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2018 DIGILAW 3548 (MAD)

Sivaraman v. State

2018-10-05

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. These three appeals are directed against the judgment passed by the learned Special Judge-cum-Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur in Spl.C.C.No.1 of 2006 dated 25.03.2008. The appellants herein are Thiru. Sivaraman(A1)-Village Administrative Officer, Thiru. Velusamy(A2)-Village Assistant and Thiru. Guruviah(A3), Village Assistant working within the jurisdiction of Poovani Village, Srivilliputhur District. 2. The brief facts of the case leading to the appeal are as under: Thiru. S. Marimuthu, S/o. Sathan of Kadambankulam Village along with his brothers purchased three acres of land in Survey No.361/2 on 07.10.1980. The electrical pump-set and the service connection was in the name of Valavanda Thevar. After introduction of free electricity for the farmers, Marimuthu decided to get the name transferred. Therefore, when he approached the Electricity Board, he was informed by the officers that he should give a request for name transfer along with the bond in the prescribed format. They also informed him that his application should be annexed with certificate from the Village Administrative Officer. Therefore, Marimuthu, after getting a bond typed in the stamp paper, approached the first accused, Sivaraman, who was the then Village Administrative Officer of his village and submitted the form on 16.12.2003 and sought for endorsement in the bond. 2.1. For signing the documents, Sivaraman(A1) demanded Rs. 600/- as illegal gratification. When Marimuthu expressed his inability to pay the money, Sivaraman(A1) has given him one day time and told him to bring the money on 17.12.2003 at 10.00 a.m. Ramachandran, the cousin of Marimuthu was also present at that time. They both decided to lodge complaint before the Vigilance and Anti-Corruption Department informing about the demand of illegal gratification made by Sivaraman(A1). Accordingly, on 17.12.2003, a written complaint was given to the Additional Superintendent of Police, Vigilance and Anti-Corruption, Virudhunagar. 2.3. On perusal of the complaint, the Additional Superintendent of Police has thought that the case has to be registered and investigated. Hence, he designated one Manmathapandian, the Inspector of Police, Vigilance and Anti-Corruption Wing, Virudhunagar to register the complaint. Accordingly, the complaint was registered and trap was organized. The bribe money of Rs. 600/- was smeared with phenolphthalein and entrusted to the defacto complainant, Marimuthu with instruction to meet the Village Administrative Officer and if he demands money, it has to be given to him. Thiru.Mariappan was asked to accompany the defacto complainant and watch the transaction. Accordingly, the complaint was registered and trap was organized. The bribe money of Rs. 600/- was smeared with phenolphthalein and entrusted to the defacto complainant, Marimuthu with instruction to meet the Village Administrative Officer and if he demands money, it has to be given to him. Thiru.Mariappan was asked to accompany the defacto complainant and watch the transaction. On 17.12.2003 at about 04.00 p.m., the defacto complainant- Marimuthu and shadow witness-Mariappan met Sivaraman(A1) and the documents related to name transfer were handed over to A1. At that time, the first accused enquired whether the defacto complainant has brought money. When it was answered in affirmative, the first accused directed Velusamy(A2), Village Assistant, to receive the money. Accordingly, Velusamy(A2) received the tainted money from the defacto complainant, counted and handed over the same to Guruviah(A3), who in turn counted the money and kept in his shirt pocket. After receipt of the money, Guruviah(A3), Village Assistant, filled up the connected certificates and gave the same to Sivaraman(A1)-Village Administrative Officer, who signed the certificates and handed over the documents to the defacto complainant. Receiving the same, the defacto complainant and the shadow witness came out of the VAO office, gave the pre- arranged signal to the trap team waiting outside the VAO office. 2.4. Manmathapandian, the Inspector of Police lead the trap team and entered into the VAO office. On identification of A1 to A3 by the defacto complainant and the shadow witness, they were interrogated A3 whether he received any money from the defacto complainant(PW2). Initially, A3 denied, but later after his hands proved positive to the phenolphthalein test, when he was asked to dip his hands in the sodium carbonate solution, he admitted that he received the money from PW2 on the instruction of Sivaraman-A1. Later the hands of A2, who received the money from PW2 was also tested with sodium carbonate solution, which proved positive. The shirt of A3 was also recovered. The pocket portion of his shirt was tested with sodium carbonate solution. The sample solutions were collected separately for chemical analysis. The tainted money of Rs. 600/-(100x6) and the shirt of A3 were recovered under a recovery mahazar. The sample solutions collected and sealed were sent for chemical analysis with a request from the Court. The pocket portion of his shirt was tested with sodium carbonate solution. The sample solutions were collected separately for chemical analysis. The tainted money of Rs. 600/-(100x6) and the shirt of A3 were recovered under a recovery mahazar. The sample solutions collected and sealed were sent for chemical analysis with a request from the Court. The Forensic Laboratory on analyzing the solution, gave a positive report that the solutions contained sodium carbonate and phenolphthalein indicating that the currency smeared with phenolphthalein were handled by A2 and A3. After obtaining sanction for prosecuting the accused persons from the Revenue Divisional Officer (PW1), the respondent has laid down the final report. 