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2018 DIGILAW 3928 (MAD)

Masanam @ Muthiah v. State

2018-10-24

G.JAYACHANDRAN

body2018
JUDGMENT G. JAYACHANDRAN, J. 1. The Criminal Appeal is preferred by the sole accused challenging the illegality and correctness of the conviction and sentence imposed by the trial Court upon him for offence under Section 7 and 13(2) r/w 13(1) d of PC Act. 2. The appellant/accused was a public servant employed as Assistant at Collectorate, Theni District. Between 05.03.2002 to 09.08.2002, he was working as E.I. Assistant in the Account Section at the Collectorate. One G.Thirukannan, Heath Inspector, Primary Health Centre, T.Chithailaiseri Kombai, Theni District applied for housing loan from the Government in the year 2002. The same was processed and the Collectorate informed about the sanctioning of Housing Loan to him to the tune of Rs. 3,83,000/-. He was asked to furnish encumbrance certificate so that formal order and release of first installment towards building loan would be sanctioned. 3. On 07.08.2002, when G.Thirukannan met the accused/appellant Masanam requesting formal order, it is alleged that he demanded Rs. 750/- to be paid on 09.08.2002 at his office. Initially, the accused/appellant demanded Rs. 2,000/- and later reduced the bribe amount to Rs. 750/-. Not willing to give bribe, the de facto complainant G.Thirukannan, lodged a complaint with the Inspector, Vigilance and Anti Corruption, Madurai on 09.08.2002 alleging that he applied for housing loan on 03.11.2000. The District Collector vide his proceedings dated 31.07.2002 sanctioned loan of Rs. 3,83,000/- (Rupees Three Lakhs Eight Three Thousand only). He got the Encumbrance certificate for his property from 02.05.2000 to 31.07.2002 and submitted the same to the P.A., (Accounts) to Collector on 07.08.2002 at 12:00 hrs. He in turn directed him to meet Masanam(Assistant). When the de facto complainant met Masannam/the accused/appellant herein, he demanded Rs. 2,000/- as bribe to speed up the process of issuing formal order. When the de facto complainant G.Thirukannan expressed his inability to pay bribe, the accused told him that the said money is not only for him but it has to be shared with the Superintendent and P.A., to Collector. So, reduced the bribe amount to Rs. 750/- and told him to contact him over phone on 08.08.2002. 4. When the de facto complainant contacted the accused on the next day at about 10:30 hrs, he reiterated the demand of Rs. 750/- and also directed him to pay the money by Friday evening at his office. So, reduced the bribe amount to Rs. 750/- and told him to contact him over phone on 08.08.2002. 4. When the de facto complainant contacted the accused on the next day at about 10:30 hrs, he reiterated the demand of Rs. 750/- and also directed him to pay the money by Friday evening at his office. Hence, to take action against Masanam for demand of illegal gratification, on 09.08.2002 at about 09:00 hrs, the de facto complainant approached the Inspector of Police, Vigilance and Anti Corruption, Madurai to initiate action against the accused/appellant. 5. Based on the said complaint, Mr. Raj Kumar, Inspector of Police has registered First Information Report (F.I.R.,) and arranged for trap. On 09.08.2002 between 16:30 hrs and 17:50 hrs at the office of the Accounts Section, Collectorate, the accused/appellant pursuant to his earlier demand of bride for the issuance of formal order and to release the first installment of Housing building loan, demanded and accepted the same through G.Thirukannan. It was witnessed by the shadow witness Dayalan. After receiving the pre-arranged signal, the trap team rushed to the Accounts Section of the Collectorate and after disclosing their identity to the accused, he was asked to dip his hand fingers in the colourless Sodium Carbonate solution. On dipping his fingers, the solution colour turned into pink, indicting the presence of phenolphthalein. 6. The samples from that solution were collected separately in two different bottles and labeled. Thereafter, when the accused was queried, whether he has received any money from the de facto complainant G.Thirukannan, he admitted and handed over the tainted money to the Trap Laying Officer. Thereafter, his pant pocket, in which the tainted money was kept by the accused was also tested for the presence of Phenolphthalein and it proved positive. 