The Inspector Of Police v. S.Durga Singh

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 28.02.2017 DELIVERED ON : 26.07.2018

CORAM

THE HONOURABLE MR. JUSTICE S.BASKARAN Criminal Appeal No.498 of 2012 --- State rep. by The Inspector of Police, Vigilance and Anti-Corruption, City Special Unit-III Chennai.

Crime No15/AC/2004/CC-II ... Appellant/Complainant Vs.

S.Durga Singh,

...Respondent / Accused

Prayer: Criminal Appeal filed u/s 378 of Cr.P.C. 1973 against the acquittal of the accused passed by the Special Court for the cases Under Prevention of Corruption Act, Chennai in its judgment dated 21-05-2012 made in C.C.No.25 of 2011 (Old No.C.C.No.16 of 2007).

For Appellant : Mr.E.Raja, Additional Public Prosecutor For Respondent: Mr.Anantha Narayanan, Senior counsel For S.M.Nandhi Devan

JUDGMENT

The above Criminal Appeal is filed u/s 378 of Cr.P.C. 1973 against the acquittal of the accused passed by the Special Court for the cases Under Prevention of Corrup tion Act , Chennai in its judgment dated 21-05-2012 made in C.C.No.25 of 2011 (Old No.C.C.No.16 of 2007) and prayed to set aside the impugned judgment.

2.1. The respondent is the Accused in C.C.No.25 of 2011 (old C.C.No.16 of 2007) before the Special Court For the Cases Under Prevention of Corruption Act at Chennai. The crux of the

prosecution case is that the respondent/Accused was working as Assistant Revenue Officer, Division-57 to 63, Zone-IV, Corporation of Chennai, Anderson Road, Ayanavaram, Chennai and on 10-12-2004, he demanded an illegal gratification of Rs.10,000/- from PW-2 P.Chandrabose for assessing property tax to enable him to obtain E.B., Water and Drainage connection for the newly purchased house. Again on 16-12-2004 after a little bargaining with the PW-2, the respondent/accused had reduced his demand to Rs.3,000/- and had agreed to accept Rs.1000/- as advance and the balance on 17-12-2004, after completion of work and in pursuance of the said demand at about 17.00 hrs, on 1712-2004 the respondent/accused reiterated his earlier demand. 2.2 PW2-Chandrabose lodged Ex.P6 complaint on 17.12.2004 with The Deputy Superintend of Police, Vigilance and Anticorruption, Chennai on which a case came to be registered in FIR No.15/AC/2004/CC-II on the file of the appellant/complainant for the alleged offences under Sections 7 of the Prevention of Corruption Act, 1988.

2.3 A trap was organized by PW7 Prabakaran and PW3 Jeeva and one Elangovan of Forest Department , were directed to be present along with PW2 as witnesses. PW2 P.ChandraBoase produced a sum of Rs.1,000/- i.e. ten hundred rupees currency notes and the numbers of the said currency notes were recorded in the presence of Mahazar witnesses and the currency notes got smeared with phenolphthalein powder. The Pw2 P.Chandra Bose took the powder smeared notes and went along with PW3 and Elagovan to the office of the respondent/accused. PW7, Prabakaran and his team mates stood outside the said office. When the PW2 and PW3 went to meet the accused at his room the complainant PW.2 has seen that the accused was conversing with his subordinate, one Mr.Yessiah. After he left, the complainant PW.2 and PW.3 witness were inside the room. Immediately the respondent/accused questioned whether the bribe amount demanded by him was brought and PW.2 said yes.

Then the respondent/accused questioned about PW.3 Mr.Jeeva. The Pw.2 answered that PW.3 was his brother in law, then the respondent / accused received the money in his right hand and counted the rupees with both hands and the respondent/accused questioned PW.2 complainant as to when the balance of Rs.2,000/- would be paid and PW.2 replied that he would pay the amount as and when he receives the same. The respondent/accused kept the said money inside his right side part pocket. They were come out and PW2 Chandrabose gave the signal, immediately PW17, Inspector Prabakaran along with his team mates went inside the room of the accused and recovered the tainted money from him and then in the solution of clean water and sodium carbonate the both hand fingers of the respondent/accused was immersed upon which it turned into red color and on verification the numbers of the

currency notes were tallied with the numbers of the notes written in Ex.P3 Mahazar. Recovery Mahazar Proceedings Ex.P.3 recorded by the PW7. All the formalities were completed and after obtaining sanction charge sheet came to be filed against accused.

3. Copies of documents were furnished to the Accused u/s 207 Cr.P.C. and after hearing both sides and perusal of charge sheet, connected records and statements filed along with the charge sheet, the Trial Court framed charges under Section 7, 13

(2) r/w Section 13(1) (d) of the PC Act and the Accused pleaded not guilty. The Prosecution examined 9 witnesses and marked Ex.P1 to P14 and M.Os.1 to 4. On the side of the Accused, he marked as Ex.D1Fax Message through PW.7 and. The Trial Court, after hearing arguments of both sides and upon perusing the relevant evidence available on record has found that the prosecution has not proved the charges against the accused and acquitted the respondent/Accused for the offence punishable under Section 7, 13 (2) r/w Section 13(1) (d) of the PC Act. The said judgment is under challenge in this appeal.

