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2018 DIGILAW 3777 (MAD)

S. Namasivayam v. State

2018-10-12

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. The appellant herein, who is accused, has been convicted by the Trial Court in C.C.No.20 of 2012 on the file of the learned Chief Judicial Magistrate-cum-Special Judge for Vigilance and Anti Corruption Cases, Sivagangai for offences under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 [hereinafter referred to as 'P.C. Act']. The sentence and conviction imposed on the appellant/accused are for demanding Rs. 500/- as illegal gratification from Subbaiah on 06.01.2001 for issuing valuation certificate and receiving the same on 08.01.2001 at 08.00 p.m. in his house to make pecuniary advantage abusing his official position by dishonest and corrupt means. 2. The Trial Court while holding the appellant/accused guilty of the said charges, has sentenced him to undergo 1 year rigorous imprisonment with fine of Rs. 1,000/- in default to undergo 3 months rigorous imprisonment for the offence under Section 7 of P.C. Act and also sentenced him to undergo 1 year rigorous imprisonment with fine of Rs. 1,000/- in default to undergo 3 months rigorous imprisonment for the offence under Section 13(2) read with 13(1)(d) of P.C. Act. Aggrieved by the conviction and sentence, the present Criminal Appeal is filed. 3. Before adverting to the merits of the case canvassed by the appellant/accused it is necessary to record the case of the prosecution in brief and the same is as under: (i) Thiru.S.Namasivayam (accused) was the Village Administrative Officer, Palaiyur Group, Karaikudi Taluk, Sivagangai District during the relevant point of time. He is a public servant as defined under the P.C. Act. (ii) One Thiru.Subbaiah, resident of Periyavengaivayal, Sakkottai Post, Sivagangai District, applied for housing loan to construct a residential premises in the plot at Survey No.226/4C owned by him. For the said purpose, the bank officials asked for valuation certificate. Hence, he went to the office of the Village Administrative Officer and gave an application for issuance of valuation certificate annexing the documents related to patta issued to the property. The said request was made on 06.12.2000 to the accused, the then Village Administrative Officer. Later, when he met the accused for the valuation certificate, once at his house and next time at his office, he did not respond it properly. (iii) Therefore, on 06.01.2001, he went to the house of the accused alongwith Mr.VR.Karuthan (P.W.3), the panchayat president of the village. Later, when he met the accused for the valuation certificate, once at his house and next time at his office, he did not respond it properly. (iii) Therefore, on 06.01.2001, he went to the house of the accused alongwith Mr.VR.Karuthan (P.W.3), the panchayat president of the village. At that time, the accused told Subbaiah that how can he give valuation certificate without any consideration and at least he should give Rs. 1,000/-. On hearing this, Karuthan (P.W.3) requested the accused to give valuation certificate to Subbaiah without demanding money, since he is a poor man. On his recommendation, the accused reduced his demand of gratification from Rs. 1,000/- to Rs. 500/- and said if Rs. 500/- paid, he will give the valuation certificate. Subbaiah had no other alternate, but agreed for the same, since he was in dire need of housing loan for which valuation certificate of his property is pre-requisite. (iv) Unwilling to pay bribe and get valuation certificate, Subbaiah went to the Vigilance Office along with Karuthan and presented a complaint against the accused. The complaint was taken on file and registered as case in Crime No.2 of 2001 under Section 7 of P.C. Act on 08.01.2001 at 11.30 hours by Tmt.Fatima Rohini, Woman Inspector of Police. (v) Pursuant to the complaint alleging illegal gratification, a trap was arranged by the Inspector of Police. Two witnesses by name Sadeeshkumar and Balaskandan were secured to witness the trap proceedings. In their presence, significance of phenolphthalein test was demonstrated and explained. Five 100 rupee notes were smeared with phenolphthalein and entrusted to Subbaiah. Entrustment mahazar was prepared and completed by 02.45 p.m. Subbaiah (de facto complainant) was asked to meet the Village Administrative Officer in his residence along with Mr.Sadeeshkumar (shadow witness) and if the accused reiterates his demand of illegal gratification, Subbaiah should give the tainted money and give the prearranged signal. Sadeeshkumar (shadow witness) was instructed to witness the sequence of events. (vi) Accordingly, Subbaiah and Sadeeshkumar went to the house of the accused. The trap team headed by Tmt.Fathima Rohini (Inspector of Police) followed them and took position near the residence of the accused. At about 05.00 p.m., Subbiah and Sadeeshkumar went to the house of the accused and learnt that he will return