BAIL SLIP The Appellant/Accused in each of the appeals were directed to be released on bail in and by the order of this court dated 24.10.97 in Crl MP 5502 and 5503/97. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.Nos.770, 771 and 779 of 1997 Crl.A.No.770 of 1997 N.Gunasekaran ... Appellant/Accused No.2 Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent/Complainant Crime No.2/93/AC/CB This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.M.Venkateswaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) Crl.A.No.771 of 1997 P.A.Krishnan Kutti ... Appellant/Accused No.3 Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent/Complainant Crime No.2/93/AC/CB https://hcservices.ecourts.gov.in/hcservices/ This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.M.Venkateswaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) Crl.A.No.779 of 1997 Mahalingam (died) M.P.Mani ... Appellant(LR of the Appellant) (Amended as per order of court dated 20.02.2007 made in Crl.M.P.No.143/2007) Vs. State by Inspector of Police Vigilance and Anti-corruption Dept., Coimbatore ... Respondent/Complainant Coimbatore District. This Criminal is filed under Section 374(2) of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.5/1994 dated 22.09.1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.D.Shivakumaran For Respondent : Mr.R.Muniapparaj Government Advocate (Crl.Side) COMMON JUDGMENT The accused Nos.1 and 2 in Special C.C.No.5/1994 on the file of the I Additional District and Sessions Judge cum Chief Judicial Magistrate, Coimbatore, who were prosecuted, found guilty and convicted for offences punishable under Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985 and punished with rigorous imprisonment for a period of one year and a fine of Rs.1,000/- with a default sentence of two months rigorous imprisonment in respect of each one of the charges, have come forward with the criminal appeal Nos.779/1997 and 770/1997 respectively, challenging the conviction and sentence. Similarly, the third accused in the above said Special C.C., who was prosecuted for offences punishable under Section 12 of the https://hcservices.ecourts.gov.in/hcservices/ Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985, convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- with a default sentence of rigorous imprisonment, in case of default in payment of fine, has brought-forth C.A.No.771/1997 challenging his conviction and the sentence imposed by the trial court. 2. The prosecution case, in brief, can be stated as follows:- i) P.W.1 - Ramaraj started producing mineral water at Coimbatore to be marketed in the name of Aqua Valley Pure Mineral Water by mixing minerals with siruvani water. For the said purpose, he got the property bearing door No.19, Thendral Nagar, Veerakeralam for rent from one Ambujammal in the month of January 1993. He installed machines for cleaning the bottles to be used in the mineral water business. He had also applied to the Sales Tax department for manufacturing and marketing mineral water. Meanwhile, public in Coimbatore conducted a protest rally against another mineral water manufacturer in Coimbatore. Therefore, P.W.1 dropped his idea of manufacturing mineral water at Coimbatore and decided to have the manufacturing plant at Kottathurai in Solaiyur panchayat in Kerala state. Thereafter, the building bearing door No.19, Thendral Nagar, Veerakeralam was proposed to be used for stocking the mineral water bottles. He was supplied with 8,000 PVC bottles by P.V.C Plast Limited, Ahmedabad on 30.07.1993. As a bad odour emanated from the bottles, P.W.1 started the work of cleaning the bottles on 01.08.1993 by engaging eight women from the area. Four days thereafter, he made 500 to 600 bottles to be filled up with siruvani water to find whether any such bad odour emanated. ii) On 06.08.1993 at about 11.00 a.m, the first accused and about ten persons employed in his office (Veerakeralam Panchayat) went to the above said address, seized 400 bottles filled with siruvani water and 2000 empty bottles on the premise that complaints were received by the Collector to the effect that mineral water was being manufactured in the said premises without proper permit or license and that as per the Collector's instructions, he conducted an inspection and found the same to be true. Not accepting the contention of P.W.1 that he was not manufacturing mineral water in the said address and that he was manufacturing mineral water only in Kerala, the said articles were seized by the first accused. In addition to that the drinking water connection given to the said building was also disconnected. The building was also sealed. iii) Thereafter, P.W.1 - Ramaraj and his friend Sundarasamy (P.W.3) met the first