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2018 DIGILAW 3552 (MAD)

K. G. Prem Kumar v. State

2018-10-05

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. The appeal against conviction and sentence is preferred by the sole accused in C.C.No.1507 of 1999 on the file of Special Judge cum Chief Judicial Magistrate at Srivilliputhur vide judgment dated 15.10.2008. 2. The appellant herein was found guilty by the trial court for the offences punishable under sections 7, 13(1) (d) r/w 13(2) and 12 (1)(a) r/w 13(2) of the Prevention of Corruption Act, 1988. The allegation which was found to be proved by the trial court is that, the appellant as godown Assistant in TASMAC godown, Virudhunagar had the habit of receiving illegal gratification by corrupt or illegal means abusing his official position for unloading IMFL bottles and to issue receipts for the same. In particular on 22.01.1998, he demanded and accepted Rs. 150/- from one K. Selvakumar, the owner of the lorry bearing registration number TAN3771 to issue receipt for unloading IMFL bottles. The trap laid based on the complaint given by Selvakumar led to recovery of tainted money Rs. 150/- and also Rs. 630/- not duly accounted, but found to be the bribe money collected from the representatives of the other lorry owners, who came to take delivery of IMFL bottles for their outlet. 3. To prove the charges, the prosecution has examined 17 witnesses. Through these witnesses 21 exhibits and 7 material objects were marked. 4. Thiru. Selvakumar, the defacto complainant (PW-2), who informed police about the demand of illegal gratification by the accused on 22.01.1998 at 11.00 am and his friend Pitchaikani (PW-3), who accompanied PW-2 to the TASMAC godown and co-signatory to the complaint Ex.P-20 had turned hostile. 5. Pw-11 to PW-16 are the witnesses, who came to TASMAC godown to take delivery of IMFL bottles for their respective outlets. They have been examined by the prosecution to prove that Rs. 630/- recovered from the accused was given by these witnesses as bribe money to the accused. Except PW.15- Kalidass, others did not support the case of prosecution. So, the prosecution has treated them as hostile witnesses. As far as PW-15, in the chief examination he admits that he left Rs. 70/- with the accused. However, in the cross examination, he has deposed that the balance Rs. 70/- left in the TASMAC account will be adjusted later in the subsequent off-take of goods. He did not pay any bribe to the accused. 6. As far as PW-15, in the chief examination he admits that he left Rs. 70/- with the accused. However, in the cross examination, he has deposed that the balance Rs. 70/- left in the TASMAC account will be adjusted later in the subsequent off-take of goods. He did not pay any bribe to the accused. 6. Despite the hostility of the defacto complainant, the trial Court has held that the demand of illegal gratification and acceptance of the same by the accused had been proved by the prosecution. Relying the evidence of the shadow witness PW-4, who had deposed about the demand and acceptance of illegal gratification by the accused on 22.01.1998 at 05.15 pm., the trial Court has held that the tainted money recovered from the accused was the money, which he demanded and obtained from PW-2 as gratification other than legal remuneration. The trial court has observed that PW.4-a respectable Government official, who have no animosity or ill will against the accused need no necessity to say falsehood. Further, the trial Court has held that PW-4 evidence regarding recovery of the tainted money of Rs. 150/- and the unaccounted money of Rs. 630/- being corroborated by the trap laying officer- PW.10, though the bribe givers have not supported the case of the prosecution. The recovery of tainted money and the failure to give plausible explanation for the money in possession are the reasons given by the trial Court for convicting the accused. 7. Aggrieved by the finding, the appeal is preferred on the ground that, the prosecution has not proved the case beyond reasonable doubt. The evidence of PW-2, who has retracted his complaint has not been taken into consideration properly. The money was recovered from the pocket of the shirt hanging in the godown. The contradiction in the prosecution version about the site of recovery has not been considered by the trial Court. 8. The learned counsel for the appellant further submitted that, Ex.P-5 (goods receipt acknowledgment) is the crucial document relied by the prosecution. It indicates the vehicle bearing registration No.TAN3771 arrived to the godown on 14.01.1998 at 12.00 noon and departed at 1.30 p.m., on 22.01.1998 after unloading the goods. 8. The learned counsel for the appellant further submitted that, Ex.P-5 (goods receipt acknowledgment) is the crucial document relied by the prosecution. It indicates the vehicle bearing registration No.TAN3771 arrived to the godown on 14.01.1998 at 12.00 noon and departed at 1.30 p.m., on 22.01.1998 after unloading the goods. PW-2 had deposed that he lodged the complaint Ex.P-20 only after the time mentioned in Ex.P-5, therefore, the prosecution case that the complaint was received at 12.00 noon on 22.01.1998 from PW-2 and thereafter trap was organized gets belied. 9. Further, the learned counsel contents that, Ex.P-5 was not placed before PW-1 while seeking sanction to prosecute. Without considering the crucial document Ex.P-5, the sanction to prosecute has been accorded. Since the sanction order has been passed without application of mind, it is illegal and the conviction is liable to be set aside on this score. 