home only at 08.00 p.m. So they were waiting for the accused till 08.00 p.m. and then went again to his house. At about 05.00 p.m., Subbiah and Sadeeshkumar went to the house of the accused and learnt that he will return home only at 08.00 p.m. So they were waiting for the accused till 08.00 p.m. and then went again to his house. When Subbiah and Sadeeshkumar went to accused house and requested for valuation certificate, the accused demanded the money and received the same from Subbaiah. After placing the money in his shirt pocket, he gave the valuation certificate to Subbiah. (vii) After receiving the prearranged signal, the trap team intercepted the accused, who was about to leave his house in his cycle. At the request of the accused Namasivayam, he was taken into his house. After conducting sodium carbonate solution test of his hands, which proved positive, he was enquired whether he received any money from Subbaiah. The accused answered in affirmative and produced the tainted money from his pocket. The money as well as membership card of Village Administrative Officer's Association was recovered from his possession. The documents pertaining to the application of Subbaiah were in possession of the accused and the same were recovered under mahazar. (viii) After obtaining the chemical analysis report and sanction to prosecute the accused for receiving illegal gratification of Rs. 500/- from Subbaiah, the prosecution has laid the final report before the Trial Court. (ix) Pursuant to the final report and the documents annexed along with the final report, the Trial Court has framed charge under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act against the accused for demand and receipt of Rs. 500/- as illegal gratification from Subbaiah on 08.01.2001 at about 08.00 p.m. and for abusing his official position to obtain pecuniary advantage for corrupt and illegal means. (x) To prove the case, the prosecution has examined 12 witnesses and marked 17 exhibits and 3 material objects. The tainted money is marked as M.O.1. The shirt in which the tainted currency was kept by the accused, is marked as M.O.3. On the side of the defence, one witness has been examined. (xi) The Trial Court on considering the facts and evidence adduced by the prosecution as well as the explanation offered by the accused in respect of the tainted money, held that the demand and acceptance of illegal gratification by the accused is proved by the prosecution through the evidence of P.W.2, who is the de facto complainant. (xi) The Trial Court on considering the facts and evidence adduced by the prosecution as well as the explanation offered by the accused in respect of the tainted money, held that the demand and acceptance of illegal gratification by the accused is proved by the prosecution through the evidence of P.W.2, who is the de facto complainant. The complaint given by P.W.2 which is marked as Ex.P.3, is identified by the witness. P.W.3 has accompanied by P.W.2 while lodging the complaint. When the de facto complainant was in dire necessity of valuation certificate to avail the loan, the protraction of the accused to issue the valuation certificate and his explicit demand of money on 08.01.2001 were found to be proved by the prosecution and pursuant to the complaint, the trap laid by the prosecution as spoken by the trap laying officer and the accompanying witness, is also accepted by the Trial Court. The defence explanation that the money was thrusted on him without his knowledge in the public street while the accused was returning home, has not been found to be true by the Trial Court. Further, the defence taken by the accused that he had enmity with P.W.3 and therefore, through P.W.2 he had trapped in the bribery case also found to be false by the Trial Court. Aggrieved by the said finding, the present Criminal Appeal is filed. 4. The learned counsel appearing for the appellant/accused would submit that Trial Court has failed to note that the complaint (Ex.P.3) itself is a doubtful complaint motivated by P.W.3, who had previous enmity with the accused. The learned counsel would also question the validity and the sanction accorded by P.W.1 to prosecute the accused. There was no material evidence collected by the prosecution to substantiate the case of the de facto complainant that he applied for housing loan and for that purpose he required valuation certificate and to get the valuation certificate for the purpose of availing loan, he approached the accused. 5. The further contention of the learned counsel appearing for the appellant/accused is that valuation certificates are issued only by Tahsildars and not by Village Administrative Officers. Thus, the substratum of the prosecution case totally goes. Mere presence of phenolphthalein in the hands of the accused person, is not a conclusive proof of demand and acceptance. 