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2015 DIGILAW 3373 (MAD)

Kamalam v. State by, The Inspector of Police

2015-10-13

S.VIMALA

body2015
JUDGMENT : The appellants/accused 1 and 2 were found guilty under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Both of them were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-each and in default to undergo rigorous imprisonment for a period of 3 months. The findings regarding guilt and the imposition of sentence are under challenge in this appeal. 2. The case of the prosecution is that the defacto complainant Velliammal preferred a complaint against the appellants stating that they demanded a sum of Rs.1,000/-as illegal gratification in order to release the amount granted by the Government under the Welfare Scheme, viz. “Moovalur Ramamirtham Ammaiyar Ninaivu Thirumana Nithiyuthavi Thittam” and that they accepted the alleged bribe on 23.11.1998. During the relevant point of time, the first appellant had been working as Development Officer and the second appellant had been working as Welfare Officer in Thathaiyangarpet Panchayat Office at Trichy District. 3. In order to avail the benefit of Thirumana Nidhiyuthavi Thittam, the beneficiary is expected to purchase Kisan Vikas Bond to the value of Rs.1,000/-. According to the case of the prosecution, the demand of Rs.1,000/-was towards illegal gratification. But the case of the defence is that the defacto complainant gave a sum of Rs.1000/-to the accused persons towards the purchase of Kisan Vikas bond for a sum of Rs.1000/-; as there was no demand, the question of illegal gratification does not arise for consideration and therefore, the accused persons must have been acquitted. 4. The main grounds of appeal are on three folds: (a)The Trial Court ought not to have convicted the appellants when the primary witness, viz. P.W.2 turned hostile; (b)The Trial Court ought not to have rejected the evidence of P.W.4 who is the relative of P.W.2, who has categorically stated that the complaint was drafted by the respondent Police and not by P.W.2; and (c)The Trial Court did not appreciate the evidence adduced by P.W.16 who was working as Assistant Postal Officer in a proper perspective. 5. The two crucial piece of evidence which would clinch either the case of the prosecution or the case of defence, is the evidence of P.W.2, the defacto complainant and Ex.P45, the document relating to purchase of Kisan Vikas Bond. 5. The two crucial piece of evidence which would clinch either the case of the prosecution or the case of defence, is the evidence of P.W.2, the defacto complainant and Ex.P45, the document relating to purchase of Kisan Vikas Bond. Whether the amount of Rs.1,000/-was paid towards purchase of Kisan Vikas Bond or it was paid as illegal gratification, is the primary issue arising for consideration. It is the contention of the prosecution that Kisan Vikas Bond had been bought long prior to the release of the fund and therefore there is no necessity to pay Rs.1,000/-towards the purchase of Kisan Vikas Bond to the accused persons. Therefore, the time at which Kisan Vikas Bond had been obtained would have a bearing on the prosecution case. The prosecution relies upon Ex.P45 document to show that Kisan Vikas Bond had been obtained prior to the release of the money under the scheme and therefore, the case of the defence must be false. The case of the prosecution is that the defacto complainant did not pay / could not have paid Rs.1000/-towards purchase of Kisan Vikas Bond as the Bond had been purchased long prior to the payment of Thirumana Nidhiyuthavi. Only towards supporting that, Ex.P45 is relied upon. But Ex.P45 is the Application Form for purchase of Kisan Vikas Patra. So far as Ex.P45 is concerned, the evidence of P.W.16, the Assistant Postmaster is that the Kisan Vikas Bond Nos.234 to 415 were maintained in Ex.P45 and the relevant page (marked as Ex.P45) alone had been found teared and pasted again. The first page regarding the nominee's name and address remained unfilled, but in rest of the application, between Page Nos.234 to 415, it has been found filled up. There is no reason as to why the application found in Ex.P45 alone had been torn and pasted again. The accused would explain this feature by saying that the prosecution has manipulated the document only in order to support the prosecution case that the Kisan Vikas Bond was obtained prior to the release of assistance. 6. The Officer who made entries with reference to Ex.P45 has also not been examined. P.W.16 is the officer who was in-charge of maintaining the document at the time of trial. 6. The Officer who made entries with reference to Ex.P45 has also not been examined. P.W.16 is the officer who was in-charge of maintaining the document at the time of trial. Therefore, he can depose only with regard to the existing condition in which the document is found and he cannot say anything regarding the circumstances under which the relevant page was found teared and pasted again. It is also admitted that when the amount due under the Kisan Vikas Bond was encashed and re-paid on 08.09.2001, there is no signature or initial of the person who paid the amount back. The prosecution wanted to explain this by saying that the Postmaster would have been hard-pressed for time. This explanation cannot be accepted, as in the transactions involving money, the officials would normally be careful and when there is no signature, the implication is that there is something fishy in the transaction alleged. The suggestion is that only at the request of the prosecuting officials, Ex.P45 has been fabricated. When such a suggestion has been put forth, it is for the prosecution to have cleared the doubt with regard to Ex.P45. It has not been done so. 7. Under such circumstances, whether the evidence of P.W.2 and P.W.4 can be relied upon is the only issue. 8. It is very difficult to believe the evidence of P.W.2 as she is stated to be an unlettered lady putting thumb impression. During chief examination, she would state that there was a demand for the purpose of granting the money payable under the Marriage Scheme. During cross examination, she has stated that she paid the amount only for the purpose of purchase of Kisan Vikas Bond. Again she has turned back during further cross examination. The cumulative consideration of the evidence of P.W.2 coupled with non-examination of the features found in Ex.P45, did not inspire the Court to accept the evidence of P.W.2. 9. The learned Government Advocate (Crl.Side) would submit that the evidence of P.W.2 has once again been set right by her version during the further cross examination. Normally, a rustic village woman may not be inclined to tell falsehood. The evidence only indicates that there is a possibility of the witness having given evidence on account of fear. 9. The learned Government Advocate (Crl.Side) would submit that the evidence of P.W.2 has once again been set right by her version during the further cross examination. Normally, a rustic village woman may not be inclined to tell falsehood. The evidence only indicates that there is a possibility of the witness having given evidence on account of fear. If there is no doubt under issuance of Ex.P45, the Court, perhaps, would have relied upon the evidence of P.W.2, even if she has been treated as hostile witness, as her evidence would have remained supported by Ex.P45. But, in this case, as Ex.P45 is doubtful, it is not safe to rely upon the evidence of P.W.2. 10. It is relevant to point out that the son-in-law, who has been examined as P.W.4 has also turned hostile. In the absence of any proof regarding demand, any amount of evidence with regard to possession or recovery, will not be of any help to the prosecution. 11. Under the stated circumstances, the decision relied upon by the learned counsel for the defence reported in 2015(2) Crimes 101 (SC), in M.R.Purushotham v. State of Karnataka, is worth to be considered: “6. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context, the recent decision of a three Judge bench of this Court in B.Jayaraj vs. State of Andhra Pradesh (2014(4) Scale 8) is relevant and it is held as follows: “8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.”” 12. From the decision it is clear that in the absence of any proof for demand with regard to illegal gratification, the case of the prosecution cannot be accepted. 13. Therefore, the conviction and sentence passed by the Court below, in the absence of convincing evidence for demand, is unsustainable and it is liable to be set aside. 14. In the result, the appeal is allowed and the conviction and sentence passed by the learned Chief Judicial Magistrate, Trichy by order dated 18.06.2010 in Special Case No.5 of 2002, are set aside, and the appellants are acquitted of the charge levelled against them. Bail bonds, if any furnished by the appellants, shall stand discharged.