2.5. On perusing the final report and the documents relied by the prosecution, the trial Court has framed charges for the offences punishable under Sections 7 and 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988, as against A1. As far as A2 and A3 are concerned, since they have received the tainted money on the instruction of A1, they were charged for the offences punishable under Sections 7 of the Prevention of Corruption Act, 1988 r/w. Section 109 IPC; Sections 12 and 13(1)(d) r/w.13(2) of the Prevention of Corruption Act, 1988. 2.6. The prosecution has examined 12 witnesses. 38 exhibits and 7 material objects were marked. On behalf of the defence, two exhibits were marked. The trial Court found A1 guilty under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. As far as A2 and A3 are concerned, the trial Court acquitted them for the offences under Sections 7 of the Prevention of Corruption Act, 1988 r/w. Section 109 IPC, whereas found guilty for the offences under Sections 12 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. 2.7. A1 was sentenced to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo two months simple imprisonment, for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 and the same sentence was passed for the offences punishable under Sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. The period of sentence was ordered to run concurrently. A2 and A3 were sentenced to undergo one year Rigorous Imprisonment and to pay a fine of Rs. The period of sentence was ordered to run concurrently. A2 and A3 were sentenced to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo two months Simple Imprisonment for the offences punishable under Sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and six months Rigorous Imprisonment and to pay a fine of Rs. 1,000/-, in default, two months Simple Imprisonment for the offences punishable under Section 12 of the Prevention of Corruption Act, 1988. The period of sentence was ordered to run concurrently. Aggrieved by the conviction and sentence, the three accused have preferred three individual appeals. 3. Since the appeals are arising out of the same judgment of the trial Court, common judgment is rendered after hearing the learned counsel for the appellants and the respondent/State. 3.1. In Crl.A.(MD).No.175 of 2008, the appellant is Sivaraman(A1), Village Administrative Officer. 3.2. In Crl.A.(MD).No.189 of 2008, the appellant is Velusamy(A2), Village Assistant. 3.3. In Crl.A.(MD).No.188 of 2008, the appellant is Guruviah(A3), Village Assistant. 4. Crl.A.(Md).No.175 of 2008: The learned Senior Counsel appearing for the appellant Sivaraman(A1) would submit that the case of the prosecution is highly doubtful and it has miserably failed to prove the demand, acceptance and subsequent recovery by cogent and admissible evidence. The unreasonable delay in according sanction has not been properly explained by the prosecution and the pre-sanction order is without proper application of mind and authority. The learned Senior Counsel for the appellant(A1) would submit that the trial Court has failed to appreciate that for getting a refund of Rs. 625/-, Will anybody demand Rs. 600/- as bribe?. The prosecution has disowned witness PW2, who is the defacto complainant and treated him as hostile. Nowhere in the deposition of PW2, he has stated that on 16.12.2003, he was accompanied by PW3. While so, the deposition of PW3, witnessing the alleged demand of bribe by A1 is highly improbable. None of the prosecution witness has deposed that the money given by PW3 was demanded as illegal gratification or received by the accused knowing that it was offered as illegal gratification. The contradiction in the complaint Ex.P2 and the FIR (Ex.P34) registered consequence to the complaint itself contradictory to each other, ought to have create a suspicion regarding the prosecution case. The contradiction in the complaint Ex.P2 and the FIR (Ex.P34) registered consequence to the complaint itself contradictory to each other, ought to have create a suspicion regarding the prosecution case. In the mind of the trial Court, the entire sequence of demand and acceptance of money as spoken by the prosecution witnesses does not corroborates each other. The stamp papers, which are signed and marked as Exs.P3 and P4 are unfilled and have no relevance to the case. The source of Exs.P3 and P4, from where it was recovered are not properly explained by the prosecution witness. Therefore, the judgment of the trial Court bristles with infirmity and needs interference. It is further submitted by the learned Senior Counsel for the appellant that when there is no proof for payment of illegal gratification and the alleged recovery of tainted money from this appellant, the trial Court ought not to have convicted him. 5. Crl.A.