10. Relying upon the admission of PW.10-the trap laying officer that, after unloading the goods, the lorry owners or his representatives need not wait for the delivery receipts since the receipts will be sent to the supplier directly and the freight charges has to be collected by the transporter from the supplier. Therefore after delivery of the goods at 1.30 p.m., for issuance of receipt, there is no need to bribe and get it. 11. Relying upon the judgment of the High Court, Madras rendered in State -vs- M.L.Rajan, (2013) 3 LW(Cri) 157, the learned counsel contented that the direction of the Vigilance manual Rule 47, which contemplates opportunity to the trap accused, immediately after the trap to explain the possession of the tainted money not given to the accused. Therefore, the trial Court judgment requires reconsideration. 12. Relying upon the judgment of the Hon'ble Supreme Court rendered in B.Jayaraj -vs- State of Andhra Pradesh, (2014) 13 SCC 55 , the learned counsel contented that, when the defacto complainant has disowned his statement, in the absence of proof of demand for illegal gratification, mere recovery of tainted currency notes is insufficient to establish the commission of crime by the accused. 13. Claiming that the money was not in the physical or conscious possession of the accused and it was not recovered from the accused as alleged by the prosecution, the learned counsel submitted that in such circumstances, the presumption under Section 20 of the Prevention of Corruption Act, 1988, does not apply. 14. 13. Claiming that the money was not in the physical or conscious possession of the accused and it was not recovered from the accused as alleged by the prosecution, the learned counsel submitted that in such circumstances, the presumption under Section 20 of the Prevention of Corruption Act, 1988, does not apply. 14. In response to the submissions made by the learned counsel for the appellant, the learned Additional Public Prosecutor submitted that, no doubt the defacto complainant failed to own the information as found in Ex.P-20. The decision of the learned Additional Public Prosecutor, who has treated this witness as hostile, does not render his evidence effaced in toto. The portion of his evidence, which are reliable and lead proof to the prosecution version have to be considered. The trial Court has exercised its judicial mind properly in sifting the evidence before it and had found the accused guilty. 15. The learned Additional Public Prosecutor submitted that, the evidence of PW-4, who had witnessed the demand and acceptance of bribe money by the accused, the recovery of the money from the accused in the presence of witnesses including PW.8-the Manager of the TASMAC godown and the failure to account the money recovered from the accused necessarily attracts Section 20 of the Prevention of Corruption Act, 1988, to draw presumption against the accused. The reverse burden has not been discharged by the accused, hence the trial Court judgment has to be confirmed. 16. Heard the learned counsels for the appellant and the respondent. Perused the records. 17. Point for consideration: Whether the evidence for prosecution adequately proved the factum of demand, acceptance and recovery of money to uphold the conviction? 18. The criminal law has been set in motion on the complaint given by PW-2 and counter-signed by PW-3. The substance of the complaint is that, the accused being the godown Assistant of TASMAC demands bribe of Rs. 150/- to unload and issue delivery receipt, which is necessary for the transporter to claim the freight charges. The evidence of PW-2 before the Court though varies from his written complaint, substantially concur with the prosecution regarding the above facts. 19. His evidence also substantially concurred with the prosecution case regarding the loading of IMFL bottles at Chennai in his lorry bearing registration number TAN3771 on 13.01.1998, which has reached the Virudhunagar TASMAC godown on 14.01.1998. The evidence of PW-2 before the Court though varies from his written complaint, substantially concur with the prosecution regarding the above facts. 19. His evidence also substantially concurred with the prosecution case regarding the loading of IMFL bottles at Chennai in his lorry bearing registration number TAN3771 on 13.01.1998, which has reached the Virudhunagar TASMAC godown on 14.01.1998. The goods were not unloaded till 21.01.1998. The driver of the lorry-Rajendran has informed the same to the defacto complainant-PW2. 20. On 21.01.1998, PW-2 and his friend Pitchaikani-PW.4 has gone to TASMAC office and met the accused Premkumar. He has assured them to unload the goods on the next day. PW-2 and PW-3 met the accused on the next day, i.e., on 22.01.1998 at about 11.00 a.m. The accused unloaded the goods, but to issue acknowledgment for the same, he has told that it will take sometime. 21. Here PW-2 has varied from his complaint-Ex.P.20, wherein he has informed that for issuing acknowledgment for the delivery, the accused demands Rs. 150/-. At the same time, this witness in his testimony admits that he went to the Vigilance office along with the Pitchaikani-PW.4 and gave complaint-Ex.P.20. He has also deposed that since the vehicle owners in the godown waiting for loading, told him that only if he bribe the godown Assistant, he will get his work done. So he lodged the complaint. 