IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:18.12.2007 Coram THE HONOURABLE MR. JUSTICE K.N.BASHA CRIMINAL APPEAL Nos. 240 and 241 of 2001 Mohammed Ali ... Appellant ..vs.. State represented by Inspector of Police, Vigilance & Anti-Corruption, Salem. (Crime No.15/AC/91/Spl.) ...Respondent CRIMINAL APPEAL No. 241 of 2001 K. Manickam ... Appellant -Vs.- State represented by Deputy Superintendent of Police, Vigilance & Anti-Corruption, Salem. (Crime No.15/AC/91/Spl.) ...Respondent Appeals against the judgment dated 28.02.2001 made in Special C.C.No.68 of 1992 on the file of the Special Judge and I Additional Sessions Judge -cum- Chief Judicial Magistrate, Salem. For Appellant in Crl.A.No.240 of 2001 : Mr. V. Gopinath, Senior Counsel for M/s. L. Mahendran For Appellant in Crl.A.No.241 of 2001 : Mr.S.Ashok Kumar,Senior Counsel For Respondent in both appeals : Mr. R. Muniappa Raj, Government Advocate (criminal side) ------- J U D G M E N T A1 and A2 are the appellants who have come forward with these appeals challenging their conviction and sentence passed by the learned Special Judge and I Additional Sessions Judge cum Chief Judicial Magistrate, in Spl.C.C.No.68 of 1992 convicting the Appellant in Crl.A.No.240 of 2001/first accused under section 7 of the Prevention of Corruption Act and sentencing him to undergo six months Rigorous Imprisonment and also to pay a fine of Rs.500/- carrying with default sentence of one month Rigorous Imprisonment, convicting under section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and sentencing him to undergo one year Rigorous Imprisonment and imposing a fine of Rs.1000/- and carrying with default sentence of two months Rigorous Imprisonment and convicting the Appellant in Crl.A.No.241 of 2001 / second accused for the offence under section 12 read with section 7 of the Prevention of Corruption Act and sentencing him to undergo six months Rigorous Imprisonment and also imposed with a fine of Rs.500/- and carrying with default sentence of one month Rigorous Imprisonment and convicting under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and sentencing him to undergo one year Rigorous Imprisonment and imposing a fine of Rs.1000/- in default to undergo two months Rigorous Imprisonment. 2. The facts of the case as projected by the prosecution are as follows: A1 was working as Village Administrative Officer and A2 is the Village Menial in Kondappanaickenpatty Village. PW.2 is the president of the same village. PW.2 inherited the property of his father after his death, along with her mother and sister and patta also changed in their name and also obtained pumpset connection. During the lifetime, PW.2's father obtained a loan from Salem Agricultural Co-operative Bank for the purpose of laying underground water tank. After the death of his father the said loan was settled, but the original documents were not returned from the Bank. Om 30.01.1991 PW.2 along with his mother and sister gave a petition for the return of the said original documents. After six months, PW.5 being Officer came to the house of PW.2 and enquired about the details. PW.2 requested him to get fresh loan for the purchase of goat. For that purpose PW.5 asked him to get revenue records in respect of the property namely Chitta, Adangal, Rough sketch and settlement deed etc. Thereafter PW.2 met A1, Village Administrative Officer on 24.08.1991 at 9.30 a.m in his office and requested him to furnish the revenue records in respect of their land namely Chitta, Adangal, Rough sketch and settlement deed etc,. A1 said to have demanded Rs.60/- for that purpose. PW.2 expressed his inability and difficulty. A1 instructed PW.2 to bring the said amount on 27.08.1991. 3. PW.2 again met PW.5, the bank officer, at 11.00 a.m. PW.5 instructed him to get the said documents once again and also handed over a printed form for that purpose in a cover. PW.2 informed his mother about the information given by the PW.5 seeking documents and as well as about the meeting with A1. PW.2 was not inclined to give the bribe amount and as such he has decided to give a report to the Vigilance Police and accordingly he went to the Vigilance Office at 7.00 a.m on 27.08.1991 and gave a report Ex.P2 to PW.11, the Inspector of Police. 4. PW.11 on receipt of the report Ex.P2 from PW.2 registered the case in Crime No. 15/AC/91/Special under section 7 of the Prevention of Corruption Act. He has sent the FIR to the higher Officials and to the Court. Thereafter enquired PW.2 about the conversation took place between himself and A1. PW.11 also arranged a trap by summoning two witnesses namely PW.3 and another and thereafter explained the case to PW.2 and another and demonstrated Phenolphthalein test to P.Ws.2, 3 and other witnesses. PW.11 also, after demonstration of Phenolphthalein Test, instructed PW.2 to meet the accused in the office along with PW.3, the trap witness and further instructed him to give a signal by folding his shirt sleeves after handing over the amount. PW.11 prepared a Mahazar in respect of the proceedings under Ex.P4. 