BAIL SLIP:- The Appellant herein Viz P. Sanjeevi, accused in CC.No.206/97 on the file of the Prl Spl Judge, CBI Cases Chennai was directed to be released on bail as per orders to this court dated 13.1.1999 made in Crl.MP.no.11329 of 1998 in CA.No.1113 of 1998. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 20.03.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.1113 of 1998 P.Sanjeevi .. Appellant/Accused Vs. State rep by The Inspector of Police, Special Police Establishment Central Bureau of Investigation, Anti-Corruption Branch, Chennai in Cr.No.35(A)/1996 .. Respondent/Complaint Prayer: This appeal has been preferred under section 27 of the prevention of corruption act 1988 and under section 374, 382 of Cr.PC against Judgment dated 07.12.1998, made in C.C.No.206 of 1997 on the file of the Principal Special Judge for CBI Cases, Chennai. For Appellant : Mr.A.V.Somasundaram for M/s. Lakshmi Priya, Associates For Respondent : Mr.N.Chandarasekaran, Spl. Public prosecutor for CBI Cases. JUDGMENT This appeal has been preferred against the judgment in C.C.No.206 of 1997 on the file of the Principal Special Judge for CBI Cases, Chennai. The accused has been charged under section 7 and also under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The charge against the accused is that he being a public servant as lineman at Anna Road, RSU Telephone Exchange, Madras Talephone, directly demanded and accepted from the complainant viz. Shri J.Gnanasekaran on 28.06.1996 at about 1.40 pm https://hcservices.ecourts.gov.in/hcservices/ at Madras a sum of Rs.300/- as illegal gratification other than legal remuneration as a motive or reward for repairing the faults in his telephone bearing indicator No.8547095 and hence committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and on the same day at the same time and in the same transaction by corrupt or illegal means otherwise abusing your official position as such public servant obtained for yourself pecuniary advantage to the extent of Rs.300/- from Shri.J.Gnanasekaran for repairing his fault telephone bearing No.8547095 and thereby committed an offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 2. The case was taken on file as C.C.No.206/1997 by the 11th Additional Special Judge for CBI cases, Madras. On appearance of the accused on summons, the learned trial judge has furnished copies under Section 207 of Cr.P.C. On the side of the Prosecution P.W.1 to P.W.8 were examined and Ex.P.1 to Ex.P.18 were exhibited and M.O.1 to M.O.17 were marked. 3. P.W.1 is the Sub-Divisional Engineer, Madras Telephones, Chenai. During 1996 he was working as Sub-Divisional Engineer, Chennai Telephones. The accused Sanjeevi was working as lineman in the same department as Class IV employee. According to P.W.1, he is the competent authority to take disciplinary action against the accused. P & T Manual Volume III, Part VII empowering the Sub- Divisional Engineer who is Group B Officer to appoint, to take disciplinary action and to remove from service Class IV employees (Group D). The copy of the abovesaid notification is Ex.P.1. Ex.P.2 is the sanction order for prosecution of the accused passed by P.W.1. P.W.1 would depose that before issuing sanction order he had perused the complaint and report and FIR and other documents pertaining to the statements of the witnesses etc. after applying his mind on perusing the said documents and relevant records and after getting himself satisfied that a prima facie case has been made out against the accused, he(P.W.1) had accorded sanction under Ex.P.2. 4. 4(1) P.W.2-Gnanasekaran, the complainant, would depose that he is indulging in taking orders in off-set printings. During 1996, he was having his business at Door No.49, 2nd street, Pudupet, Chennai. The telephone indicator number for the said premises is 8547095. The said telephone indicator number was assigned to him in the month of April. On 26.6.1996 he went to his office as usual. At that time he found the telephone line was snapped and the wire was kept in a roll. He was informed by the occupants of the upstairs portion that a lineman along with two persons came from Anna Road Telephone Exchange and snapped the telephone wire and that they also informed him(P.W.2) to go and meet in their office. Immediately P.W.2 has rushed to the telephone exchange office and enquired about https://hcservices.ecourts.gov.in/hcservices/ the whereabouts of the lineman, where he was informed that the person who gave the connection for his telephone alone had disconnected the same. In spite of his(P.W.2) effective search he could not find the said lineman who had snapped the telephone connection. Hence, he preferred a complaint to the telephone exchange. 