5. The further contention of the learned counsel appearing for the appellant/accused is that valuation certificates are issued only by Tahsildars and not by Village Administrative Officers. Thus, the substratum of the prosecution case totally goes. Mere presence of phenolphthalein in the hands of the accused person, is not a conclusive proof of demand and acceptance. Mere recovery of tainted money is not a proof of receipt of illegal gratification other than legal remuneration. While the prosecution has failed to prove the money recovered from the accused was obtained by him as illegal gratification, the Trial Court ought not to have convicted the accused. 6. The learned counsel appearing for the appellant/accused would also vehemently argue that the evidence is not cogent and sufficient to prove the case of the prosecution. The explanation offered by the accused through D.W.1 has not been appreciated by the Trial Court. The money which was alleged to have been recovered from the possession of the accused is not in the manner in which the prosecution, as projected. The place, time and manner in which the money was thrusted in his pocket forcibly by the accused in the public street near Kannadasan Manimandapam, has never been considered by the Trial Court in proper perspective. The evidence of P.W.2 and P.W.4 regarding the manner in which the money received by the accused and kept in his pocket goes to show that their evidence is unreliable. 7. Per contra, the learned Additional Public Prosecutor appearing for the respondent relying upon the portion of the reasoning given by the Trial Court which is sufficient to hold that the prosecution has proved the guilt of the accused and the sanction order (Ex.P.1) along with the testimony of P.W.1, who has accorded sanction, would submit that the sanction order is valid and it has been issued by P.W.1 after perusing the documents and application of mind. The motive attributed for the complaint and alleged animosity between P.W.3 and the accused suggested to P.W.1 has been stoutly denied by this witness. No doubt, in the cross-examination, P.W.1 has stated that the valuation certificate can be issued only by Tahsildar. However, the document seized during the trap indicates that the accused has issued valuation certificate to the de facto complainant on receipt of bribe. No doubt, in the cross-examination, P.W.1 has stated that the valuation certificate can be issued only by Tahsildar. However, the document seized during the trap indicates that the accused has issued valuation certificate to the de facto complainant on receipt of bribe. If Village Administrative Officers are not competent to issue valuation certificate, then the appellant/accused ought not to have issued valuation certificate to Subbaiah. 8. Pointing out Ex.P.6, wherein the appellant/accused has signed in the certificate, the learned Additional Public Prosecutor would submit that the case of the prosecution is cogently proved through the complaint of P.W.2 and the evidence of P.W.2 is fully corroborated by P.W.3 and P.W.4 in respect of demand of gratification on the earlier occasion on 06.01.2001 and demand, receipt of illegal gratification on 08.01.2001 and Ex.P.6, which was handed over to the de facto complainant by the accused after receiving the illegal gratification. The recovery of tainted money from the accused had made the Trial Court to hold the appellant/accused guilty. Since the Trial Court Judgment is based on reasons and law, it is to be confirmed. 9. Point for consideration: "Whether the Trial Court is erred in accepting the evidence let in by the prosecution to prove the charge as against the evidence let in by the accused to rebut the presumption and explanation offered for the presence of tainted money in his possession?" 10. The learned counsel appearing for the appellant/accused would submit that the entire case of the prosecution is based on the make belief statements of P.W.2 and P.W.3. When the prosecution through P.W.2 failed to prima facie establish that there was requirement of valuation certificate to P.W.2 and the accused is the person competent to give valuation certificate, the very basis of the prosecution is false coupled with the fact that the accused has probabilise the theory of thrusting the tainted money forcibly in his pocket through D.W.1. 11. As far as the challenge to the sanction to prosecute is concerned, P.W.1, the Revenue Divisional Officer, has accorded sanction to prosecute the accused. It is stated in his sanction order (Ex.P.1) that he is the authority to remove officers at the rank of Village Administrative Officer from office and hence, he is competent to accord the sanction. 