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2018 DIGILAW 3594 (MAD)

N. S. GANESAN v. STATE REP BY INSPECT OR POLICE

2018-10-08

G.JAYACHANDRAN

body2018
JUDGMENT G. JAYACHANDRAN, J. 1. The accused/appellant herein, was former SDE(Groups) BSNL, Thalavaipuram. This Appeal is directed against the conviction and sentence passed in C.C.No.15 of 2006 by the Special Court for CBI cases, Madurai. The accused/appellant herein found guilty of offences under Sections 7 and 13(1)(d) of P.C. Act, 1988. For demand and acceptance of illegal gratification of Rs. 1,500/- on 17.10.2006 from the said D.Manivanna as motive/reward to issue Work Completion certificate. 2. The gist of the prosecution case is that, Mr.N.S.Ganesan, the accused/appellant herein while serving as SDE(Groups) at BSNL Office, Thalavaipuram, was in charge of supervising the house keeping contract awarded M/s Kalai Industrial Security Services represented by its Managing Partner Mr.D.Manivanna for the period 01.11.2005 to 31.10.2006. He is supposed to issue work completion certificate duly signed which has to be accompanied along with monthly bill forwarded to SDE(General) Office of the General Manager, BSNL, Virudhunagar. 3. When Manivannaa sought for the work completion certificate for the months of August and September 2006, the accused/appellant demanded illegal gratification of Rs. 1,500/-. Pursuant to the compliant given by Manivanna, Inspector Sundararaman registered a complaint and laid trap. On 17.10.2006, the accused/appellant herein was caught red handed after receipt of the tainted money from Manivanna in the presence of the shadow witness S.Velusamy. The hand wash and shirt pocket wash with sodium carbonate solution turned pink, proving positive to the presence of phenolphthalein. The currency numbers found in the notes recovered from the accused/appellant and the numbers recorded in the entrustment mahazar were found tallied. 4. The explanation offered by the accused/appellant for receiving the money is that, the money was given by the contractor to pay one of the contract labourer Karrupaiah, which was not found to be true. Hence, final report against the accused/appellant after obtaining sanction to prosecute from Mr.E.S.Egaya, Chief General Manager, BSNL, Tamil Nadu Circle, for offences under Sections 7 and 13(1)(d) punishable under Section 13(2) of P.C.Act,1988. 5. To prove the charges, the prosecution has examined 9 witnesses, 22 documents and 5 material objects were relied. On the side of the defence, one witness and 2 exhibits were relied. 6. 5. To prove the charges, the prosecution has examined 9 witnesses, 22 documents and 5 material objects were relied. On the side of the defence, one witness and 2 exhibits were relied. 6. The learned trial Judge, on appreciating the evidence by tracing the contract entered between BSNL and M/s Kalai Industrial Securities Services, Pallathur, Karaikudi through Ex.P.10 agreement had held that the accused/appellant was incharge of Commercial for Thalavaipuram vide his posting order Ex.P.16. Payment for the house keeping work done will be made only relevant certificates are enclosed along with bills. M/s Kalai Industrial Securities Service had completed the work satisfactorily for the months of August and September 2006, the accused/appellant has not issued work completion certificate. Though through Ex.D1 and Ex.D2, the accused has pointed out lapse in house keeping and the explanation given by contractor, the said lapse are in respect of execution of the work 10 months prior to the incident. They are not related to the work executed during August and September 2006. Therefore, no reason to connect Ex.D1 and D2 with refusal to give work completion certificates. 7. The trial Court also declined to accept the testimony of D.W.1 that Rs. 1,500/- was received by the accused/appellant on his behalf towards wage arrears. The trial Court pointing out that if the money meant for wage arrears of D.W.1, accused/appellant could have received the money in his cabin or elsewhere. But need not have taken P.W.3 to the switch room and received the money in secrecy. When secrecy is not at all warranted for collecting wage arrears, there is no plausible explanation by the accused/appellant to receive the money in secrecy on behalf of a water boy. 8. The trial Court has concluded that the demand and acceptance had been proved through P.W.3 and P.W.4. N.Prabhu/ P.W.7, telephone mechanic has proved the fact that the accused/appellant was in the switch room along with P.W.3 and P.W.4 where, the accused/appellant is alleged to have received the bribe money. When the recovery of bribe money witnessed and proved by the evidence of P.W.3, P.W.4, P.W.6 and P.W.8 coupled with chemical analysis report, the trial Court has held that the accused/appellant is guilty of offence under Section 7 of P.C. Act for obtaining illegal gratification and guilt of offence under Section 13(1)d for abusing his official position to make pecuniary advantage by corrupt or illegal means. 9. 9. As a result, the trial Court convicted the accused/appellant to undergo one year Rigorous Imprisonment and pay a fine of Rs. 1,500/- in default three months Rigorous Imprisonment for offences under Section 7 and one year Rigorous Imprisonment and to pay a fine of Rs. 1,500/- in default three months Rigorous Imprisonment for offence under Section 13(2) r/w 13(1)d of P.C. Act. The period of sentence ordered to run concurrently. 