(Md).No.189/2008: The learned counsel appearing for the appellant Velusamy(A2) would contend that he, as a Village Assistant is subordinate to A1 and even if the case of the prosecution that he handled the tainted money on the direction of A1 and gave it to A3, it does not give a presumption that he received the money knowing that it is an illegal gratification and he had received to aid or assist A1. Hence, the ingredient of abetment as stated in Section 12 of the Prevention of Corruption Act, 1988, does not attract. Further, the learned counsel would submit that even according to the prosecution, this appellant neither demanded the money nor obtained the money pursuant to the demand. The money was also not recovered from him. It is not the case of the prosecution that he abetted A1 to demand illegal gratification. When there is no evidence to prove the money alleged to have handled by this appellant was pursuant to his knowledge that A1 demanded the money and PW2 has given the money as a motive to issue documents Exs.P.11 to P.15. The tainted money offered by the defacto complainant was received by the accused(A2) under the impression that the money is given towards land tax. The tainted money offered by the defacto complainant was received by the accused(A2) under the impression that the money is given towards land tax. The prosecution witnesses PW.6 and PW.7, Tahsildar and the VAO, who succeeded A1 had explained, how land tax used to be collected from the farmers and the convention of issuing receipt in advance and collecting the cash subsequently so as to achieve the target of revenue collection. In this case also it is contended that the receipt towards land tax was issued to the defacto complainant under Ex.P.10 for Rs. 744/- as early as on 01.12.2003 and the money received on 17.12.2003 was towards the said tax. Hence, he prays for acquittal of A2. 6. Crl.A(Md).No.188 of 2008: The learned counsel appearing for the appellant Guruviah(A3) would submit that the complaint Ex.P2 does not mentioning the name of this appellant. It is not the case of the prosecution that this appellant demanded any illegal gratification from PW2. The money, which was recovered from this appellant was given by A2 and this appellant had no knowledge about the alleged demand of illegal gratification by A1. When this appellant has neither demanded nor accepted any illegal gratification from the defacto complainant. Merely because he was in possession of the tainted money, he cannot be held guilty for the offence under Section 11 or 13(1)(d)of Prevention of Corruption Act, 1988. The learned counsel would submit that proof of demand and acceptance is sine qua non for holding a person guilty under Sections 7 and 11 of Prevention of Corruption Act, 1988. When the prosecution has neither proved the alleged demand nor acceptance, this appellant(A3) cannot be held guilty under Sections 12 or 13(1)(d) of Prevention of Corruption Act, 1988. 7. The response of the learned Additional Public Prosecutor appearing on behalf of the respondent/State is as follows: The learned Additional Public Prosecutor would submit that the prosecution has proved the case to the core through oral and documentary evidence. The defacto complainant(PW2)-Marimuthu through his complaint Ex.P.2 has set the criminal law in motion, which disclosed the fact that Sivaraman(A1)-VAO demands Rs. 600/- to give the necessary certificate for name transfer of EB connection. Pursuant to that, trap was arranged by PW10. The complaint-Ex.P2 was scribed by PW3, Ramachandran and he has deposed upon the reason for giving complaint against A1(VAO). 600/- to give the necessary certificate for name transfer of EB connection. Pursuant to that, trap was arranged by PW10. The complaint-Ex.P2 was scribed by PW3, Ramachandran and he has deposed upon the reason for giving complaint against A1(VAO). Since PW1-RDO of Revenue Department is the competent authority to accord sanction for prosecuting VAO, the sanction order was issued by him for A1, A2 and A3. The delay for granting sanction was purely due to administrative reasons and that cannot be a ground to suspect the case of the prosecution. 7.1. As far as the contention raised by the appellants regarding the demand, acceptance and recovery, the learned Additional Public Prosecutor would submit that the recovery of tainted money Rs. 600/- from A3 was not denied. The explanation given for the same that it was collected towards land tax has been proved to be a false explanation through the evidence of PW6 and PW7 and also Ex.P.21 wherein, it is specifically stated that no land revenue is due from the Pattathar and no excess amount has been collected from the Pattathar. In the said circumstances, the evidence of PW2 and PW4 has clearly proved that on 17.12.2003, A1 demanded the money for issuing certificates which are marked as Exs.P11 to P15. After the money was given to A2- Velusamy as per the direction of A1, who in turn handed over the money to A3, A3 has prepared the certificate, got the signature of A1 and handed over to PW2-defacto complainant. Since PW2 had not mentioned about A2 in his