7. P.W.9/Thiru. Shanmugavel, Inspector, Vigilance and anti Corruption, Madurai who took up the investigation, after collecting the chemical analysis report from the State Forensic Laboratory and after getting sanction from the District Collector to prosecute the accused has filed the final report along with the documents. The trial Court has framed charge under Section 7 of PC Act for demand and accepting Rs. 750/- as illegal gratification to dishonestly issue formal order and under Section 13(2) r/w 13(1)d of PC Act for abusing his position through corrupt and illegal means to make pecuniary advantage. 8. The trial Court has framed charge under Section 7 of PC Act for demand and accepting Rs. 750/- as illegal gratification to dishonestly issue formal order and under Section 13(2) r/w 13(1)d of PC Act for abusing his position through corrupt and illegal means to make pecuniary advantage. 8. The trial Court, after considering the depositions of PW.1 to P.W.10, Exhibits DW1 to DW22 and MO-1 to 5 relied by the prosecution to establish that the accused with dishonest intention demanded Rs. 750/- as motive to process the formal order regarding Housing Loan and pursuant to that has accepted Rs. 750/- from the de facto complainant P.W.1. On 09.08.2002, the accused was held guilty and convicted him to undergo one year Rigorous imprisonment and Rs. 500/- as fine, in default, one month Simple Imprisonment for each of the offences. The defence documents Ex.D1 and Ex.D2 and the deposition of D.W.1 to D.W.2 were found to be insufficient to probalise the defence of the accused that one Sreenivasagam, Deputy Superintendant attached to Vigilance and Anti Corruption has animosity against the accused/appellant for informing the Directorate of Vigilance and Anti Corruption regarding non-discharge of the loan amount availed by him. Hence, through P.W2 he has fabricated a false complaint and trap leading to the prosecution. 9. Aggrieved by the conviction and sentence, the present Appeal is filed on the ground that the defence version, as spoken by D.W.1, D.W.2 and exhibits D1 and D2 were not properly appreciated by the trial Court, ignoring the fact that the testimony for P.W.2 is not corroborated and the evidence of P.W.2 that when he called the accused on 08.08.2002 over the official phone, the accused demanded bribe over phone is highly unbelievable, which was not properly considered by the trial Court. In the complaint/Ex.P11, the de facto complainant has specifically mentioned that the accused/appellant demanded Rs. 750/- for him as well as for the Superintendent and P.A. Neither of them are accused nor included as witness. The flaw in the investigation for not arraying them as accused or witness has not been properly appreciated by the trial Court. 10. The credentials of P.W.2 nor the accused was enquired by the Trap Laying Officer before engaging himself in the trap proceedings. The uncorroborated version of P.W.2 has been heavily relied upon by the trial Court. The flaw in the investigation for not arraying them as accused or witness has not been properly appreciated by the trial Court. 10. The credentials of P.W.2 nor the accused was enquired by the Trap Laying Officer before engaging himself in the trap proceedings. The uncorroborated version of P.W.2 has been heavily relied upon by the trial Court. While admittedly, the shadow witness was not present when the money was transacted in the room of Mr.Manoharan, P.A to Collector. It is a specific case of P.W.2 that money was paid to the accused/appellant in the presence of P.A. to Collector in his cabin. While so, the said Manoharan though cited as witness, not examined by the prosecution for the reason best known. Withholding the best evidence, who is supposed to witness P.W.2 offering money to the accused and the same received by the accused, the case of the prosecution has to be doubted. The benefit of doubt should be given to the accused, since the trial Court has failed to do so and the judgment of the trial Court is liable to be set aside. 