accused at about 3.00 p.m on 06.08.1993 and explained that P.W.1 was not manufacturing mineral water in the said place. The first accused demanded a sum of Rs.15,000/- for returning the articles seized from the above said premises. The first accused also informed P.W.1 that in case a sum of Rs.15,000/- was paid to him he would get permission/license to manufacture https://hcservices.ecourts.gov.in/hcservices/ mineral water in the above said address itself. He also promised to return the photographs taken at the time of raid, if his demand for payment of Rs.15,000/- was met with. Again on 09.08.1993, P.W.1 met the first accused and informed him that he could not afford to pay a sum of Rs.15,000/-, pursuant to which the first accused reduced his demand by Rs.2,000/- and demanded payment of Rs.13,000/-. The first accused also caused a threat to P.W.1 that he could not do his business without paying the amount demanded by him as bribe. Thereafter, the first accused enquired P.W.1 whether he had brought money, which was answered in the negative. Then the first accused compelled P.W.1 to give two cheques (marked as M.Os.1 and 2) without naming the payee for a sum of Rs.3,000/- and Rs.2,000/- respectively. The first accused then asked P.W.1 to make the payment of Rs.13,000/- at the residence of the third accused Krishnan- Kutti before 10.00 p.m on 13.08.1993. The first accused also informed P.W.1 that the first and second accused would come to the residence of the third accused Krishnan Kutti to receive the said amount and that they would return the cheques and the seized bottles etc., on payment of the above said amount by P.W.1. iv) As P.W.1 did not have ready cash, at his request, P.W.3- Sundarasamy arranged the said amount to be paid to the first accused. After arranging the said amount, P.W.1 engaged a lorry to bring the seized bottles. Thereafter, P.W.1 had a second thought, as a result of which, he lodged a complaint under Ex.P2 to the Inspector of Police, Vigilance and Anticorruption wing, Coimbatore at about 5.30 p.m on 13.08.1993. P.W.18 - K.K.Krishnan, the then Inspector of Police, Vigilance and Anticorruption wing, Coimbatore prepared Ex.P3 - First Information Report and registered a case in Cr.No.2/93/AC/CB. Thereafter P.W.1 was asked to leave the Vigilance and Anticorruption office and come back at 7.00 p.m. When P.W.1 went there at 7.00 p.m along with a sum of Rs.13,000/-, P.W.18 - Inspector of Police, Vigilance and Anti-corruption had invited Raveendran (P.W.2) and one Kannan to be the witnesses. In the presence of the said witnesses a demonstration was made as to how phenolphthalein test is conducted in trap cases. The amount brought by P.W.1 consisted of 130 notes of 100 rupees denomination. P.W.18 - Inspector of Police caused the said currency notes coated with phenolphthalein powder after noting the serial numbers of the currency notes in Ex.P4 - Mahazar prepared in the office of P.W.18, bundled into two bundles (one consisting of 100 notes and other consisting of 30 notes) and re-entrusted the same to P.W.1 with instructions to give the same to the first accused Mahalingam only if he demanded it. Thereafter, the lorry engaged by P.W.1 was also brought to the office of the Vigilance and Anticorruption wing. P.W.2 - Raveendran was asked to accompany P.W.1 and note the happenings. All of them along with the police party, then went to P.W.1's godown at Thendral Nagar. After reaching the said place, P.Ws.1 and 2 alone were directed to go to the residence of the third accused Krishnan-Kutti. When they went to the residence of Krishnan-Kutti, there was drizzling. The son of A3 (Krishnan- Kutti) welcomed them and informed them that his father wanted them to wait for his arrival. Within 10 minutes thereafter, the third accused Krishnan Kutti came there. As he was wet with rain water, https://hcservices.ecourts.gov.in/hcservices/ he went inside to change his clothes. A3 informed him that A1 would not come as it was raining and A2-Gunasekaran alone would come with the cheques and keys and that P.W.1 could get the cheques from A2 on making payment of a sum of Rs.13,000/-, whereupon the second accused would break the seal and open the door of the go- down enabling (P.W.1) to take his articles. For a query made by A3, P.W.1 informed him that Reveenderan was a manager in his company manufacturing mineral water in Kerala. v) As it was still raining, A3 sent an auto to bring A2. Ten minutes later, A2 - Gunasekaran came there in the auto. On his arrival, A2 asked P.W.1 to make payment of Rs.13,000/- and take all the articles in the lorry except a few bottles and the sterilizing machine to be kept in a room. At that juncture, P.W.1 reminded him that earlier he was informed he could take all the