5. At 10.05 a.m, PW.11 along with his raiding party including P.Ws.2,3 and others to Kondappanaickenpatty Village and reached the said village at 10.30 a.m. Thereafter PW.11 instructed PW.2 to go to A1's office along with PW.3. The raiding party were waiting near the office of A1 in the main road at the bus stop. 6. PW.2 along with PW.3 entered inside the office of A1 at 10.45 a.m. A1 was sitting inside the office room and A2, Village Menial was also present. A1 questioned PW.2 whether he has obtained documents. PW.2 asked A1 whether he had kept the documents ready. PW.2 also handed over the form to A1. A1 after verifying the same, returned it to PW.2. A1 also asked about PW.3 and PW.2 informed him that he is working in the filed of Kumaresan Chettiar and for the purpose of going to the bank he has brought him. A1 got up from his sheet and came out of the office and asked PW.2 and PW.3 also to come along with him. After coming out of the office A1 asked PW.2 where he has brought the money. PW.2 informed A1 that he has brought the amount and thereafter A1 instructed A2 to receive the amount from PW.2 and instructed him to count and keep the amount with him. A2 received the amount and kept in his hand. Thereafter A1 called A2 for taking butter milk and instructed P.Ws. 2 and 3 that they can leave. Immediately P.Ws. 2 and 3 came out of the office and PW.2 gave a pre-arranged signal by folding his shirt sleeves. 7. On receiving the pre-arranged signal, PW.11 along with his raiding party rushed to the office of the accused. PW.3 identified A1 and PW.11 introduced himself to A1. A1 perturbed. Thereafter the raiding party went inside A1's office room. A2 found standing in the office of A1. PW.2 also identified A2 to PW.11 and informed him that A2 received the amount as per the instruction of A1 from PW.2. PW.11 conducted Phenolphthalein test by subjecting the fingers of A2 in the solution and the test proved positive as the solution turned pink. The solutions were taken into two bottles M.Os.5 and 6 and the bottles were sealed. Thereafter Pw.11 questioned A2 about the bribe amount and A2 stated that he has kept the amount in the verandah of nearby house and took the raiding party and produced Rs.60/- from the verandah of the said house. The currency notes were seized by PW.11 and the numbers were compared as already noted in the Mahazar Ex.P4. A2 was again brought back to A1's office. PW.11 enquired A1. He prepared Ex.P13 Mahazar in respect of the trap held at the office of A1. PW.11 recovered Ex.P5 to Ex.P10 namely, chitta, adangal, rough sketch, settlement deed copy and the certificate issued by A1. PW.11 prepared a Mahazar Ex.P11 for the purpose of seizure of the above said documents. Rough Sketch Ex.P14 also prepared in respect of the trap place. PW.11 searched the lodge room of A1, but no incriminating materials recovered. Ex.P15, the land tax receipt book also seized. 8. PW.12, Deputy Superintendent of Police took up further investigation in this case. On 27.08.91 at 4 p.m he enquired A1 and A2 in his office and recorded their statements and thereafter released them on bail. He has also examined P.Ws.2,3,4 and 5 and recorded their statements. He has sent the Material Objects to the Court for chemical examination. On 07.09.1991, he has examined PW.7 and on 10.09.1991, he has examined PW.6 and recorded their statements. After examining and recording the statements of all the witnesses and after receiving the chemical examination report, Ex.P21, PW.12 obtained sanction order under Ex.P1 from PW.1 on 21.02.1992. On 05.03.1992, he has filed the charge sheet against the accused for the offence under sections 7, 13(1), 13(2)(b) read with 13(1)(d) of the Prevention of Corruption Act,1988. 9. Prosecution in order to bring home the charges against the accused, examined P.Ws. 1 to 13, filed Ex.P1 to Ex.P25 besides marking M.Os. 1 to 6. 10. When the accused were questioned under section 313 of Cr.P.C in respect of the incriminating materials appearing against them, both the accused denied each and every circumstances as false and contrary to the facts and stated that they have been falsely implicated in the case. Defence examined two witnesses namely D.Ws.1 and 2. 