11. As far as the challenge to the sanction to prosecute is concerned, P.W.1, the Revenue Divisional Officer, has accorded sanction to prosecute the accused. It is stated in his sanction order (Ex.P.1) that he is the authority to remove officers at the rank of Village Administrative Officer from office and hence, he is competent to accord the sanction. After narrating the facts of the case and listing out the documents, he has perused like, First Information Report, mahazar, statements of witnesses, statement of accused, chemical analysis report and recording the subjective satisfaction, he has accorded the sanction. Therefore, this Court finds no error or illegality to entertain the doubt about the authority of P.W.1 to accord sanction or his application of mind. 12. Ex.P.2 is the application given to the accused by P.W.2 for valuation certificate. This requisition letter has to be considered along with Ex.P.6 and Ex.P.9, which is the valuation certificate issued by the accused to the de facto complainant. This certificate is signed by the accused. This has been seized at the time of trap. According to P.W.2, the certificate was given to him by the accused after receiving illegal gratification of Rs. 500/- from him. It is a handwritten certificate with the seal of the accused and signature with date. In this certificate, the accused has stated that Subbaiah, son of Perumal owns a land worth Rs. 30,000/-. Having issued this certificate, the accused cannot plead that he is not a person competent to issue valuation certificate and there is no necessity for him to demand any illegal gratification. 13. The further defence is that the money was thrusted into his pocket from behind while he was walking along the road near Kannadasan Manimandapam. To substantiate the said explanation, he has examined one Muthu as D.W.1. He has explained his presence with the accused on the day of trap with an introduction that on 08.01.2001 at about 06.30 p.m., he went to Karaikudi Taluk Office to meet the surveyor. After meeting the surveyor, he and the accused left Karaikudi Taluk Office together at 06.30 p.m. and while walking near Kannadasan Manimandapam, Subbaiah placed 100 rupee notes into the pocket of the accused from behind. Noticing that, the accused hit his hands. The currency fell on the road. The accused picked up the currencies and called Subbaiah. But Subbiah, shouted IMAGE . Noticing that, the accused hit his hands. The currency fell on the road. The accused picked up the currencies and called Subbaiah. But Subbiah, shouted IMAGE . On his cry, two, three persons came and caught hold of the accused. This witness, in the chief-examination has emphasized that the accused was apprehended by the police only near Kannadasan Manimandapam. In the cross-examination, it has been elicited through this witness that he has no evidence for his visit to Taluk Office on that day and he does not have any receipt for measurement of his land through surveyor. The friendship between this witness and the accused was also admitted by the witness. 14. The evidence of D.W.1 is unreliable for more than one reason. The incident of thrusting money to the pocket alleged to have happened near Kannadasan Manimandapam, which is a public place. If somebody has dropped money on the floor and cried as IMAGE , it would have necessarily attracted public attention. In this case, Muthaiah Ramanathan (P.W.5) has categorically stated that he being a house owner in which the accused was residing as a tenant on the day of trap he saw the trap team and they requested him to be witness. This would fortify the case of the prosecution that the accused was a tenant under him paying Rs. 850/- per month for the house No.14. On 08.01.2001, at about 08.30 p.m., there was a crowd in the house of the accused. When the vigilance officers requested P.W.5 to cooperate and witness the proceedings, he told them that he is otherwise busy. 15. The presumption cast upon the accused under Section 20 of P.C. Act can be rebutted through several modes. In this case, the accused has attempted to rebut the presumption by examining D.W.1 and introducing a theory of planting the tainted money in his pocket in a public place. 16. The entire case of the prosecution is that P.W.2 and P.W.4 went to the house of the accused and when the accused demanded money, the same was given to him and on obtaining the money, the accused handed over the valuation certificate (Ex.P.6) to P.W.2. When the case of the prosecution clearly and cogently established through the evidence stated above, the theory of planting the money does not appear to be possible. 17. When the case of the prosecution clearly and cogently established through the evidence stated above, the theory of planting the money does not appear to be possible. 17. In the light of the above facts, this Court holds that the Trial Court finding is sustainable. The points canvassed before this Court in appeal are merit-less and liable to be rejected. Accordingly, this criminal appeal is liable to be dismissed. 18. In the result, this Criminal Appeal is dismissed. The conviction and sentence dated dated 31.03.2008 passed in C.C.No.20 of 2002 by the learned Chief Judicial Magistrate-cum-Special Judge for Vigilance and Anti Corruption Cases, Sivagangai 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 him shall stand cancelled.