4(2) In the Officer they assured to get the repair done by the very next day. But has assured no one turned up on 27.6.1996. So he (P.W.2) went to the telephone exchange once again on 28.6.1996 and met the lineman, the accused Sanjeevi, in the telephone exchange and when he enquired about the disconnection of his telephone line without giving notice, the accused replied that the telephone is under repair and to set right the telephone he demanded Rs.300/- to be paid by way of bribe and that he further informed P.W.2 to wait at office between 1.00 pm to 2.00 pm. P.W.2 would further depose that he has no intention to give any bribe amount. Hence he decided to prefer a complaint to the Vigilance and Ante Corruption Department. 4(3) As decided on 28.6.1996 at about 10.30 am he went to CBI office and preferred Ex.B.3-complaint with the Superintendent of Police. Immediately the Superintendent of Police entrusted the work to the Inspector of Police, Sunil (P.W.4) who took him (P.w.2) to his office room and informed at about 11.00 am that his (P.w.2) complaint has been registered. P.W.4 called two independent witnesses viz. Venkatakrishnan from New India Assurance Company and Devanathan and he also sent word to Thiru.Ramasamy, Salam, Ponnazhagan, Natarajan and Head Constable Chandrasekaran and then he introduced him (P.W.2) to those persons and vice-versa, and they ascertained from him(P.W.2) the fact of demand and receipt of bribe. For that he replied in the affirmative. They went through the complaint-Ex.P.3 preferred by him and they prepared solution by dissolving sodium Carbonate in the water which was a colourless solution. They asked Venkatakrishnan of Insurance Company to dip his hand in the said solution and when he did so there was no change occurred in the solution. 4(4) The Inspector Sunil asked him (P.W.2) whether he is having the decoy amount to be given as a bribe to the accused. P.W.2 informed that he is having three 100 rupee notes and handed over them to Sunil (P.W.4). Thereafter, Sunil (P.w.4) applied a chemical power by name Phenolphthalein on those three 100 rupees notes and asked Venkatakrishnan to handle the said notes. Afterwards he asked Venkatakrishan to dip his hand in the said Sodium Carbonate solution, when he did so the solution became pink in colour. Thereafter, the Inspector of Police Sunil gave those currency notes (three 100 rupees notes) and place the same into his (P.W.2) pocket and requested him not to touch the same and he further instructed to take out the said currency notes only if the accused demands the bribe amount. The numbers of the currency notes were also noted down by P.W.4 and P.W.4 has also prepared a mahazar https://hcservices.ecourts.gov.in/hcservices/ for what had transpired on the said date and obtained the signature from all those present there. Ex.P.4 is the said mahazar and he (P.W.2) has signed in each and every page of Ex.P.4 and that all the persons have cleared their hands with water. 4(5) After keeping the phenolphthalein away, Sunil (P.W.4) has further instructed Devanathan to be present along with P.W.2 and at the time of meeting the accused soon after the accused receives the bribe amount Devanathan was instructed to give signal by wiping his face with hand kerchief. After taking Sodium Carbonate powder and a glass tumbler and solution materials in a suitcase, they left the CBI office at 12.15 noon directly to his (P.W.2) office at No.49, 2nd street, Pudupet, Chennai, and they reached the office at 12.40 pm. He (P.W.2) and other witness Devanathan got down infront of his office and the remaining persons viz. Salam, Ponnazhagan were standing on the opposite side of the road and DSP Ramasamy, the Inspector of Police Sunil (P.W.4), Head Constable Chandrasekaran, Venkatakrishnan were standing in the second floor watching the incident. At about 1.40 pm the accused Sanjeevi along with two persons with telephone materials came to his (P.W.2) office and when he asked to set right the disconnection of the telephone pat came the reply from the accused that he had already set right the disconnection and asked from him (P.W.2) to check the working condition of his telephone. P.W.2 dailed his telephone and found working. 4(6)Thereafter the accused Sanjeevi asked the bribe amount and when he (P.W.2) tender the bribe amount the accused received the same with the person who accompanied him and handedover the same to him but the person, who accompanied him refused to receive the said amount. Then the accused Sanjeevi received the said bribe amount and put into his shirt pocket. Immediately Devanathan who was standing along with him (P.w.2) made signal by wiping his face with the hand kerchief. Immediately police squad waiting in the second floor came down and caught hold of the accused. 