22. Thus, though this witness PW-2 and his friend-PW.4 were treated as hostile witness by the prosecution, the fundamental fact that the vehicle of PW-2 carrying goods was not unloaded till 22.01.1998, though it was waiting for getting unloaded since 14.01.1998. This fact is deposed by both these witnesses. Their visit to TASMAC godown and meeting of the accused on 21.01.1998 and 22.01.1998 at 11.00 a.m., also deposed by these two witnesses. When goods not being unloaded for nearly eight days and the information gathered from the lorry drivers that unless bribe given, work will not be done by the accused give a reasonable suspicion about the possibility of winning over these witnesses by the accused at the later point of time. This set reinforced if one could see the facts elucidated from the cross-examination of PW-2, after treating him as hostile by the prosecution. PW-2 admits that he gathered information from the people around that unless the bribe money is given to the accused, he will not do the needful. This set reinforced if one could see the facts elucidated from the cross-examination of PW-2, after treating him as hostile by the prosecution. PW-2 admits that he gathered information from the people around that unless the bribe money is given to the accused, he will not do the needful. Therefore, after lodging the complaint, he went to the TASMAC godown and met the accused. After receiving the acknowledgment for delivery, he placed the tainted money entrusted to him inside the pocket of the shirt hanging in the godown. Thus, consciously this witness has not only disowned his statement in the complaint regarding demand, but also positively deposed that the money was placed in the pocket of his shirt hanging in the godown, which on the accused point of view is an explanation for the presence of tainted money at the trap spot and presence of phenolphthalein in the shirt. There can be no doubt in any judicial mind that the defacto complainant has been won over by the accused so as to turn hostile to the prosecution. The attempt could have been succeeded but for PW.4-the official independent witness, who has been drafted by the trap team to oversee the transaction between the accused and PW-2. 23. Pw-4 has no axe to grid against the appellant. Neither he has any duty to blindly deposed in favour of the prosecution. He has been duly summoned by the trap laying officer-PW.10 to be witness for the trap proceedings. He has signed entrustment mahazar-Ex.P9. The tainted money entrusted to PW-2 at the office of Vigilance and Anti-Corruption, Virudhunagar has been recovered from the possession of the accused at TASMAC godown, Virudhunagar, which has been witnessed by PW-4 and PW-8. The recovery mahazar-Ex.P.10 is signed by the trap laying officer-PW10, shadow witness-PW4, the Manager, TASMAC godown-PW8 as well as the accused. It is not the sole evidence of PW.2-defacto complainant, which has been relied by the prosecution, but the evidence of PW-4 and PW-8, which adequately establishes the fact that the tainted money was recovered from the accused, who has kept the money inside pocket of his shirt and handed over the same to the trap laying officer after the phenolphthalein test found to be positive. 24. 24. The learned counsel appearing for the appellant had relied upon the judgments of the Madras High Court and the Honourable Supreme Court, where the defacto complainant has turned hostile and there is no corroborative evidence for demand and acceptance leading to acquittal. Whereas the facts of the present case as pointed out earlier, though PW-2 is hostile in respect of the demand and acceptance, the evidence of PW-4, PW-8 and PW-10 clearly proved the factum of demand, acceptance and recovery. It is not the tainted money alone being recovered by the accused, another 630/- rupees was also recovered from him for which the accused had not offered any explanation. 25. The contention of the learned counsel for the appellant that the Vigilance manual Rule 47 had not been complied by the trap laying officer-PW.10 also does not hold water in view of the fact that the opportunity to explain the possession of the money has been offered to the accused and the same has been recorded in Ex.P.10- recovery mahazar. It is specifically recorded in the mahazar that when the accused was asked to explain about the possession of tainted money Rs. 150/- as well as Rs. 630/-, he was not able to offer any explanation, but admitted that this money was received from PW-2 and Others, who have come to take delivery of IMFL bottles. This recovery mahazar-Ex.P10 is signed by the accused being a contemporaneous document carrying the signature of the accused, sufficient to dislodge the contention of the appellant that he has not afforded opportunity to explain the possession of tainted money under Rule 47 of the Vigilance manual. 26. In the light of the above discussion, this Court finds that there is no reason to interfere the well considered judgment of the trial court. Hence, the appeal is liable to be dismissed. 27. In the result, this Criminal Appeal is dismissed and the conviction and sentence dated 15.10.2008 passed in C.C.No.1507 of 1999, by the learned Chief Judicial Magistrate/Special Judge, Virudhunagar Camp at Srivilliputhur are confirmed. The Trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by the appellant/accused shall stand cancelled.