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2018 DIGILAW 3864 (MAD)

S. Saraswathy v. State

2018-10-23

G.JAYACHANDRAN

body2018
JUDGMENT G. JAYACHANDRAN, J. 1. The appellant herein is the accused in Special C.C.No.2 of 2005 on the file of the learned Special Judge for Vigilance and Anti Corruption cases cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur and she was found guilty for the offence punishable under Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1985. 2. Aggrieved by the conviction and sentence, the present appeal has been preferred. 3. The brief facts of the case : Saraswathi(appellant herein) was working as Noon-meal Supervisor at Municipal Office, Aruppukkottai in Virudhunagar District. She is responsible for supervising the Nutrition Center in Schools, Nutrition meal Centers and Accounts connected with Welfare Schemes. She is also responsible for receiving applications under Government Female Child Protection Scheme. She has to process the applications obtained from the mothers, who have only two female children and have an annual income less than of Rs. 12,500/- for Female Child Protection Scheme. If they are found eligible a sum of Rs. 15,200/- will be deposited in the name of the child. 4. One Mr. N. Arumugam of Puliampatti Village, Aruppukkottai made a complaint with the Inspector of Police, Vigilance and Anti Corruption, at Virudhunagar alleging that Sarawathi, Noon Meals Supervisor is demanding a sum of Rs. 200/- for forwarding his application to the District Social Welfare Officer, Virudhunagar made under Government Sponsor "Girl Child Protection Scheme". The complaint has been taken for investigation by the Inspector of Police on 23.09.2009 at 10.00 hours. The Inspector of Police attached to Vigilance and Anti Corruption Wing Virudhunagar, arranged two independent witnesses namely A.K. Narayanasamy and Sri Samith and they were asked to witness the trap proceedings. In their presence, the significance of phenolphthalein and Sodium Carbonate test demonstrated, currency meant for bribe was smeared with phenolphthalein and entrusted to Arumugam (defacto complainant). He was advised to go along with the shadow witness A.K. Narayanasamy to the Municipal Office and meet the accused. Further he was instructed to handle the tainted currency, if the accused demands for bribe. Entrustment Mahazar recording the above said events was prepared at the Vigilance Office by 03.15.p.m. 5. The defacto complainant and A.K. Narayanasamy proceeded to the Office of the accused. They were followed by the trap team led by Manmathapandian (Inspector of Police) at about 16.00 hours. The defacto complainant along with shadow witnesses met the accused. Entrustment Mahazar recording the above said events was prepared at the Vigilance Office by 03.15.p.m. 5. The defacto complainant and A.K. Narayanasamy proceeded to the Office of the accused. They were followed by the trap team led by Manmathapandian (Inspector of Police) at about 16.00 hours. The defacto complainant along with shadow witnesses met the accused. On the demand of bribe, the defacto complainant took the tainted two hundred rupees notes which were kept in his pocket and gave it to the accused. The accused received the money and put it in her table drawer. Thereafter, both Arumugam (defacto complainant) and the shadow witness A.K. Narayanasamy came out from the accused room and gave the prearranged signal to the trap team. 6. When the trap team proceeded towards the seat of the accused, the accused got alerted. Opened her table drawer and took out the tainted currency notes and thrown it away through the window. The Inspector of Police, Manmathapandian, requested the accused to dip her left and right hands separately in the Sodium Carbonate solution. It turned Pink. So collected samples and sealed it. Thereafter, he enquired the accused about the bribe money received from the defacto complainant. Initially, the accused denied the receipt of bribe, but when she was questioned about her action of throwing something away through window, she admitted the receipt of Rs. 200/- from the defacto complainant. The trap team went to the open ground and found two hundred rupees notes lying outside the window situated adjacent to the accused seat. With the above facts the accused was prosecuted for the offence under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act after obtaining sanction to prosecute her from the Director Social Welfare Department, who is the competent authority to remove the accused. 7. The trial court framed charges against the appellant under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. To prove the charges, the trial court has examined 13 witness and marked 24 Exhibits and 3 material objects. In support of the accused, 4 defence exhibits were marked. 8. The prosecution witnesses had deposed about the applications for Girl Child Protection Scheme dated 15.09.2000 signed by P.W.4. Kalavathi, the demand of a sum of Rs. To prove the charges, the trial court has examined 13 witness and marked 24 Exhibits and 3 material objects. In support of the accused, 4 defence exhibits were marked. 