4(7) The Inspector Sunil asked the accused whether he had received any illegal gratification from him (P.W.2). The accused enquired Sunil whom they are? After explaining the accused that they belonging to CBI department, they took Sanjeevi inside the room Sanjeevi informed the police that he had put the bribe amount into his shirt pocket. Immediately constable by name Kabilan prepared sodium Carbonate solution in a glass tumbler. Sanjeevi was asked to dip his right hand into the solution when he did so the colour of the solution turned into pink. Another solution in another tumbler was prepared and the accused Sanjeevi was asked to dip his left hand when the accused dip his left hand into the solution there was no colour change occurred. The bottles containing the solution were collected in a separate bottle and sealed. The pink colour solution was marked as 'A' and colourless solution was marked as 'B'. The Inspector of Police Sunil asked Sanjeevi to take out the bribe amount from his shirt pocket and to handover the same to https://hcservices.ecourts.gov.in/hcservices/ Venkatakrishnan. Accordingly the accused Sanjeevi took out the bribe amount and handed it over. 4(8) The Inspector of Police CBI compared the currency notes numbers in Ex.P.4 with that of the currency notes numbers found in the currency notes tendered by the accused and found both the currency notes numbers tally with each other and after recovering the shirt from the accused the shirt pocket was dipped in the sodium carbonate solution which turned pink in colour. The said solution was also taken out in a separate bottle and sealed. It was marked as 'C' and the shirt of the accused was packed and sealed and assigned letter 'D'. 4(9) P.W.2 would further depose that M.O.1 is the bottle 'A' containing the pink colour solution. M.O.2 is the bottle 'B' containing the colourless solution. M.O.3 is the bottle 'C' containing the pink colour solution in which the shirt pocket was dipped. The Inspector of Police has prepared Ex.P.5-mahazar for what transpired in the office. M.O.4 is the recovered shirt from the accused. P.W.2 has also identified M.O.5 notes to that he handedover the same to the accused after verifying the numbers in the currency notes. 5. 5(1) P.W.3-Devanathan has also corroborated the evidence of P.W.2. P.W.3 is the Assistant Manager of the New India Assurance Company. He would depose that during 1996 he was working in the regional office and on 28.6.1996 vigilance officer of the New India Assurance Company, asked him (P.w.3) to meet the Inspector Sunil at CBI Office at Shasthri Bhavan and he has further asked him (P.W.3) to take co-employee Thiru.Venkatakrishnan along with him and accordingly he went to Shasthri Bhavan and met the Inspector Sunil, where Sunil(P.W.4) introduced one Gnanasekaran (P.W.2) and showed the complaint preferred by P.W.2 wherein Gnanasekaran has complained about the demand of bribe of Rs.300/- by the accused and that the said demand of bribe was to set right the disconnection of telephone connection. 5(2) The Inspector Sunil had informed him about the importance of sodium carbonate solution and also about the phenolpthalein test. The Inspector Sunil asked P.W.2 to show the three 100 rupees notes proposed to be handed over to the accused and request Venkatakrishnan to note down the three currency notes' numbers. Venkatakrishnan had noted down the currency notes' numbers and the same was also entered in the mahazar. Afterwards in a glass tumbler he(Sunil-P.W.4) dissolved sodium carbonate powder and prepared a colourless solution and asked Venkatakrishnan to dip his finger into the solution and even after Venkatakrishan has dipped his finger into solution there was no change of colour in the solution. 5(3) Thereafter, the Inspector Sunil placed phenolpthalein powder on the surface of the three 100 rupees notes and asked Venkatakrishnan to touch those notes. After Venkatakrishan touched https://hcservices.ecourts.gov.in/hcservices/ the notes he was asked to dip his finger in the said sodium carbonate solution which, on doing so turned pink in colour. The Inspector Sunil placed the three 100 rupees notes into the shirt pocket of Gnanasekaran and also instructed Gnanasekaran and other witnesses not to touch those three 100 rupees notes till they were handedover to the accused Sanjeevi and further the Inspector of Police has also checked the shirt pocket of his (P.W.3) and the shirt pocket of Gnanasekaran. The Inspector Sunil has asked P.W.3 to accompany P.W.2 to his office. 5(4) Before leaving the CBI office both Venkatakrishnan and Sunil washed their hands and phenolphthalein bottles were supplied by the CBI office and that all proceeded to the office of Gnanasekaran (P.W.2) and the Inspector of Police also informed him that after Sanjeevi receiving the bribe amount signal must be given by wiping the face with a kerchief. Ex.P.4 is the mahazar in which the currency notes' numbers have been noted. In Ex.P.4, he (P.W.3) Venkatakrishnan, Gnanasekaran, Sunil (P.W.4) have signed. DSP Ramasamy, Venkatakrishan and another were waiting in the upstairs portion of the house of Gnanasekaran. Infront of the office of P.W.2 on the road, Salam and another person were waiting. P.W.3 and Gnanasekaran were waiting in the office of Gnanasekaran and about 1.30 pm the accused Sanjeevi came to the P.W.2's office along with two other persons and they asked P.W.2 to check whether the telephone is working. Accordingly P.W.2 dialed his telephone and found his telephone working. Thereafter the accused Sanjeevi demanded P.W.2 to pay the bribe amount of Rs.300/-. Gnanasekaran (P.W.2) took out Rs.300/- from his pocket and handover the same to Sanjeevi. But Sanjeevi asked the other person to share the same but the said person hesitated to receive the said amount. Immediately Sanjeevi himself had received the amount and put the same into his shirt pocket. Immediately he (P.W.3) as advised earlier, had signaled by way of wiping his face with an hand kerchief. 