goods after making such payment. At that juncture A2 said that he was acting on the instructions given to him and if at all P.W.1 wanted any change, then he should meet A1 and discuss the same with him. Thereafter, P.W.1 along with P.W.2-Raveendran, A2 - Gunasekaran and A3 - Krishnan Kutti proceeded in the very same auto to the residence of the first accused. The police party also followed them as per the signal given by P.W.1. At about 12.00 midnight, P.W.1, P.W.2 - Raveendran along with the second and third accused reached the house of A1. Though the second accused alone went inside the house, came out and informed that P.W.1 alone was asked to come inside, P.W.1 and P.W.2 Raveenderan went inside. A2 - Gunasekaran and A3 - Krishnan Kutti also entered the house. P.W.2 - Raveendran was introduced as the Manager of Kottathurai Mineral Water Company. When the first accused asked P.W.1 whether he had brought the money, he took out the two bundles of cash coated with phenolphthalein powder, one containing Rs.10,000/- and the other containing Rs.3,000/-, and handed them over to the first accused. First accused received the same using both hands, kept the bundle containing Rs.10,000/- for himself, handed over the other bundle containing Rs.3,000/- to A2-Gunasekaran and informed P.W.1 that he could take all items of property seized. However, he informed A2 - Gunasekaran to hand over photographs and the cheque for the sum of Rs.3,000/- alone along with all other articles and retain the cheque for the sum of Rs.2,000/- alone. vi) At that juncture P.W.1, in the pretext of answering natural's call, went out and gave a signal to the police as per the pre-arrangement by lighting the torch light he had kept in his scooter. Thereafter, P.W.18-the Inspector of Police rushed into the house of A1, conducted phenolphthalein test for the hands of A1 and A2, recovered the amount paid as bribe, namely M.O.6 series and arrested Accused 1 to 3. The Sodium Carbonate solution used for conducting phenolphthalein test and the control Sodium Carbonate solution were also packed and sealed separately. Later on they were sent to the forensic lab for chemical examination. On analysis in the forensic lab, all those solutions used for phenolphthalein test for the fingers of the Accused 1 and 2 were found to contain phenolphthalein and the control Sodium Carbonate solution did not contain phenolphthalein. After the successful https://hcservices.ecourts.gov.in/hcservices/ conduct of the trap operation, the investigation of the case was conducted by P.W.19 - Jayapandian, another inspector of police, Vigilance and Anti-Corruption. P.W.19 examined and recorded the statements of witnesses, obtained sanction order under Ex.P7 from P.W.5 - Hansraj Varma, I.A.S., the then Director of Town Panchayat, Madras for prosecuting the accused persons and submitted a final report accusing Accused 1 and 2 for offences punishable under Sections 7 of the Prevention of Corruption Act, 1985 and Section 13 (2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985 and accused No.3 for offences punishable under Sections 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985. 3. On appearance of the appellants/accused 1 to 3 before the trial court, they pleaded innocence. Charges were framed by the trial court for offences punishable under Sections 7 of the Prevention of Corruption Act, 1985 and Section 13(2) r/w Section 13 (1)(d) of the Prevention of Corruption Act, 1985 against A1 and A2 and against A3 for offences punishable under Sections 12 of the Prevention of Corruption Act, 1989 r/w Section 109 Cr.P.C and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1985. The appellants/Accused 1 to 3 denied the said charges, pleaded not guilty and wanted the case to be tried. 4. In order to substantiate the prosecution case, prosecution examined P.Ws.1 to 19 and marked 26 documents as Exs.P1 to P26 and produced 15 material objects as M.Os.1 to 15. After recording of evidence on the side of the prosecution was over, the accused persons were questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. Each one of the accused denied them as false and once again all the three accused persons reiterated their stand that they were innocent and that the case was foisted by P.W.1. Accused 1 to 3 have also filed individual written statements. On their side, no witnesses was examined and no document was marked. 5. The trial judge heard the arguments advanced on either side, considered the evidence brought before him in this case in the light of the points urged in such arguments and upon such consideration, came to the conclusion that the prosecution proved the charges beyond reasonable doubt, convicted the accused and imposed sentence, as cited supra, in the judgment of the trial court dated 22.09.1997. 