chief-examination, he was treated hostile, but on all other aspects, he has corroborated his complaint and the case of the prosecution. PW4 was present at the time of receiving the bribe money had also corroborated the case of the prosecution. Therefore, since the prosecution has proved the demand, acceptance and recovery, in which all the three accused are involved, the trial Court has rightly convicted A1 for demand of bribe money and acceptance of the same through A2 and A3. Thus, A2 and A3 has abetted A1 for committing the offence under Section 7 of the Prevention of Corruption Act, 1988. Thus, A2 and A3 has abetted A1 for committing the offence under Section 7 of the Prevention of Corruption Act, 1988. Since all the three accused are public servants and they have obtained pecuniary advantage for themselves or for others by abusing their official position and they corroborated means they have been rightly convicted for the offences under Sections 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988. Hence, there is no ground to interfere the well considered judgment of the trial Court. 8. Point for consideration: Whether the trial Court has weigh the evidence appropriately while concluding the guilt of the accused? 9. In support of the defence, the appellants rely upon Ex.P.10 wherein, the receipt of Rs. 744/- has been issued in the name of PW2. It is the case of the appellants that the receipt was issued in advance without receiving the money and the money of Rs. 600/- received from PW2 on 17.12.2003 was towards kist. To support this submission, the learned counsel would point out the deposition of PW.7, who had stated in his cross-examination that while collecting tax on faith in some cases, they will issue receipts and collect the money later. If the assesse fails to pay money, then later they will cancel the receipt. This explanation of the appellant through the deposition of PW7 goes contrary to the established Rules and procedures. Ex.P.21-letter issued by PW6-Tahsildar of Srivilliputhur clearly indicates that only on payment, receipt will be issued. PW6 has further explained the procedure to be followed by the Revenue Authorities regarding collection of tax. Hence, the explanation offered by the appellants for receiving the money is totally contra to the procedures as spoken by PW6. 10. The learned counsel for the appellant also raised doubt regarding the quantum of bribe money demanded for getting reimbursement of Rs. 625/- which was paid by the defacto complainant as electricity charge in the name of the deceased Valavanthan Thevar. This submission is totally unacceptable for the simple reason that the case of the prosecution is that the defacto complainant sought for name transfer of service connection for the pump-set, which he has purchased as early as 1980. Incidentally, the Government has come out with free power supply scheme. Hence, he is supposed to get the reimbursement of Rs. 625/- already paid towards electricity charge. The receipt of payment of Rs. Incidentally, the Government has come out with free power supply scheme. Hence, he is supposed to get the reimbursement of Rs. 625/- already paid towards electricity charge. The receipt of payment of Rs. 625/- towards electricity charge for six months is marked as Ex.P9. This is not the only benefit, which the defacto complainant would be enjoying if the name is transferred, the benefit of free supply of electricity was recurring one. Knowing well about the benefit, the appellants herein have by corrupt means to make pecuniary advantage had demanded illegal gratification of Rs. 600/-. Without chitta and certificate of VAO, electricity board will not transfer the name. Exs.P.3 and P4, which are name transfer application form, the indemnity bond and letter concerned are to be accompanied with FMB sketch, consent from the previous owner, land tax receipts and also certificate from the VAO. A perusal of Exs.P11 to 15 where the first accused VAO has affixed his sign, seal and date would go to show that after receiving the money of Rs. 600/- from PW2, he has affixed his signature and handed over the document to him. The same has been recovered by the trap laying officer, Manmathapandian-PW10 under the mahazar marked as Ex.P.8. 11. Pw2 and PW4 have spoken about the demand of gratification by A1. The recovery of the tainted money from A3 is proved through the evidence of PW4 and PW10. The explanation given by the accused persons does not probablise their defence. The specific evidence let in by the prosecution through PW2 is that A3 after receiving the money had prepared the certificates and handed over it to A1 for signature. The signed certificates were immediately recovered from PW2 under mahazar Ex.P.8, which is a contemporary document prepared immediately after the trap. 12. The learned counsel appearing for the appellants would heavily rely upon the judgment of the Honourable Supreme Court in the case of M.R. Purusothaman vs. State of Karnataka, (2015) 2 SCC(Criminal) 249 wherein the Honourable Supreme Court has observed that mere possession and recovery of currency notes from the accused without the proof of demand do not constitute offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 13. In the case on hand, the prosecution has not merely proved the possession and recovery of currency notes from A3. 