4. The learned Counsel for the Appellant raised the following grounds to set-aside trial court judgment:- a). As per the records and as per the evidence of PW.9 Investigation officer, the charge sheet was laid within 11 days of obtaining sanction. The court seal and the signature made by the trial court clearly reveal that the charge sheet was filed on 23-07-2007 at 2.45pm and the trial court failed to look into the records and evidence adduced by the PW.9 investigation officer. But the trial court is wrong in coming to the conclusion that there is no whisper as to why the charge sheet was belatedly filed into the court.

b) The trial court miserably failed to peruse the records available on the file of the Special court. The LW-5 Tr.S.Yesiahan expired and an endorsement made by the then Special Public Prosecutor and the adjudication made by the Special Judge on 24-11-2010 went out of the sight of the trial court. Though the facts were clarified by the prosecution at the time of advancing the oral argument, the trial court completely ignored these facts. Therefore, the trial court is completely wrong in saying that, non examination of Mr.S.Yesiahan is fatal to the prosecution.

c). The evidence adduced by PW.4, the accused was placed under Additional Charge as one Tr.V.Ramanathan went on leave. From the evidence adduced by PW.5 it is clearly established by the prosecution that the accused processed the application of the complainant and the accused has played a role. The trial court failed to note that from the evidences adduced by PWs 4 and 5, the accused has a role to play.

d).The trial court failed to look into the exhibits Ex.P2 to

Ex.P5 and erred in holding that non-seizure of the file and non examination of Tr.S.Yesiahahn (expired) is fatal to the prosecution.

e).The trial court erred in holding that there is no evidence, in writing by the Inspector of Police asking them to be a witness (ie.P.W.3- the accompany witness who accompanied the complainant at the time of trap) and there is no evidence that they have availed half a day leave.

5. The learned counsel for the respondent submitted that the above grounds raised by the appellant are not sustainable one. The trial court discussed in detailed each and every aspects of the prosecution case and then only found that the prosecution has miserably failed to established his case beyond the reasonable doubt and come to conclusion of acquittal. Therefore it is submitted that there is no need to interfere the verdict of the trial court by this Hon'ble High Court and prayed to dismiss the appeal and confirmed the trial court judgment.

6. In the light of the above submissions, now the points that arise for consideration in this criminal appeal are -

(1) Whether the judgment of the lower Appellate Court in acquitting the Respondent suffers from any illegality or impropriety?

7. On careful consideration of arguments advanced by both sides and on perusal of records it is found that Ex.P.1 is the sanctioning order dated 21-12-2006. It is an admitted fact that the case was registered in the year 2004 and the charge sheet was filed on 23-07-2007. It is not correct for the appellant to contend that the charge sheet was laid within 11 days of obtaining the sanction. Therefore, the trial court rightly observed that the charge sheet was filed belatedly into the court.

8. As per the prosecution case during the time of receiving tainted amount LW.5 Yesiahan discussed with the respondent/accused. Therefore he is one of the vital witness to speak about the trap proceedings, but he was not examined by the prosecution. Hence the trial court came to a conclusion that non-examination of the said Yesiahn is also fatal to the prosecution, but in the grounds of appeal it is stated that the Yesiah has expired and an endorsement was made to that effect by the Special Public Prosecutor on 24-11-2010. Originally the trial commenced by January 2009 itself.

Therefore the prosecution had sufficient time to examine the above witness before 24.11.2010 itself. Further the death certificate of the said Yesiahan has not been produced by the prosecution. Thus there is no document available as such to reveal when the said

Yesiaha expired. Therefore the trial court came to the conclusion that the non-examination of the said witness is one of the failure on the part of the prosecution to prove the allegation against the accused.

9. The officer who is authenticated to assess the house tax is one Mr.V.Ramanathan. It is stated by the prosecution that the said Mr.V.Ramanathan was on leave and the accused was placed under additional charge in the place of the said Mr.V.Ramanathan. The above fact was corroborated by PW.4 and 5, but both the witnesses deposed that there is no written order to show that the accused was placed under additional charge in the place of Mr.V.Ramanathan. Apart from that the prosecution failed to submit the leave letter of the said Mr.V.Ramanathan. Therefore the trial court found that the accused has no role to play in assessing the house tax of PW.2.

10. The PW.5 categorically deposed that Exs.P2 to P5 the files relating to assessment of tax of the complainant is with the said Yesaiha. The above document was not seized from the accused and therefore the trial court came to conclusion that non seizure of the file and non examination of the said Yesaiha is fatal to the prosecution.

11. It is evident from the records that there is no requisition letter given in writing by PW.7 Inspector of Police seeking PW.3 and one Elangovan to accompany as witnesses in the trap proceedings. Further the appellant stated that both the witnesses have availed half a day leave, but to that effect also no supporting documents was submitted by the prosecution. Therefore the trial court found that the prosecution failed to follow the procedure established under the law in connection with trap proceedings.