11. Per Contra, Mr. K.K. Ramakrishnan, learned Additional Public Prosecutor appearing on behalf of the State would submit that the sanctioning of housing loan in favour of Thirukannan and the communication from the Collectorate is not disputed by the accused. Meeting of the accused and the de facto complainant on the day of trap is also not disputed. The recovery of Rs. 750/- from the possession of the accused though disputed, but the presence of phenolphthalein in the pocket portion of his pant has not been explained by the accused. Whereas, the prosecution through the evidence of P.W.2 has categorically established beyond doubt that pursuant to the previous demand made by the accused on 07.08.2002, 08.08.2002 and 09.08.2002, the tainted currency notes of Rs. 750/- was given to him and the same was received by the accused and kept in his pant pocket and it was later recovered by the Trap Laying Officer/P.W.8 in the presence of P.W.3 and other witnesses. Therefore, while the prosecution has proved demand, acceptance and recovery, the presumption against the accused has to be drawn. 12. The trial Court has rightly drawn the presumption, which the defence has failed to rebut through D.W.1 & D.W.2 and Ex.D1 & Ex.D2. Therefore, while the prosecution has proved demand, acceptance and recovery, the presumption against the accused has to be drawn. 12. The trial Court has rightly drawn the presumption, which the defence has failed to rebut through D.W.1 & D.W.2 and Ex.D1 & Ex.D2. Learned Additional Public Prosecutor appearing for the State would submit that the explanation offered by the accused through these witnesses and documents, at the most would establish that, the accused was cast for issuing demand notice to one Sreenivasagam for his alleged default in paying the housing loan installments and Sreenivasagam had grievance over the accused for intimating the higher officials regarding his default in payment of loan. That could no way render the prosecution evidence null. The explanation offered by the accused has no relevance for the compliant given by Thirukannan and he receiving money of Rs. 750/- from Thirukannan. Therefore, the learned Additional Public Prosecutor appearing for the State would submit that there is no ground to interfere in the judgment of the trial Court and the present criminal appeal is liable to be dismissed. 13. Heard the learned senior counsel appearing for the appellant and Mr. K.K. Ramakrishnan, learned Additional Public Prosecutor appearing on behalf of the State and perused the materials placed before this Court. 14. Point for consideration: Whether the trial Court finding regarding guilt of the accused lack evidence- P.W.2 is the de facto complainant. In his complaint/Ex.P.11, he has spoken about his application for housing loan, sanction of housing loan and communication of the District Collector intimating the sanction of loan to him. 15. The specific case of the de facto complainant is that on 07.08.2002, he met Mr. Manohanran, P.A., to Collector, (Accounts) and submitted the Encumbrance certificate (Ex.P.7) along with the communication of the District Collector(Ex.P.8). According to the de facto complainant, Mr.Manoharan, told him to meet the accused. When he met the accused, he was taken to the verandah and a demand of Rs. 2,000/- to expedite the process for issuance of formal order was made by the accused. To this version there is no corroboration. In fact, Mr.Manoharan, though shown as listed witness, he has not been examined. Hence, the case of the prosecution regarding the first demand of bribe on 07.08.2002 stands uncorroborated. 16. The next demand alleged by the de facto complainant is when he called the accused over phone at this office. To this version there is no corroboration. In fact, Mr.Manoharan, though shown as listed witness, he has not been examined. Hence, the case of the prosecution regarding the first demand of bribe on 07.08.2002 stands uncorroborated. 16. The next demand alleged by the de facto complainant is when he called the accused over phone at this office. P.W.2 has mentioned in his complaint as well as deposed that on 08.08.2002 at about 10:30 hrs, the de facto complainant called the accused over phone. Somebody in the office picked the call and gave connection to the accused. The accused, then demanded money reiterating his earlier demand of bribe and also told him to give money on the next day. A genuine doubt is raised by the learned senior counsel appearing for the appellant that whether a bribe taker will openly talk over phone at his office during working hours in public and demand bribe. This version also, therefore doubtful. 