8. The prosecution witnesses had deposed about the applications for Girl Child Protection Scheme dated 15.09.2000 signed by P.W.4. Kalavathi, the demand of a sum of Rs. 200/- by the accused to forward the application to the District authority and the complaint of Arumugam regarding demand of illegal gratification and the trap proceedings. The exhibits marked on behalf of the accused speaks about the target fixed by the Government to the public servants to collect Flag Day donation and form 91 send for forwarding material objects to the court, wherein the tainted money was shown as money recovered from the accused whereas the case of the prosecution is that the money was recovered from the open ground below outside the window of the accused seat. 9. The trial court, after appreciating the evidence, found the accused guilty. The explanation given for the receipt of the money was negatived by the trial court on the ground that Flag Day donation cannot be collected in cash without issuance of receipt. If really Rs. 200/- was received by the accused towards flag day donation, she should have issued receipt for the same. Therefore, the presence of Phenolphthalein in her hand proves that she has received the tainted money and the said tainted money was not meant for any other legal remuneration. It is an illegal gratification as the reward with motive to forward the application of P.W.2. 10. Aggrieved by the said finding leading to conviction the present appeal is filed. 11. The learned counsel appearing for the appellant would submit that the case of the prosecution and the evidence let in by the prosecution bristles with serious infirmity on all scores. However, the trial court has failed to appreciate the evidence let in by the prosecution as against the evidence let in by the defence regarding demand, acceptance and recovering of the tainted money. 12. The learned counsel for the appellant would first point out that the delay in granting sanction itself is a ground to suspect the reliability of the prosecution case. 12. The learned counsel for the appellant would first point out that the delay in granting sanction itself is a ground to suspect the reliability of the prosecution case. The explanation given for the receipt of the money to meet the target of flag day collection in the light of Ex.D1 to D3 and facts elucidated through cross examination of P.W.1 not considered by the trial court. The case of the prosecution is that the money was recovered not from the possession of the accused, but from the open space outside the window of the accused seat. Whereas the sketch marks as Ex.P.24 does not indicate where from the tainted currency was collected/recovered. 13. The learned counsel also pointing out mahazhar Ex.P.6, which is contemporaneous documents submitted that it shows the right hand of the accused alone turned Pink during the Sodium Carbonate solution dip, whereas the Chemical Analysis report indicates both right and left hand wash of the accused found positive to Phenolphthalein Test. This clearly indicates manipulation in forwarding the samples. 14. Lastly, the learned counsel for the appellant would submit that the case of the prosecution is that the accused demanded Rs. 200/- to forward the application of P.W.2 to the District Office. In fact, the application, dated 15.09.2003 was forwarded to the District Office on 22.09.2003 and the same is proved through Ex.21 as well as the evidence of P.W.4. Therefore, the allegation that to forward the application Ex.P.W.2, the accused demanded Rs. 200/- and told the defacto complainant to come after one week with money and only then she will forward the application gets falsified. The very fact that the application dated 15.09.2003 had been forwarded with recommendation not only in respect of this defacto complainant, but along with two other applications on 22.09.2003 and no other applicant had made complaint of bribe demand. Therefore, the fact that the accused had on her own after scrutinizing the documents and records had forwarded the papers to the higher officers even a day prior to the trap not properly appreciated by the trial court. 15. Per contra, the learned Additional Public Prosecutor would submit that the defacto complainant and her wife are unlettered persons. Therefore, the fact that the accused had on her own after scrutinizing the documents and records had forwarded the papers to the higher officers even a day prior to the trap not properly appreciated by the trial court. 15. Per contra, the learned Additional Public Prosecutor would submit that the defacto complainant and her wife are unlettered persons. Evidence of P.W.2 , Arumugam (Defacto complainant) and evidence of P.W.4 Kalavathi jointly prove the factum of illegal demand of gratification by the accused when they met her on 15.09.2003 and submitted the application along with requested documents. No doubt the accused has forwarded the application with her recommendation on 22.09.2003. But, as per the complaint of the defacto complainant, the demand was made as early as 15.09.2003. In anticipation of bribe the accused has forwarded the application with recommendation and that is the reason why she has told the defacto complainant to come after one week. Suppressing the fact that she has already forwarded the application when P.W.2 came and met her on 23.09.2003, she has received the tainted money. Further her conduct of discarding the tainted money immediately, on seeing the trap team has also been taken note by the trail court. He further