BAIL SLIP CRL. A.195/2001 The Appellant / Accused namely K.M.Ramalingam was directed to be released on bail by order of this Court dated 12.3.01 in Crl.MP.1524/01. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10.07.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.195 of 2001 K.M.Ramalingam ..Appellant/accused Versus State represented by The Deputy Superintendent of Police Vigilence and Anti Corruption Cuddalore ..Respondent/complainant Criminal Appeal filed against the Judgment, conviction and sentence made in Special Case No.1 of 2000 dated 23.02.2001, on the file of the Special Judge/Additional District and Sessions Judge-cum- Chief Judicial Magistrate, Cuddalore. For Appellant : Mr.S.Ashok Kumar Senior Counsel For Respondent : Mr.N.Kumanan Government Advocate (Criminal side) JUDGMENT The appellant herein stands convicted by the Chief Judicial Magistrate, Special Judge, Cuddalore in Special Case No.1 of 2000 for offences under Section 7 and 12(2) r/w 13(d) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- and in default to undergo rigorous imprisonment for six months for the offence under Section 7 of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- and in default to undergo six months rigorous imprisonment for the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 13(2) r/w Sec.13 (1)(d) of the Prevention of Corruption Act(Act 49 of 1988) and the sentences are ordered to run concurrently. 2. The case of the prosecution, in brief, is that P.W.1 Thangaraj who is the resident of M.Pudhur was owning a land of six acres and doing agriculture by having a motor pump set. In the year 1998, he had applied for Electricity connection for the pump set in the S.No.44/14 and Ex.P.1 is the application. On 04.12.1998, he received a letter Ex.P.2 from Divisional Engineer's Office that he must register his readiness within 90 days by producing the records. Then he went to the Office of the Electricity Board at Nallur and met one Murugesan and informed him that he wanted the Electricity connection to the land at Service Connection No.44/7 instead of No.44/14. The said Murugesan informed him about the records which are wanted and he made a note of it in Ex.P.3. Therefore, he went to the Village Administrative Officer and received all necessary documents for that land and then he met the Murugesan and also accused, Junior Engineer Ramalingam. Then he was informed that to get the service connection for S.No.44/7, he has to give a fresh application along with certificate given by the Village Administrative Officer. Ex.P.10 is the fresh application given by him. He was informed by the accused- Junior Engineer and also by Murugesan that they have to visit the land. After visiting and inspecting the land, they informed that though there was a borewell in S.No.44/14, S.No.44/7, it is necessary. Thereafter for four or five days, he dig the bore-well for a depth of 45 feet, and on 24.12.1998, he went and met the accused. P.W.11 Narayanasamy also accompanied him. P.W.1 informed the accused about the bore-well at S.No.44/7 and asked him to visit the field. The accused informed him that he must give an application to the Divisional Engineer's Office. Then application Ex.P.11 was prepared by one Pachamuthu being dictated by the accused and the accused signed in the application and handed over to the accused. As the accused wanted a sum of Rs.50/- to be paid as the fees P.W.1 paid the amount to the accused in turn the accused called the wiremen Sivalingam and handed over it to him. He issued Ex.P.12, receipt. On 25.12.1998, the accused and the Murugesan came in a Motorcycle to inspect the land and then after inspecting the land, the accused asked him to come to his house on the next day. on 26.12.1998 at about 7.00a.m, P.W.1 went to the house of the accused along with P.W.11. P.W.1 wanted him to register for the service connection. At that time, the accused demanded a sum of Rs.2000/- for registering for the service connection No.44/7. The accused also informed P.W.1 to meet him only at his residence either before 8.00a.m., or after 7.00p.m. As P.W.1 had no money, he had to borrow money as loan. On 29.12.1998, he went to the vigilance office at Cuddalore at 4.00p.m. and gave complaint to the Inspector https://hcservices.ecourts.gov.in/hcservices/ of Police and Ex.P.15 is the complaint. Then P.W.10, Inspector of Police registered the case in Crime No.12/AC/98/CL and Ex.P.47 is the First Information Report. Then P.W.10 arranged for the witnesses. P.W.3 and another person came there and they were introduced to P.W.1. They were all explained about the Phenolphthalein test. The phenolphthalein currency notes were handed over to P.W.1. P.W.3 was also instructed to accompany P.W.1 and watch the transaction. P.W.1 was also instructed to give signal after paying the amount on demand. The entrustment mahazar Ex.P.16 was prepared on 29.12.1998. P.W.1 stayed in the office of P.W.10. On the next day, i.e., on 30.12.1998 at 6.30a.m., P.Ws.1,3,10 and others went to the house of the accused. At that time, three more persons were standing outside the house of the accused. At about 8.00a.m., P.Ws.1 and 3 went inside the house of the accused. The accused was writing something else and he asked P.W.1 whether he brought the money. As P.W.1 said that he had brought the