D.W. 2 and he corroborated the evidence of D.W.1. 35. It is quite obvious that Udayar and Velu had signed the consent statement as witnesses. The said Udayar supported the case of the accused by deposing as D.W.1. The scribe was also examined as D.W. 2 and he corroborated the evidence of D.W.1. 35. It is also pertinent to note that regarding the properties of Meenal, there was a dispute between P.W.2 and Poochiammal and others. It is also an admitted fact that a case was pending before the Revenue Divisional Officer regarding Survey No.545/12 between P.W. 2 and one Nagesh @ Udaiyar and that the application submitted by P.W.2 for grant of patta in respect of the said property in his favour was dismissed since he had not produced the original documents and that he did not file any appeal therefrom. It is also his admission that he had not produced legal heir certificate or succession certificate to show that he alone is the legal heir of Meenal in respect of Survey Nos.284/7B, 305/3, 305/4 regarding which he sought patta in his favour in the application submitted him. In this regard, learned counsel for the accused (appellant) contended that P.W.2, who wanted the accused to help him to get patta in respect of those disputed properties also, had got animosity towards the accused since he had not chosen to help him in getting patta for those properties and he simply forwarded the report recommending the grant of patta for Survey No.386/9. The said contention cannot be rejected as untenable or having no basis. The admission made by P.W.2 in this regard during cross examination will make it clear that the said facts had been elicited only to show that P.W.2 made attempts to get patta in his favour in respect of the property owned by Meenal without the production of the succession certificate or legal heir certificate and that only in respect of S.No.386/9 which he got by way of settlement, he was able to get patta. Therefore, we cannot rule out the probability of P.W.2 having been inimically disposed towards the accused, which led to the foisting of the case by planting the tainted money in the rexine bag, when the accused had been away from his office. Therefore, we cannot rule out the probability of P.W.2 having been inimically disposed towards the accused, which led to the foisting of the case by planting the tainted money in the rexine bag, when the accused had been away from his office. The contention of the accused that P.W.11-Inspector of Police also helped P.W.2 by asking the accused to take out the currency from the rexine bag and count them and then dip his figures in the sodium carbonate solution also cannot be rejected as improbable in the light of the contradictions and improbabilities found in the evidence adduced on the side of the prosecution. 36. As rightly contended by the learned counsel for the appellant, had the trial Court adverted to the above said aspects and the discrepancies found in the case of the prosecution and enumerated supra, it would have arrived at a conclusion that the prosecution failed to prove its case beyond reasonable doubt. The trial Court failed to consider the evidence of D.Ws.1 and 2 in proper perspective and proper consideration of the said evidence coupled with the admissions elicited from the prosecution witnesses and the discrepancies pointed out supra, will make it clear that the accused has proved his case that the case had been foisted by preponderance of probabilities, whereas the prosecution failed to prove the charges levelled against the accused beyond reasonable doubt. The prosecution is expected to prove its case beyond reasonable doubt and that the proof of the defence case on the part of the accused need not be beyond reasonable doubt and it can be on preponderance of probabilities. The learned trial Judge seems to have forgotten the said cardinal principle and the same has led to the decision of the trial Court that the charges for the offences punishable under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 were proved and that the accused was guilty of the said offences, resulting in his conviction and imposition of sentence on him as indicated supra. 37. 37. This Court, upon re-appreciation of evidence and for the reasons stated supra, comes to the conclusion that the said judgment of the trial Court convicting the appellant-accused for the offences punishable under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988, is definitely infirm, discrepant and erroneous and the same is liable to be interfered with. This Court further holds that the appeal shall succeed and the accused in entitled to be acquitted of both the offences for which he was prosecuted. 38. In the result, the Criminal Appeal is allowed. The judgment of the trial Court convicting the appellant/accused is reversed and the conviction recorded by the trial Court is set aside. The appellant/accused is acquitted of both the offences with which he stood charged. The fine amount, if any, paid by him shall be refunded. As it is reported that the appellant/accused is on bail, the bail bond shall stand cancelled.