submitted that the prosecution has proved the demand of illegal gratification through P.W.2 and P.W.4. The second demand on the date of trap is proved through the deposition of P.W.2 (Defacto complainant) and the shadow witness P.W.3. The recovery of tainted money from the open space near the window of accused seat, based on the information given by the accused and the presence of Phenolphthalein in her hands prove the factum of acceptance and recovery beyond doubt. The explanation offered by the accused is totally unsatisfactory, since the accused would able to show only the communication regarding collection of flag day, but she had no receipts for the same. No Officer can collect flag day donation without issuing receipts. Therefore, the learned Additional Public Prosecutor would submit that the prosecution had proved their case beyond reasonable doubt and trial court has rightly convicted the accused. 16. Points for consideration: Whether the reverse burden of proof cast upon the accused is discharged by the accused in this case. 17. The crucial point, in this case is that whether Rs. Therefore, the learned Additional Public Prosecutor would submit that the prosecution had proved their case beyond reasonable doubt and trial court has rightly convicted the accused. 16. Points for consideration: Whether the reverse burden of proof cast upon the accused is discharged by the accused in this case. 17. The crucial point, in this case is that whether Rs. 200/- recovered by the P.W.11 the trap laying Officer under Mahazar Ex.P.6 was received by the accused as gratification other than legal remuneration. In this regard if we see the deposition of P.W.2 he say first he and his wife met the accused on 15.09.2003 and handed over the application along with requisite documents. The accused demanded Rs. 200/- to forward the application to get Government aid that has forced him to give the complaint on 23.09.2003. The seven days delay in giving complaint is explained by the prosecution that the accused told the defacto complainant to come after one week any time in the after noon and therefore, the defacto complainant lodged the complaint after one week from the first demand. Regarding the second demand on 23.09.2003 P.W.2, the defacto complainant and P.W.3 shadow witness would say that he asked the accused whether she has forwarded his application. The accused said, "only if you give Rs. 200/- I will forward the application." Thereafter, P.W.2 took out the tainted money and handed over to the accused, the accused put the money in her table drawer. 18. According to the shadow witness P.W.3, when they met the accused, the accused asked whether P.W.2 has brought the bribe money to forward the application. The accused answered in positive and handed over to the tainted money to the accused. 19. There is a ray of doubt in the case of the prosecution regarding the manner of recovery. The rough sketch indicates it was prepared by Additional Superintendent of Police, on 23.09.2003, the day of trap itself. No where in this sketch the window through which the accused threw the money is shown. Not the place of recovery of the tainted money is marked. 20. P.W.3 the shadow witness would say that, immediately on seeing the trap team, he saw the accused throwing the tainted money through the window. No where in this sketch the window through which the accused threw the money is shown. Not the place of recovery of the tainted money is marked. 20. P.W.3 the shadow witness would say that, immediately on seeing the trap team, he saw the accused throwing the tainted money through the window. If so, the case of the prosecution is that only after conducting Phenolphthalein test in the hands of the accused and collecting the samples, they went out and collected the tainted money lying on the open space outside just below the window near of the accused seat. This version of prosecution does not appears to be true will 2 hundred rupees currency if its thrown through window lay there as it, is in a open public place for a long time. More so, when P.W.3 has seen the accused throwing the money through window, should not the trap laying the officer immediately, act upon and recover the same. Instead in this case he has completed the Phenolphthalein test and thereafter, went in search of the tainted money. 21. In the light of the above lapse and contradiction the consistent case of the accused that she did not demand any illegal gratification, she did not received any bribe money and the recovery of money was not recovered from her possession requires due consideration. 22. Considering the inconsistency and contradiction in the case of the prosecution in respect of demand, acceptance and recovery the appellant/accused is entitled for the benefit of doubt. Therefore, this Criminal Appeal is liable to be allowed. 23. As a result, this Criminal Appeal is allowed. The Judgment of conviction and sentence dated 17.11.2009 passed in Special C.C.No.2 of 2005 by the learned Special Judge for Vigilance and Anti Corruption cases cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur is set aside. The appellant/accused is acquitted from the charges under Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1985. Bail bond if any executed by him, shall stand cancelled. Fine amount if any paid by her shall be refunded forthwith.