6. Aggrieved by the same and challenging the conviction recorded and the sentence imposed in the judgment dated 22.09.1997, the appellants have preferred these appeals on various grounds set out in the appeal petitions. 7. The point that arises for consideration in this appeal is as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the judgment of the trial court convicting and sentencing the appellants for the offences under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 r/w 109 Cr.P.C suffer from any defect or illegality, capable of being interfered with in exercise of the appellate powers of this court?" 8. Advancing arguments on behalf of the appellants, Mr.M.Venkateshwaran, learned counsel for the appellants/Accused 2 and 3 and by Mr.D.Shivakumaran, learned counsel for the appellant/Accused 1 submitted that the judgment of conviction and the sentence imposed on all the appellants were against weight of evidence, unsustainable in law and liable to be reversed by this court in exercise of its appellate powers. The learned counsel for the appellants contended further that there were many improbabilities and imponderables, which had not been considered by the court below; that the court below would have held that none of the charges framed against the appellants stood proved, had it properly considered the in-built contradictions and improbabilities found in the evidence of the prosecution; that all the witnesses including the police officers who conducted the trap operation and the police officer who investigated the case, were not disinterested independent witnesses and obviously they were biased; that the court below failed to note the very fact that the appellant in Crl.A.No.779/1997 (first accused) was sought to be disturbed at midnight, that too when there was heavy rain pour; that the court below failed to consider the explanation offered by the appellants/accused in its proper perspective and that the court below failed to notice the improbability of the prosecution story in taking a lorry to the Vigilance and Anti-corruption office at the first instance, then to the residence of the third accused and then to the residence of the first accused and that every aspect of the prosecution case regarding the trap operation was a stage- managed show. 9. The learned counsel for the appellants contended further that P.W.1 - the de-facto complainant was very much known for his indulgence in unlawful activities which was admitted by him during cross-examination; that P.W.1 who was running a mineral water manufacturing unit, without proper license, was using siruvani water supplied for domestic drinking purpose; that the court below failed to properly appreciate the fact that the bottles and machines used for that purpose were seized by the first accused along with the sterilizing machine in exercise of the powers conferred on him and a report of the same had been sent to the Collector for further action; that the court below failed to notice the fact that after such a report was sent to the District Collector, the Executive Officer of Veerakeralam Town Panchayat could not release the same without the orders of the Collector and hence the same would improbablise the case of P.W.1 that A1 demanded a sum of Rs.15,000/- at the first instance and then reduced the demand to Rs.13,000/- for releasing the articles seized https://hcservices.ecourts.gov.in/hcservices/ and for removing the seal affixed to the premises at No.19, Thendral Nagar, Veerakeralam, which was used by P.W.1 as a manufacturing unit for the production of mineral water; that the court below failed to note the untenability of the contention of P.W.1 that he had proposed to manufacture mineral water in Kerala state and to use the premises at door No.19, Thendral Nagar as a godown for stocking the bottles and cleaning the bottles for being used in the mineral water business; that the court below failed to notice the intelligent improvement and embellishment made by P.W.1 to show that he was making arrangements for setting up a manufacturing unit in Kerala state and he was using the premises bearing door No.19, Thendral Nagar, Veerakeralam only as a godown for stocking the empty bottles and as a washing unit meant for cleaning the bottles to be used as containers for his mineral water business; that the court below failed to note a vital contradiction in the evidence of P.W.1, as to where from he took the torch light to give signal to the police; that the fact that there was no explanation as to how the scooter which had been parked near the house of A3 came to the place near the house of A1 to enable P.W.1 to take out the torch light from the scooter and give signal to the police