17. The third demand and acceptance according to prosecution is that P.W.2 along with shadow witness Dhayalan/P.W.3 were asked to meet the accused at his office and to give the tainted money, if the accused demands it. P.W.2 and P.W.3 met the accused at about 2:30 p.m. at the office of the accused. The accused has informed P.W.2 that the formal order will be ready if he gives Rs. 250/- each for the P.A, Superintendent and himself, so that, he will get the signature of P.A. and will arrange for speedy disbursal of the loan. He gave the formal order and asked P.W.2 to take photo copies and come back. Accordingly, P.W2 and P.W.3 left the office of the accused and took sufficient numbers of photo copies and came back to the office of the accused. When photo copies of the formal order were handed over to the accused, the accused took P.W.2 into the cabin of Mr.Manoharan, P.A. to Collector. When Dhayalan P.W.3 attempted to go along with them, the Superintendent asked him to stay back. Even according to the prosecution case, P.W.2 alone went to the P.A room along with the accused. Inside the P.A. room, according to P.W.2, the accused demanded money and in the presence of P.A., he gave the tainted currency notes of Rs. 750/- to the accused. The accused received the same and kept it in his left side pant pocket. Even according to the prosecution case, P.W.2 alone went to the P.A room along with the accused. Inside the P.A. room, according to P.W.2, the accused demanded money and in the presence of P.A., he gave the tainted currency notes of Rs. 750/- to the accused. The accused received the same and kept it in his left side pant pocket. Thereafter, he and the accused left the P.A's room. 18. The specific evidence of P.W.2 is that while demand and acceptance of bribe money by the accused, Mr.Manoharan, P.A. to Collector was present and was a witness to the same. Unfortunately in this case, the said Manoharan has not been examined as witness. In fact, in the opinion of this Court, in the complaint Ex.P.11, it is specifically stated that the accused has demanded bribe of Rs. 750/- for himself and on behalf of the Superintendent and P.A., to Collector. Both were present in the trap spot. They are neither arrayed as an accused nor examined as witness before the Court. P.W.3 Dhayalan is not a witness to the transaction of tainted money from P.W.2 to the accused. Though he was asked to accompany P.W.2 and witness the transaction, he has stayed away and admittedly did not see the transaction. Whereas, Manoharan, who according to PW.2 witnessed the transaction has not been examined. 19. Yet another reason to disbelieve the case of prosecution is that in mahazar/Ex.P.13, it is mentioned that P.W.2 was entrusted with micro cassette recorder and he was asked to ON the recorder and record the conversation between him and the accused. The prosecution, now claims that P.W.2 forgot to ON the recorder when he entered the trap spot. Had P.W.2 scrupulously followed the instructions given by the Trap Laying Officer, then what transpired between the accused and de facto complainant could have come to light. This omission on the part of PW.2 created doubt about his genuinity. Therefore, solely based on the uncorroborated version of P.W.2, the guilt of the accused could not be surely ascertained. More particularly, when the complaint as well as the transaction as narrated by the prosecution does not implicate the accused alone. 20. In the light of the above discussion, it is pertinent to look into the explanation offered by the accused. The consistent stand of the accused is that no money was recovered from him. More particularly, when the complaint as well as the transaction as narrated by the prosecution does not implicate the accused alone. 20. In the light of the above discussion, it is pertinent to look into the explanation offered by the accused. The consistent stand of the accused is that no money was recovered from him. On receipt of Encumbrance certificate, he prepared draft formal order and gave it to the applicant, who in turn returned with multiple copies of it. The same was submitted to the P.A, who is the competent authority to sign it. 21. He, being in charge of following up the collection of loan amount, placed note to the Collector that K. Sreenivasagam, Inspector attached to Vigilance and Anti Corruption has availed additional Housing Loan of Rs. 70,000/- and has not submitted completion certificate and utilization certificate and therefore, he may be asked to repay the loan amount immediately in one installment. Pursuant to his note, the District Collector has sent a communication dated 22.05.2002 to the