5(5) Immediately DSP Ramasamy, Venkatakrishnan and another person came from the second floor along with two CBI officials who were standing out side the house on the road. P.W.4- Sunil asked the accused where he has received any amount and he replied in the affirmative. At that time the accused was strictly pattered and was shivering. The accused was taken to a room where the Inspector Sunil directed the constable to prepare sodium carbonate solution and accused to dip his hand in the said solution. As per the instruction, the accused dipped his right hand in the said solution, which turned into pink in colour. Sanjeevi was asked to dip his left hand in the another sodium carbonate solution. But when the accused dipped his left hand in the solution there was no colour change occurred. The said sodium carbonate was marked with letter 'B' . 5(6) Thereafter, the Inspector Sunil seized three 100 rupees notes from the accused and he has also campared the currency notes' numbers in the currency notes seized from the accused with https://hcservices.ecourts.gov.in/hcservices/ the currency notes' number in the mahazar and found both the numbers tally with each other. The shirt of the accused was also seized by the Inspector Sunil. The Inspector Sunil asked the CBI constable Kabilan to prepare another sodium carbonate solution and dipped the right hand shirt pocket of the accused. Immediately the sodium carbonate solution turned pink in colour. The said solution was also collected in a bottle and sealed and letter 'D' was assigned to it. He has also signed in the seizure mahazar-Ex.P.5 along with other witnesses. Afterwards, the Inspector Sunil has also enquired the person who accompanied Sanjeevi, who in turn reveal his identity as William Gaurdian working in telephone department as class IV employee and that other person who accompanied the accused is Duraisamy and he is also working as a class IV employee in the telephone department. The Inspector Sunil has verified the identity cards of William and Duraisamy and ascertained the same. Both those persons were having telephone instrument and wire with them. The accused Sanjeevi was brought out side on bail on personal bond. M.O.1 to M.O.3 are bottles marked as 'A', 'B', & 'C'. William is the person who refused to receive the money on behalf of the accused Sanjeevi. 6. 6(1) P.W.4-Sunil is the Inspector of Police. He would depose that from 26.12.1994 he is working as the Inspector of Police, CBI ACB, Chennai, and on 28.6.1996 at around 1.30 am the Superintendent of Police called him to her chamber and endorsed the complaint-Ex.P.3 to her for taking necessary action. The Superintendent of Police introduced the complainant Gnanasekaran to him (P.w.4). P.W.4 took the complaint along with the complainant to the I.O's hall and after going through the complaint, he made some verifications about the antecedents of the complainant and the accused Sanjeevi. In the complaint, it was mentioned that Sanjeevi, lineman demanded an amount of Rs.300/- as bribe for restoring the connection for telephone indicator No.8547095. After ascertaining that P.W.2-Gnanasekarn will co-operate with the CBI team for laying a trap on Sanjeevi while demanding and accepting the bribe amount of Rs.300/-, at about 11.00 am he registered a case in R.C.No.35(A)/96 against Sanjeevi, lineman under Section 7 of the Prevention of Corruption Act. FIR is Ex.P.6. In the mean while, P.W.4 had arranged two independent witnesses from New India Assurance Company, Chennai. 6(2) At around 11.30 am the CBI officials Shri Ramasamy DSP, Shri Natarajan, Inpsector, K.A.A.Zalam, Inspector, Shir Ponnalagan SI, the complainant Gnanasekaran, the two independent witnesses Devanathan, and Venkata Krishnan and himself (P.W.4) assembled at the I.O's hall. P.W.4 introduced the complainant to the other members and vice versa. P.w.4 also explained the reason for assembling and also show the complaint of shri Gnanasekaran to the team members. The independent witnesses sought some clarifications from the complainant and they were also satisfied https://hcservices.ecourts.gov.in/hcservices/ about the genuineness of the complaint. P.W.4 conducted the phenolphthalein sodium carbonate demonstration. P.W.4 directed the constable to prepare a fresh solution of sodium carbonate in a glass tumbler. He asked Venkatakrishna, independent witness to dip his fingers into the said sodium carbonate solution. The solution remained colourless. Then P.W.4 asked Gnanasekaran to produce the amount of Rs.300/- which is to be handed over to Sanjeevi as bribe. P.W.2 produced the amount in the denomination of Rs.100/- each. P.W.4 smeared the currency notes with phenolphthalein power and then directed Venkatakrishnan to handle the notes. 