12. In so far as the offence under Section 7 of the Act is concerned, it is a settled position in law that demand of illegal gratification is sine quo non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.

13. In the case on hand, the complainant who deposed as P.W.2 stated that on 17.02.2004, when he reached the office of the accused along with P.W.3-the official trap witness, the accused enquired about P.W.3 and then asked for the amount; immediately P.W.2 handed over ten numbers of Rs.100/- note and the accused received the same with his right hand and counted the same with both hands and the accused asked about the remaining Rs.2000/- to which the complainant replied that he will pay the amount as and when he gets the amount. Thereafter,

the accused put the amount in his right side pant pocket. However, the Official witness who deposed as P.W.3 stated that when they reached the office of the accused, the accused was talking with another person and when they requested him to help in their matter, the accused enquired P.W.2 as to whether he has brought the amount sought for by him. Immediately P.W.2 handed over Rs.1000/- to the accused and he received the amount with his left hand and counted the same with his right hand and then put the amount in his right side pant pocket. Immediately P.W.2 went out of the accused room. Thus P.W.3 has not stated anything about the accused asking balance of sum of Rs.2000/-. It creates doubt as to whether really the occurrence took place as stated by the complainant. Further P.W.

2 having stated in his chief examination that when accused demanded Rs.3000/- as bribe amount, there was no other person present, it is unbelievable that he would have brought only Rs.1000/- as bribe money. P.W.2 also stated that he kept Rs.1000/- as bribe amount in his right side shirt pocket in his chief examination. However, in his cross examination, P.W.2 stated that the bribe amount was kept by him in his right side pant pocket. In his further cross examination, P.W.2 stated that the bribe amount was kept by him in his shirt pocket. It is also pointed out that P.W.2 admitted in his evidence that for effecting name transfer, he was informed by the accused that expenses has to be paid, to which he has agreed.

Considering the above said circumstances, doubt arises as to whether really the demand was made by the accused as alleged by the prosecution. Further P.W.3, the trap witness has stated in his cross examination that he do not remember as to whether the complaint given by P.W.2 was typed one or handwritten. P.W.3 also stated that in Ex.P.8Entrustment Mahazar, nothing was mentioned about where the bribe amount was kept by P.W.2 either in his pant pocket or shirt pocket. P.W.3 also stated that he is unaware as to whether P.W.2 was having handkerchief to give pre arranged signal. It creates doubt. Since P.W.3 has stated in his chief examination that after the accused received the amount from P.W.

2, he came out of the accused room and gave the prearranged signal as told by Investigating Officer by removing his glass and wiping it with his handkerchief, if P.W.3 was unaware as to whether P.W.2 was having handkerchief or not, his evidence about the signal given by P.W.2 is doubtful. Further P.W.2 also stated that he cannot say as to the direction which the Aynavaram Revenue Inspector office is facing. He also stated that he informed the Police that P.W.2 is his brother-in-law. In such circumstances, doubt arises as to whether really P.W.3 accompanied P.W.2 and witnessed the incidents as stated by P.W.2.

14. In the light of the above said discussion, doubt arises as to whether really any demand of bribe amount was made by the accused as alleged by the prosecution. Thus, the prime

requisite of proving demand of bribe money is not established beyond reasonable doubt. On that ground also, the appeal has to fail.

15. In general, unless, the conclusion reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusion are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of appellate court in interfering with such conclusion is fully justified. On the other hand merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

16. In the present case the trial court recorded an order of acquittal on the basis of evidence available on record. On further evaluation of evidence made by the trial court while recording an order of acquittal does not suffer from any infirmity or illegality or manifest error and the grounds on which the order of acquittal is based, cannot be said to be unreasonable. Therefore the appeal is liable to be dismissed.

17. As stated above, the plea of the prosecution that demand of illegal gratification was made by the accused is not established beyond reasonable doubt. Considering the material available on record, the trial court has given a clear cut finding discussing elaborately the evidence placed before it and also stated the reasons for disbelieving the case of the prosecution. The same is based on proper appreciation of evidence. No ground is made out by the appellant/State to disturb the finding and conclusion arrived at by the Tribunal. In such circumstances, the prosecuting having failed to prove the guilt of the accused, the Criminal appeal has to fail and the Point is answered accordingly.

18. In the result, the Criminal Appeal is dismissed. The order of acquittal passed by the judgment dated 21-05-2012 made in C.C.25 of 2011 (Old C.C.No.16 of 2007) on the file of the Special Court For the Cases Under Prevention of Corruption Act at Chennai, is confirmed.

Sd/-- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar

nvsri To

1. The Inspector of Police, Vigilance and Anti-Corruption, City Special Unit-III Chennai.

2. The Special Court Judge for the cases Under Prevention of Corruption Act, Chennai.

Copy to:The Section Officer, Criminal Section, High Court, Madras +2cc to Mr.S.M.Nandhi Devan, Advocate SR.NO.50173 KGK(CO) sm:22.11.2018 Criminal Appeal No.498 of 2012