officers, was not properly appreciated by the court below and that had the court below bestowed its attention to the above said improbabilities and contradictions, it would have held that none of the charges against the accused was proved beyond reasonable doubt and acquitted all of them. 10. The learned counsel for the appellants contended further that, viewed from any angle, the conviction of the appellants for the respective offences with which they stood charged and the punishment imposed for the said offences could not be sustained in law and that the appellants were entitled to be acquitted giving the benefit of doubt, as there were reasonable doubts in the prosecution case regarding the offences allegedly committed by the appellants. It is also the contention of the learned counsel for the appellants that the property sealed by the first accused was opened after removing the seals and possession was handed over to P.W.1 by the Investigating Officer himself, without even getting the orders of the Collector and that is why the Investigating Officer had not produced the order of the Collector at the first instance; that even the order directing the release of the goods, removal of the seal and handing over of the property to P.W.1 was subsequently created and produced as Ex.P26 and that the same is obvious from the absence of signature of the Collector in it and the office note containing the signature of the Collector was also not produced. 11. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl.Side) in answer to the above said contention of the learned counsel for the appellants were also heard. The entire evidence, both oral and documentary, and other material records were also perused and this court paid its anxious considerations to the same. https://hcservices.ecourts.gov.in/hcservices/ 12. Mr.Mahalingam, appellant in C.A.No.779/1997 (first accused) was the Executive Officer of Veerakeralam Town Panchayat and hence admittedly he was a public servant. Mr.N.Gunasekaran, the appellant in C.A.No.770/1997 (second accused) was a clerk employed in the office of the Veerakeralam Town Panchayat and hence it is also not in dispute that he was a public servant as on the date of the alleged occurrence. So far as Krishnan Kutti, appellant in C.A.No.771/1997 is concerned, admittedly he is not a public servant. He has been prosecuted for an offence punishable under Section 12 of the Prevention of Corruption Act, 1985 as he abetted the commission of an offence punishable under section 7 of the said Act by the accused 1 and 2. He is also said to have committed the offence punishable under Section 13(2) read with Section 13(1)(d) read with Section 109 IPC. The charge framed against him is reproduced for better appreciation. " 3k; vjphpahfpa ePh; 13-14/8/93e; njjp 12/15 kzpf;F ck;kpy; 1tJ vjphpapd; tPl;oy; itj;J ck;kpy; 1. 2 vjphpfs; bghJ CHpah;fshf ,Ue;J CHy; jLg;g [ rl;lk; gphpt[ 7 kw;Wk; 13(2) c-, 13(1)(o)d; fPH; jz;of;fj;jf;fJkhd Fw;w';fisr; bra;tjw;F. 3tJ vjphpahfpa ePh; cle;ijahf ,Ue;jjhft[k;. mth;fSf;F ntz;Lbkd;nw cjtp bra;Jk;. mt;tifapy; 3tJ vjphpahfpa ePh; 1988k; Mz;L CHy; jLg;g[r; rl;lk; gphpt[ 12 cldpide;j ,/j/r/ gphpt[ 109 c-, CHy; jLg;g [ rl;lk; 13(2) c-,/13(1)(o) go jz;of;fj;jf;fJk;. ,e;ePjpkd;wj;jhy; tprhhpf;fj;jf;fJkhd Fw;wbkhd;iwr; bra;Js;sPh;/" 13. It is an admitted case of both the prosecution as well as the appellants that on 06.08.1993, the appellant in C.A.No.779/1997 (first accused), who was the then Executive Officer of Veerakeralam Town Panchayat, conducted a search in the premises bearing door No.19, Thendral Nagar, Veerakeralam on information that the said building was used as a manufacturing unit to manufacture mineral water from siruvani water supplied by the Town Panchayat for domestic use and hundreds of bottles filled with siruvani water and several empty bottles along with the sterilizing machine used for washing the bottles were seized. It is also admitted that due to the said violation, the water supply to the building was disconnected and the building was sealed pending further proceedings. Under such circumstances alone, P.W.1 claims to have approached the first accused for the release of the goods seized and for removing the seal put to the premises, whereupon the first accused allegedly demanded a sum of Rs.15,000/- at the first instance and then reduced the demand to Rs.13,000/-. 14. Three persons, namely Mahalingam, Gunasekaran and Krishnan Kutti were jointly prosecuted in Spl.C.C.No.5/1994 dated 22.09.1997 on the file of the learned I Additional Sessions Judge- cum-Chief Judicial Magistrate, Coimbatore and the trial resulted in their conviction for the offences with which they stood charged. Mahalingam (A1) was prosecuted for offences punishable under Section 7