6(3) After handling the currency notes, he asked Venkatakrishnan to dip his fingers in the said sodium carbonate solution. When he did so the colurless solution turned into pink colour. Then he explained the importance of sodium carbonate phenolphthalein test to the team members that the phenolphthalein powder on contact with the sodium carbonate solution will give out a pink colour. After the demonstration was over he (P.W.4) asked Devanatham to accompany Gnanasekaran as an accompanying witness and over-hear the conversation which is to take place betweenm Gnanasekaran and Sanjeevi accused. P.w.4 also kept the phenolphthalein tainted currency notes in the shirt pocket of Gnanasekaran and directed not to touch the currency notes unless it was demanded by Sanjeevi acused. Gnanasekaran was physically searched by P.w.4 and he was found in possession of one American Library card and Rs.17/- in his possession. Devanathan accompanying witness was also subjected to physical check up. 6(4) After the proceedings have completed P.W.4 directed Devanthan to give a signal by wiping his face with his hand kerchief after the demand and acceptance of money by Sanjeevi is over. With this direction, the proceedings were concluded and then the entrustment mahazar was prepared by the CBI office in which all the team members put their signatures. The proceedings concluded at 12.10 pm. After that the CBI team proceeded to the trap spot. The entrustment mahazar is Ex.P.4, which was prepared in the Shastri Bhavan office. At around 12.15 pm, the trap team proceeded to the trap spot at N.49, Second street, Pudupet. At around 12.40 pm, they reached the trap spot. Gnanasekaran and Devanathan accompanied witness waited at the ground floor of the hall. P.W.4 along with the DSP Ramasamy, Inspector Natarajan and another independent witness Venkatakrishnan waited at the staircase leading to the 2nd floor. Inspector, K.A.A.Zalam and SI Ponnalagan took position at the street opposite to the building. 6(5) At around 1.40 pm they saw three persons entering the building. Immediately after that Devanathan accompanying witness showed the pre-arranged signal by wiping his face with this hand kerchief. After receiving the signal all rushed to the spot and saw three persons leaving the premises. Gnanasekaran identified Sajeevi, the accused. P.W.4 asked Sanjeevi, the accused, whether he received Rs.300/- as bribe from Gnanasekaran. Sanjeevi became https://hcservices.ecourts.gov.in/hcservices/ nervous and answered in the affirmative. Then Sanjeevi was arrested. 6(6) P.W.4 directed Kabilan, the Constable, to prepare a sodium carbonate solution in a glass tumbler and it was prepared. P.W.4 directed the accused Sanjeevi to dip his right hand fingers into the said solution, when he did so the colourless solution turned into pink colour. The solution was preserved in a clean bottle and closed and sealed and marked as 'A'. A white sheet was pasted on the bottle in which both the independent witnesses affixed their signatures. Then P.W.4 directed the constable Kabilan to prepare another fresh solution of sodium carbonate in another glass tumbler. P.W.4 directed the accused Sanjeevi to dip his left hand fingers into the said solution. Even after dipping, the solution remained colourless. This solution was also preserved in another clean glass bottle and closed, sealed and marked as 'B'. On this bottle also a white paper was pasted in which both the independent witnesses affixed their signatures. 6(7) Thereafter, P.W.4 directed the accused Sanjeevi to hand over the bribe amount of Rs.300/-, which he received from Gnanasekaran. The accused Sanjeevi handed over the money to Venkatakrishnan independent witness. The independent witnesses verified the serial numbers of the currency notes with that of the numbers mentioned in the entrustment mahazar. They found them tallied. Then P.W.4 directed the accused Sanjeevi to remove his shirt and the shirt pocket was also subjected to sodium carbonate test by dipping the shirt pocket in a freshly prepared sodium carbonate solution. The resultant pink coloured solution was preserved in another clean bottle and closed and sealed and marked as 'C'. The independent witnesses affixed their signatures in this bottle also. 6(8) The accused Sanjeevi was also physically searched by P.W.4 and he was found in possession of one computer slip, one identity card, one pay slip for February 1996 and currency notes of Rs.220/-. The computer slip and the pay slip were seized by P.W.4 and the remaining