11. Mr.V.Gopinath, learned senior counsel appearing for the first accused vehemently contended that the prosecution has miserably failed to prove the demand of bribe said to have been made by A1. It is submitted that PW.2 has come forward with a motivated complaint Ex.P2 and a false case was foisted against A1 at the instance of PW.2, as he was in inimical terms with A1. It is pointed out by the learned senior counsel that PW.2 categorically stated even in his chief examination that prior to the trap, while he was taking the stones from the land of his uncle PW.6, A1 intervened and questioned him as to how he can taken the stones without obtaining permission and for that he replied that he was taking stones only from his uncle's land. It is also further pointed out that PW.6 also categorically admitted in his cross examination that a month prior to the occurrence namely the trap, PW.2 informed him that A1 has questioned his conduct of taking the stones. Therefore, it is submitted that PW.2 is on inimical terms with A1 and as such the false implication of A1 cannot be ruled out. Learned Senior Counsel would further contend that PW.2 has stated that on 24.08.1991 while he met A1 at his office, A1 said to have been demanded Rs.60/- for the purpose of furnishing revenue records namely chitta, adangal, settlement deed copy etc. But this version of PW.2 is not corroborated by any other witness. It is also contended by the learned senior counsel that even the alleged demand said to have been made by A1 is also not corroborated by PW.3, the trap witness as PW.3 has not stated about the demand of bribe made by A1 at the time of trap during the course of his examination by the police, as admitted by PW.12. It is contended that once the prosecution version relating to the demand is not proved, then the question of implicating A1 not at all arises, as the admitted version of the prosecution case is A1 demanded and thereafter instructed A2 to receive the bribe amount from PW.2. Therefore, it is submitted by the learned senior counsel that in view of not proving the essential ingredient in respect of a corruption case namely the demand, the entire prosecution case would collapse. 12. Mr.S.Ashok kumar, learned senior counsel appearing for A2 would contend that as per the categorical admission of PW.2 and PW.3, A2 has absolutely no knowledge of the alleged demand of bribe said to have been made by A1 and even according to the prosecution case that he has received the bribe amount only as per the instruction of A1 and as such he cannot be held liable for any offence as alleged against him. It is submitted that PW.2 has categorically admitted in his cross examination that A2 was sitting outside at a distance of 20 feet away from A1's office under a tree and A2 was totally unaware about the transaction took place between himself and A1. It is also pointed out that PW.2 further categorically admitted while he entered office of A1 along with PW.3, A2 was present but subsequently left from the room within two minutes and thereafter he was inside the office of A1 for 15 minutes and A2 is totally unaware about the said transaction and A2 never demanded any bribe amount and he has totally no knowledge about the demand of bribe made by A1. PW.2 has categorically admitted in his cross examination that during the first meeting of A1 on 24.08.1991 A2 was sitting outside the office of A1 and he has totally unaware of the transaction took place between himself and A1 and again on the date of trap i.e., on 27.08.1991 though A2 was present while he went inside the office of A1 and he left within two minutes and he has totally unaware of the alleged demand of bribe made by A1. It is further submitted that PW.2 specifically admitted in his cross examination that even he has not informed A2 about the bribe amount and no one informed him. Learned senior counsel would also pointed out that even the independent witness namely PW.3 has categorically stated in his cross examination that A2 is totally unaware about the discussion and transaction took place between PW.2 and A1, and A2 never demanded any bribe amount and he has received the said amount only as per the instruction of A1. It is also pointed out that PW.3 has specifically admitted in his cross examination that A2 is also not aware or having knowledge about the bribe amount and he is not obtained any advantage or benefit inspite of the receipt of the amount. Therefore it is submitted by the learned Senior Counsel that A2 cannot fastened with any liability for the alleged demand of bribe amount as per the categorical version of PW.2 and PW.3. 