13. In the case on hand, the prosecution has not merely proved the possession and recovery of currency notes from A3. The evidence has cogently proved that the money recovered was pursuant to the acceptance of the same by A3 on the direction of A1, who had demanded the money from PW2 in the presence of PW4. 14. It is also submitted by the learned counsel for the appellants that since the prosecution has disowned the evidence of the defacto complainant and treated him as hostile. He is not a reliable witness. This submission is also not sustainable. Since the deposition of PW2 clearly indicates the demand of gratification by A1, receipt of the same by A3. He has omitted to mention about the fact that the money was received by A2 on instruction of A1 and thereafter A2 handed over the money to A3. For the said omission, PW2 has been treated as hostile witness. This no way impeach the credibility of the said witness, since he has categorically stated for the purpose of name transfer he has met the officials of Electricity Board and on their instruction, he prepared the indemnity bond and other documents and submitted the same to the first accused for issuing necessary certificates. The demand and illegal gratification to issue certificate is also deposed by PW2. Since A1 to A3 were acting in collusion on behalf of the others, A2 has received the money and handed over to A3. All these event has happened on the instruction of A1 and it was A1, who was demanded illegal gratification from PW2. 15. It is needless to isolate each of the accused based on their individual action, when the common intention of all the three accused was to obtain pecuniary advantage by corrupt means abusing their official position. As a reward to issue the certificates, they have jointly obtained the money. The prosecution has proved that the demand was made by A1, money was received by A2 and kept by A3. Since the chain of event and the involvement of the three accused in the crime of receiving illegal gratification other than legal remuneration is clearly proved through the witness, there is no reason to interfere the considered judgment of the trial Court. 16. Since the chain of event and the involvement of the three accused in the crime of receiving illegal gratification other than legal remuneration is clearly proved through the witness, there is no reason to interfere the considered judgment of the trial Court. 16. Catena of judgments has been referred by the learned counsel for the appellants, mainly to canvas the innocence of the appellants on the ground of hostility of PW2 and omission to mention A2 and A3 in the complaint. As far as the facts of the case is concerned, though the complaint was only against A1, the other two accused person have aided A1 in the course of receiving the money and keeping in possession. This event could not have been anticipated either by the defacto complainant or by the trap team. If the contention of the appellants that they have wrongly fixed based on the false complaint, nothing would have prevented either for PW2 or PW10 to include the name of A2 and A3 in the complaint itself. In the natural course of event, the appellants, who are prone to take bribe had in enforcement of their common intention had received money and issued the certificates viz., Exs.P11 to P15 after getting the bribe money. Therefore, this Court finds no reason to interfere the judgment of the trial Court. Hence, this Court is inclined to dismissed all the three appeals. 17. Pending appeal, A-3 has taken out an application to receive additional documents. These documents are the chalan remittance of sub treasury and the request of Vigilance and Anti-Corruption for sanction addressed to Tahsildar bonafide certificates issued to A1. None of these documents are relevant to prove or disprove the issue of demand, acceptance and recovery of tainted money. As pointed out earlier, the sanction to prosecute has been issued by RDO, who is the competent authority to remove officers of the rank of VAO. A2 and A3 are officers below the rank of VAO. Therefore, the sanction order issued by PW1 to prosecute A1 to A3 is perfectly legal. He has accorded sanction after application of his mind and on perusal of records. Hence, the earlier attempt by the Vigilance and Anti- Corruption to get sanction from Tahsildar to prosecute Village Assistants has no barring to decide the guilt or otherwise. Hence, Crl.M.P. (MD).No.7300 of 2018 is dismissed on devoid of merits. 18. He has accorded sanction after application of his mind and on perusal of records. Hence, the earlier attempt by the Vigilance and Anti- Corruption to get sanction from Tahsildar to prosecute Village Assistants has no barring to decide the guilt or otherwise. Hence, Crl.M.P. (MD).No.7300 of 2018 is dismissed on devoid of merits. 18. In the result, these criminal appeals are dismissed. The conviction and sentence dated 25.03.2008 passed in Spl.C.C.No.1 of 2006 by the learned Chief Judicial Magistrate/Special Judge, Virudhunagr at Srivilliputhur District confirmed. The trial Court is directed to secure the appellants/A1 to A3 and commit them to prison to undergo the remaining period of sanction. The bail bond if any executed by the appellants/A1 to A3 shall stand cancelled.