10. Aggrieved by the above conviction and sentence, the accused/appellant has preferred the Appeal. The learned counsel appearing for the accused/appellant would submit that the trial Court has failed to appreciate the evidence of D.W.1 Karuppaiah, a worker under P.W.3 de facto complainant. At the relevant point of time, his presence during the trap proceedings is an admitted fact. The definite case of the accused/appellant is that he received Rs. 1,500/- from P.W.3 towards payment of wage arrears payable to D.W.1. Since P.W.3 failed to pay his contract labourer and the same was brought to the notice of the accused/appellant, he requested P.W.3 to settle the wage arrears. Since P.W.3 has motived against the accused/appellant for recommending to blacklist the de facto complainant for his non-performance, he has taken an opportunity to trap the accused/appellant. Therefore, under the guise of paying the wage arrears to Karrupiah, he has created a scene, as if the accused/appellant demanded Rs. 1,500/- as illegal gratification to issue work completion certificate. 11. Learned counsel for the accused/appellant would submit that the alleged demand of illegal gratification on 17.10.2006 at 10:30 a.m. and pursuant to the said illegal demand, a complaint Ex.P.3 was made to SP/CBI, Chennai over phone and pursuant to the direction of SP/CBI, Inspector of Police, CBI received a complaint at the hall of Rajapalayam Railway Station is highly imaginary and unbelievable since the sequence of events and time mentioned in the complaint/Ex.P.3, entrustment mahazar/Ex.P4, recovery mahazar/Ex.P.7 does not synchronise with each other. 12. Further more, the learned counsel would also submit that P.W.4 one of the shadow witness had deposed in the chief examination itself that the Divisional Manager instructed on 16.10.2016 to meet the CBI officer at Virudhunagar Railway Station on 17.10.2016 at 10:00 a.m. and accordingly he met the CBI officer. 12. Further more, the learned counsel would also submit that P.W.4 one of the shadow witness had deposed in the chief examination itself that the Divisional Manager instructed on 16.10.2016 to meet the CBI officer at Virudhunagar Railway Station on 17.10.2016 at 10:00 a.m. and accordingly he met the CBI officer. Therefore, when the complaint itself is on 17.10.2016, arranging independent witnesses a day earlier is improbable and this one particular fact is sufficient to disbelieve the entire case of the prosecution. 13. Further, learned counsel would also submit that when the prosecution has failed to co-relate with the money recovered from the accused/appellant and the Work Completion certificate Ex.P5 series. The trial Court ought not to have held that Ex.P.5 series was issued by the accused/appellant after receipt of illegal gratification of Rs. 1,500/- Before making pre-trap arrangements, the trap laying officer ought to have verified the credentials of the de facto complainant as well as the public servant against whom the complaint given. In this case, the trap laying officer has failed to enquire about the bonafide of the de facto complainant who is admittedly a black listed contractor having grievances against the accused/appellant, who has pointed out the deficiency in the service as well as non-payment of wage to the labourers. 14. Learned counsel specifically pointing out the deposition of D.W.1 and explanation given by the accused/appellant during Cr.P.C.313 proceedings would submit that the explanation given by the accused/appellant is not merely a possible explanation but highly probable explanation. Hence, the trial Court judgment is liable to be set aside. 15. Point for Consideration: Whether the explanation offered by the accused/appellant probably appreciated by the trial Court or not- From the evidence placed before the trial Court, the fact which are undisputed can be culled out as under: P.W.3 Manivanna is one of the partner of M/s.Kalai Industrial Security Services. BSNL, Virudhunagar Division has invited tender from prospective service providers for house keeping through Ex.P.9. The period of contract was between 01.11.2005 to 31.10.2006. Both BSNL and M/s.Kalai Industrial Security Services have entered into a written agreement for house keeping and the same is exhibited as Ex.P.10. 16. BSNL, Virudhunagar Division has invited tender from prospective service providers for house keeping through Ex.P.9. The period of contract was between 01.11.2005 to 31.10.2006. Both BSNL and M/s.Kalai Industrial Security Services have entered into a written agreement for house keeping and the same is exhibited as Ex.P.10. 16. On 28.11.2005, the Divisional Engineer (R.Rajapalayam) has written a letter to the Assistant General Manager (ADMN Virudhunagar), Office of the General Manager, BSNL, Virudhunagar reporting that a complaint has been received against the house keeping contractor (M/s.Kalai Industrial Security Services) that work not executed satisfactorily. There is no proper response from the contractor. The exchange is not kept neat and tidy in the absence of non-attendance of the house keeping workers. Therefore, the Divisional Engineer has recommended to black list the contractor. The said letter addressed to the General Manager has also been marked to M/s.Kalai Industrial Security Services. Those documents have been marked through P.W.3 by the accused as Ex.P1. In response to this recommendation and of black listing P.W.3 firm, the de facto complainant/P.W.3 through his Manager has written a letter dated 21.01.2006 which is marked as Ex.D2. In this letter they have pointed out that due to wordy quarrel between the BSNL staff and workers it has led to the stoppage of work and subsequently, work had resumed after conciliation between JTO, SDE and Union. The service providers has also promised that in future, there wont be any deficiency in service. Thereafter, till the month of July, the contractor has been paid for his service as per the agreement. 