money, the accused demanded the money to be paid and P.W.1 gave M.O.1 series Rs.2000/- and the accused receiving the money in his hand, kept it inside a book which was on the sofa. Then P.W.1 came out of the house and gave the prearranged signal by wearing the towel around the head as a turban. Then immediately P.W.10 and others rushed to the house of the accused. P.W.10 introduced himself and others. P.W.1 was sent out side. Sodium Cabonate solution was prepared. The accused was asked to dip his right hand finger and it turned pink. As the accused was questioned with regard to the money, he handed over the money taking out from the book M.O.4. The other documents were seized by P.W.10. The recovery mahazar also was prepared. The accused also signed after received a copy of the recovery mahazar. The house of the accused was searched. Subsequently the investigation was handed over to P.W.12, Deputy Superintendent of Police. P.W.12 examined the witnesses and on completing the investigation, laid the final report. 3. In order to prove the case, prosecution has examined 12 witnesses, marked 32 exhibits and produced five material objects. When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating materials available against him, he denied the complicity. 4. The accused had stated that he was not present on 25.12.1998 in his house. As he refused to register the readiness without the Survey number being changed, P.W.1 was enimical towards him and he had further stated that the money was thrusted in his hand and as he prevented it, the money was scattered on the ground. 5. On the side of the defence, the accused also examined two witnesses. D.W.1 who is also an agriculturist, had stated that the accused and the said Murugesan came and inspected the land of P.W.1. https://hcservices.ecourts.gov.in/hcservices/ D.W.2 who is the Junior Engineer at Veppur Power Station, had stated that on 26.12.1998, the Chief Engineer visited their Office and the accused was present on that day from 7.00a.m., to 5.45p.m., at Veppur Power Station. The trial Court after considering the evidence convicted the accused. 6. The learned Senior Counsel Mr.S.Ashok Kumar submitted that P.W.1 tried to hoodwink the appellant by showing the Survey Field No.44/7 of that village as Survey No.44/14 and pestered the appellant to register the readiness, but as the accused advised P.W.1 to comply all the necessary requirements of sinking the bore-well in S.No.44/7 and to submit a fresh application and thereby P.W.1 who had to incur more expenditure was infuriated and therefore wanted to take revenge on the accused and therefore given a false complaint against the accused. The learned Senior Counsel further submitted that the demand said to have been made by the accused himself is false, since the accused was present at Veppur power station from 7.00a.m to 5.45p.m., as per the evidence of D.W.2. As per the evidence of P.W.4 the Executive Engineer that the readiness certificate for the Survey No.44/7 could be issued only after it was verified by P.W.4 and the process had to be done. The fact of registering readiness was not at all necessary as per the evidence of P.W.4 and therefore, the alleged demand by the accused is only false. 7. The learned Senior Counsel further submitted that the explanation given by the accused for the Phenolphthalein test which answered positively that P.W.1 had thrusted the money in the hands of the accused and as it was prevented, the currency notes fell on the ground and subsequently the money had been placed in the book by P.W.1 is probable in the circumstances of the case. 8. The learned Senior Counsel vehemently contended that the sanction accorded by P.W.2 is invalid and P.W.2 was incompetent authority to grant sanction. P.W.2 is only Superintending Engineer and it was only the Chief Executive Engineer who had appointed the accused for the post. He had also submitted that though the prosecution relied on Ex.P.13, according to which the Superintending Engineer can appoint the Junior Engineer, the accused was appointed only by the Chief Engineer and he also relied on the copy of the Government Order which was filed along with an application by the appellant for taking additional evidence, numbered as Crl.M.P.No.48 of 2008. As the accused being appointed by the Chief Engineer, as per Article 311 of the Constitution of India, only the appointing authority is the removing authority and as such, he only can grant sanction. He also submitted that as the sanction is invalid in this case, taking cognizance of the case itself affected and the trial is vitiated and on that score alone, the accused has to be acquitted. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned Senior Counsel also placed reliance on the following decisions: a. (2006) 3 SCC (Crl.) 577 (K.Devassia v. State of Kerala), b. (2004) SCC (Crl.) 1176 (P.A.Mohandas v. State of Kerala) c. (2004) SCC (Crl.) 1213 (Manoranjan Prasad Choudhary v. State of Bihar) d. 2005 SCC (Crl.) 1995 (State of Goa v. Babu Thomas) e. 2006(1) SCC (Crl.) 47 (State of Karnataka v. C.Nagarajaswamy) f. 2006 Crl.L.J 4598 (Inspector of Police, Visakhapatnam v. Surya Sankararam Karri) 10. The learned Government Advocate submitted that as per the evidence of P.W.1, though the readiness has to be registered for the S.No.44/14, as P.W.1 wanted that to be changed to S.No.44/7, he had approached the accused and the accused also collected a sum of Rs.50/- and issued certificate and also he inspected the field. Only in that process, he had demanded the bribe amount. The earlier demand is also corroborated by P.W.11 and the demand on the date of trap is also corroborated by the evidence of P.W.3. The acceptance of the money by the accused is proved by the phenolphthalein test. The learned Government Advocate further submitted that the version of the defence that P.W.1 thrusted the money in the hands of the accused is highly improbable, since after conducting the phenolphthalein test, P.W.1 took the money from the book M.O.4 and handed it over to the Officer. 11. The learned Government Advocate further submitted that as per Ex.P.13 sanction granted is valid and also submitted even otherwise as per Section 19(3)(a) Cr.P.C unless a prejudice is shown, it would not affect the prosecution case. He also relied on the decision of the Honourable Supreme Court reported in 1999 SCC (Crl.) 1494 (Central Bureau of Investigation v. State of Haryana) and 2004 SCC (Crl.) 2140 (State by Police Inspector v. T.Venkatesh Murthy) 12. This Court considered the submissions made by both parties and perused the records. 13. As per the charge against the accused, the demand was made by the accused only in respect of giving service connection to S.No.44/7. As per the evidence of P.W.1, though originally he had applied for service connection in S.No.44/14 and readiness of P.W.1 had to be registered, at that stage, P.W.1 wanted the service connection in S.No.44/7. It appears from the materials available from the prosecution case if the same seniority has to be maintained, the Survey number has to be changed. Of course, as per the evidence of P.W.4, the Executive Engineer, the application has to be forwarded only from the Junior Engineer through the Assistant Engineer to him https://hcservices.ecourts.gov.in/hcservices/ and prior to forwarding it, it must be inspected as to whether there is a bore-well in the said land. It is possible to change the survey number in the records registered already. Ex.P.10, the application for electricity connection to S.No.44/7, dated 23.11.1998 had been given to the accused and the other connected necessary documents were also made ready by P.W.1. A sum of Rs.50/- also had been paid by P.W.1 on 24.12.1998, for which Ex.P.12 receipt had been issued by the accused. The accused also visited the land on 25.12.1998. In the mean time, another bore-well was made ready in S.No.44/7. P.W.1 had also taken all steps that were required for change of service connection from 44/14 to 44/7. Only at this stage, it is said that the accused made his demand of Rs.2000/- as bribe on 26.12.1998. While so, it cannot be said that the accused made P.W.1 to spend more money and delayed the process, he was infuriated and annoyed. From these facts, it is not possible to hold P.W.1 was motivated to give a false complaint against the accused. Further P.W.4, the Executive Engineer is the authority to pass the order for changing the Survey number, but it has to be processed only by the accused. In fact after the arrest of the accused, the application Ex.P.10 and Ex.P.11 were recommended by the Junior Engineer who took charge subsequently and the order was passed by P.W.4 on 30.01.1999. About the demand made by the accused on 26.12.1998, it is also spoken by P.W.11 who had accompanied P.W.1. The evidence of P.W.11 could not be shattered by the defence in the cross examination. P.W.11 is not related to P.W.1 and he had no animosity against the accused. Though the evidence of D.W.2 is to the effect that the accused was available with him at Veppur Power Station from 7.00a.m to 5.45p.m., no record is produced to that effect. The distance between the house of the accused and Veppur Power Station is not known. According to P.W.7, the time of visit was at 7.00a.m., and according to P.W.11, it was at 8.00a.m. D.W.2 had admitted in the cross examination that the accused used to come to the Office daily only after 8.30a.m., but he had come on that day early as there was an inspection. On the whole, the evidence of D.W.2 does not inspire the confidence of this Court. Therefore, with regard to the demand made by the accused for the bribe amount, the evidence of P.W.1 is corroborated by the evidence of P.W.11. 14. With regard to the occurrence on the date of trap, P.W.1 had stated that as he entered into the house of the accused, he demanded the money and he paid it. The accused receiving it kept in a book M.O.4. This evidence is also corroborated by the evidence of independent witness P.W.3 who had accompanied P.W.1. The phenolphthalein test being conducted, it proved positive as the solution turned pink. But the accused had given a different version stating that P.W.1 had thrusted the money in his hands and he had thrown the currency notes away. But P.W.1 picked them up and kept in the book. Though a suggestion is put to that effect to P.W.1, it had been denied by him. https://hcservices.ecourts.gov.in/hcservices/ 15. While questioning the accused under Section 313 Cr.P.C., the accused had only stated that the money was thrusted in his hand and as he prevented it, the currency scattered on the ground, but he had not stated that P.W.1 picked up those currency notes and kept it in the book. Admittedly the currency notes were available in the book, when the trap laying officer entered the house. According to the learned Government Advocate, that the accused was not wearing shirt and was only with bunion and as such he could not keep the money in the pocket and he kept it in the book after receiving it. This Court finds that the version of the accused is highly improbable and it is not supported by any material. As the acceptance of the amount by the accused is proved by the prosecution, the presumption under Section 20 of the Prevention of Corruption Act comes into effect. The accused had been unable to rebut the presumption with any materials. 