Director, Vigilance and Anti Corruption, Chennai. The said Sreenivasagam was present during the trap proceedings which is admitted by Thirukannan, P.W.2 as well as Rajkumar, P.W.8, the de facto complainant and the Trap Laying Officer respectively. Aggrieved by his action, Sreenivasagam has triggered PW.2 to give complaint against the officers at Collectorate and fix them. 22. In the light of the above said submission, if one look at the evidences of D.W.1 and D.W.2, they speak about the issuance of show cause notice to Sreenivasagam and the visit of the said Sreenivasagam to the Collectorate during the month of June 2002. He had enquired who his Masanam and when Masanam introduced himself, he has scolded him for issuing show cause notice to him through the Head Office, instead of directly intimating him. It is also deposed by D.W.2 that when the accused said that he has done nothing but discharged his duty. In turn, Sreenivasagam has told that "You have done your duty, I will do my duty". There can be no better motive for Sreenivasagam to trap the accused herein. While being so, when the complaint refers three persons as bribe demanders, the Trap Laying Officer, inspite of evidence available as against others, has focused only on the accused. 23. In turn, Sreenivasagam has told that "You have done your duty, I will do my duty". There can be no better motive for Sreenivasagam to trap the accused herein. While being so, when the complaint refers three persons as bribe demanders, the Trap Laying Officer, inspite of evidence available as against others, has focused only on the accused. 23. Learned Additional Public Prosecutor appearing on behalf of the State would submit that the accused has failed to establish the presence of phenolphthalein in his hands and pant pocket. Therefore, the presumption of demand and receipt of gratification has to be drawn. In this regard, the learned senior counsel appearing for the appellant would submit that there is contradiction in the version of P.W.2 and P.W.3 regarding the manner in which the tainted money was entrusted to P.W.2. The learned Senior Counsel would point out that in the entrustment mahazar, Ex.P.13, it is stated that the bribe money of 6 nos., of 100 rupees notes and 3 nos., of 50 rupees notes were smeared with phenolphthalein by S.Radhakrishnan (not examined) and handed over to the de facto complainant Thirukannan. Thirukannan received the money and kept it in his shirt pocket. 24. Whereas, P.W.2 in his deposition has stated that the tainted currency was put in his pocket by S.Radhakrishnan, to indicate he did not touch the tainted currency. But in the cross examination, he admits that he received the money from Radhakrishnan and kept in his pocket. P.W.8, Trap Laying Officer also in his deposition admits that the tainted currency was given to the accused and he received and kept it in his pocket before proceeding to the Trap laying spot. Thus, handling of currency smeared with phenolphthalein by P.W.2 is admitted and also forms part of the record which is Ex.P.13. In such circumstances, the exchange of papers namely the formal order between the accused and the de facto complainant could have caused the presence of phenolphthalein and therefore, mere phenolphthalein test found proved cannot be the ground for presuming that the accused received the tainted money and the receipt of the money was with dishonest intention to make pecuniary advantage with corrupt intention. 25. For the reasons stated above, this Court hold that the Trap Laying Officer and Investigating Officer has not done their investigation in accordance with law. 26. 25. For the reasons stated above, this Court hold that the Trap Laying Officer and Investigating Officer has not done their investigation in accordance with law. 26. The infirmities in the prosecution evidence enures the benefit of doubt in favour of the accused. Therefore, this Criminal Appeal is allowed. 27. The judgment of the trial Court of conviction and sentence is hereby set aside. In the result, Crl.A.(MD) No.323 of 2010 is allowed and the conviction and sentence passed by the trial Court in Spl.C.C.No.3 of 2006 on the file of Chief Judicial Magistrate, Theni dated 20.08.2010 is hereby set aside. The accused is acquitted of charges under Section 7 and 13(2) r/w 13(1) d of PC Act. Fine amount paid if already paid to be refunded to the accused/appellant. Bail bond executed shall stand discharged.