17. In the said circumstances, while admitted facts clearly indicates that to give work completion certificate for the month of August and September 2006, there is no adverse materials available to the appellant. In the said circumstances, the accused herein admits that he has received Rs. 1,500/- from P.W.3 on 17.10.2006. The money recovered from him tallied with the numbers noted in the entrustment mahazar. The reason given by the accused/appellant for receiving the money is that P.W.3 did not pay his labour Karrupiah who was actually incharge of executing the house keeping work. Since Karupiah complained to him that for the month of July and August 2006, P.W.3 has not paid him the wage, P.W.3 instructed Manivanna to clear the wage arrears of Rs. 1,500/- payable to Karrupiah. 18. After negotiations, Manivanna, P.W.3 agreed to pay Karrupiah Rs. Since Karupiah complained to him that for the month of July and August 2006, P.W.3 has not paid him the wage, P.W.3 instructed Manivanna to clear the wage arrears of Rs. 1,500/- payable to Karrupiah. 18. After negotiations, Manivanna, P.W.3 agreed to pay Karrupiah Rs. 1,500/- after 15.10.2006. Later, he was informed by Karrupiah that Manivanna will pay Rs. 1,500/- on 17.10.2006 and requested him to receive the same on his behalf. In the said context, on 17.10.2006 when Manivanna came to his office at 03:00 p.m. and gave Rs. 1,500/- he received it on behalf of Karrupiah. He never demanded illegal gratification nor received the money with an intention to obtain any pecuniary advantage by illegal means. 19. In support of his explanation and answer to incriminating evidences, he has examined D.W.1 Karrupiah who has deposed in support of the accused/appellant that P.W.3 owe wage arrears. Therefore, he reported the same to the accused/appellant. In turn, the accused/appellant called P.W.3 and enquired the matter. P.W.3 promised to settle the wage issue within three or four days. On 17.10.2006, he came to BSNL office to give sanitary materials to him and went to the accused/appellant's cabin. When he was arranging the sanitary materials, Manivanna/P.W.3 and A.E offered Rs. 1,500/- to him. Since his hands were soiled with phenolphthalein, he requested P.W.3 to hand over the money to the accused/appellant and signalled after the trap team came and apprehended the accused/appellant. 20. On holistic assessment of the deposition of the witnesses and the documentary evidence, it is crystal clear that on 17.10.2006 the accused/appellant has received Rs. 1,500/- from P.W.3 which is also admitted by the accused. The said Rs. 1,500/- was later recovered by the trap laying officer and marked as M O-4series . The very same currency which was entrusted to P.W.3 during the entrustment mahazar prepared early of the day at about 13:35 hours at Rajapalayam Railway Station in the presence of the independent witnesses recovered from the accused at BSNL office, Talavaipuram. Minor discrepancies and contradictions regarding the place at which the money was entrusted, whether it is the hall of Rajapalayam Railway Station or platform does not materials much to decide the case since the accused/appellant has admitted the receipt of the tainted money and the recovery of the same. 21. Minor discrepancies and contradictions regarding the place at which the money was entrusted, whether it is the hall of Rajapalayam Railway Station or platform does not materials much to decide the case since the accused/appellant has admitted the receipt of the tainted money and the recovery of the same. 21. If this money was received by the accused/appellant on the impression that it is meant for the worker Karrupiah(D.W.1) then as pointed out by the trial Court, he could have received the same at his cabin itself. He need not have come out to the switch room and accepted the same. Further, the trial Court has also rightly disbelieved the evidence of P.W.1 because if the intention of P.W.3 is to trap the accused/appellant, he would have not offered money to D.W.1 at the first instance. The motivated bribe giver would not have taken the risk of offering the tainted money to his labourer when his intention is to trap a public servant on the allegation of demand and acceptance of gratification other than legal remuneration. Therefore, there is no error in the trial Court finding that the money which is admittedly received by the appellant as motive/reward for issuing the work completion certificate. 22. The previous attempt to black list (i.e.,) ten months before this incident have no bearing on the present complaint and investigation. It is a clear case of accepting pecuniary advantage by the public servant abusing his position to discharge his duty of issuing work completion certificate. Since prosecution has proved the guilt of the accused/appellant beyond reasonable doubt and the failure of the accused/appellant to place any possible explanation to justify the acceptance of the money, the judgement of the trial Court sustains unassailable. 23. This Court finds no reason to interfere with the Judgment of the trial Court in C.C.No.15 of 2006 dated 04.04.2006 on the file of the Special Judge for CBI cases, Madurai and the conviction and sentence, hence it stands confirmed. 24. In the result, Criminal Appeal No.187 of 2008 dismissed. Judgment in CC.No.15 of 2006 dated 04.04.2006 is confirmed. 25. The Court below shall secure the accused/appellant and commit him to prison to undergo the remaining period of sentence. Bail bond if any executed by the appellant shall stand cancelled. With these directions, this Criminal Appeal is dismissed.