16. With regard to the next contention of the appellant that Ex.P.17 sanction to prosecute has not been given by the competent authority. It is to be seen whether P.W.2 who is the Superintending Engineer is competent person to give sanction Ex.P.17. P.W.2 had stated that he has got power to appoint and remove the Junior Engineers. As per Ex.P.30, the amendment made on 01.08.1998, the Superintending Engineer is the appointing authority for Junior Engineer I-Grade also. On the basis of Ex.P.30, the prosecution has been under the impression that P.W.2 has power to remove the accused and he has granted sanction Ex.P.17. At the same time, in the order copy served to the accused, the accused who was Junior Engineer of II-Grade was selected for promotion as Junior Engineer of the I-Grade on temporary basis by the Chief Executive Engineer. The copy of it is filed along with an application under Section 391 Cr.P.C to take further evidence. Though this Court is not allowing the application in Crl.M.P.No.48 of 2008, to take additional evidence, this court perused the coy of the order. 17. Article 311 of the Constitution of India, reads as follows: "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. [(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. https://hcservices.ecourts.gov.in/hcservices/ [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.: Provided further that this clause shall not apply-] (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President of the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]" 18. As per Article 311 of the Constitution of India, only the appointing authority is competent authority to remove him from the office. Accepting for a moment, the Chief Engineer is the appointing authority and as competent authority to remove the accused from the office, whether the sanction granted by P.W.2, the Superintending Engineer would affect the prosecution case and whether it would vitiate the trial is the point for determination. 19. Section 19(3)(a) of the Prevention of Corruption Act is as follows: "19.Previous sanction necessary for prosecution: (1)....... (2)...... (3)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section(1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;........................" https://hcservices.ecourts.gov.in/hcservices/ Admittedly, this defence had not shown any prejudice being caused to the accused as sanction being granted by P.W.2, so as to conclude that failure of justice has been occasioned. 20. In the decision of the Honourable Supreme Court in P.A.Mohandas v. State of Kerala reported in (2004 SCC (Crl) 1176), it has been held as follows: "3........ The sanction in the present case was given prior to the aforesaid date. The date on which the sanction appears to have been given, the authority concerned had no jurisdiction and, therefore, there is an embargo on the court's power to take cognizance for non- compliance of Section 19 of the Act. We accordingly quash the proceeding. 4. The appeals stand disposed of accordingly." 21. In Manoranjan Prasad Choudhary v. State of Bihar (2004 SCC (Crl.) 1213), it has been held "since there is no sanction of the competent authority, the proceedings is vitiated. We accordingly set aside the impugned order and quash the proceedings. Needless to mention, if appropriate sanction is received from the competent authority, the matter can be proceeded against. The SLP stands disposed of accordingly." 22. In the decision of the Honourable Supreme Court in State of Goa vs. Babu Thomas (2005 SCC (Cri.) 1995), wherein it has been held as follows: "11. ................... According to the counsel for the appellant no failure of justice has occasioned merely because there was an error, omission or irregularity in the sanction required because evidence is yet to start and in that view the High Court has not considered this aspect of the matter and it is a fit case to intervene by this Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission in the order of sanction as required under sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction as stated in clauses (a),(b) and (c). 12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction https://hcservices.ecourts.gov.in/hcservices/ order dated 02.01.1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 07.09.1997 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f.14-09-1994, which is bad. The cognizance was taken by the Special Judge on 29.05.1995. Therefore, when the Special Judge took cognizance on 29.05.1995, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the