13. Per contra, Mr.Muniappa Raj, learned Government Advocate (Crl.Side) contended that the prosecution has come forward with a clear and cogent evidence through P.Ws.2,3,11 and 12. It is submitted that the prosecution has proved its case in respect of demand as PW.2 has categorically stated that A1 demanded the bribe amount of Rs.60/- during the first meeting of PW.2 on 24.08.1991. It is also further submitted that the version of PW.2 in respect of the demand is also corroborated by the evidence of PW.3, the trap witness as he has also stated during the evidence that at the time of trap A1 demanded the bribe amount and as such the prosecution has proved its case in respect of demand. Learned Government Advocate would further contend that even in respect of receipt and recovery of the bribe amount the prosecution has proved its case through the evidence of P.Ws.3 and 11 as both of them categorically stated that as identified by PW.3, PW.11 questioned A2 and ultimately recovered the bribe amount of Rs.60/- at the instance of A2 from the verandah of nearby house. It is submitted that there is no infirmity in the evidence adduced by the prosecution through P.Ws.2 , 3 and 11 as there is no contradiction in their evidence. It is submitted that the prosecution proved its case in all aspects beyond reasonable doubts. 14. I have carefully considered the rival contentions put forth by either side and thoroughly scrutinized the entire materials available on record and the impugned Judgment of conviction. 15. The prosecution heavily placed reliance on the evidence of P.Ws.2,3 and 11. PW.2 is the complainant, PW.3 is the trap witness and PW.11 is the Inspector of Police, who has conducted trap. At the time of occurrence, A1 was working as Village Administrative Officer and A2 was working as Village Menial working under A1, The sum and substance of the prosecution case is to the effect that PW.2, with a view to obtain loan for the purchase of goat, approached A1 Village Administrative Officer for furnishing the revenue records in respect of his lands namely, Chitta, Adangal, Rough Sketch of the land and copy of the settlement deed and for furnishing those documents A1 is said to have demanded a bribe of Rs.60/-. The demand was said to have been made by A1 on 24.08.1991, at his office at 9.30 a.m. It is the further version of the prosecution that in pursuance of demand said to have been made by A1, a trap was conducted on 27.08.1991 and PW.2 met A1 along with PW.3. A1 said to have been made the demand once again and while PW.2 informed A1 that he is having money and A1 instructed him to hand over the said amount to A2 and accordingly A2 is said to have received bribe amount of Rs.60/- and it is claimed by the prosecution that the said amount was recovered at the instance of A2 and before the recovery, phenolphthalein test also said to have been proved positive. In view of the above facts and circumstances, this Court is left with the consideration of the prosecution case to find out whether the prosecution has proved the first and foremost ingredient to attract the offence under the prevention of Corruption Act namely the demand said to have been made by A1. Let me consider the second portion of the prosecution version relating to the receipt and recovery of the bribe amount after considering the prosecution version in respect of the demand. 16. In order to prove the alleged demand made by A-1, the prosecution heavily placed reliance on the evidence of P.W.2 and P.W.3, the trap witnesses. The case of the prosecution is to the effect that A-1 demanded the bribe amount of Rs.60/- for the purpose of furnishing revenue documents, namely, Chitta, Adangal, Rough Sketch and settlement deed enabling P.W.2 to obtain loan for the purchase of goat. The said demand said to have been made by A-1 on 24.08.1991 at 9.30 a.m. at the office of A-1. The second demand is said to have been made by A-1 at the time of trap, i.e., on 27.08.1991 at the office of A-1 while he met A-1 with P.W.3. It is pertinent to be noted that as far as the first demand said to have been made by A-1, the prosecution is left with the evidence of P.W.2 alone and there is no corroboration for such version of P.W.2. As far as the second demand said to have been made by A-1 at the time of trap, the prosecution placed reliance on the evidence of P.Ws.2 and 3. In order to test the credibility of the evidence of P.W.2, it is to be borne in mind that admittedly there were strained feelings between A-1 and P.W.2 as A-1 said to have objected P.W.2 taking stones from the poramboke land one month prior to the occurrence. P.W.2 also categorically stated even in his chief examination about A-1 questioning his conduct of taking the stones from the poramboke land. P.W.6, the maternal uncle of P.W.2, also admitted in his cross-examination that P.W.2 informed him that he was questioned by A-1 at the time of taking stones from the poramboke land. It is pertinent to be noted that on the date of trap itself, A-1 during his examination stated to him that there was a quarrel between P.W.2 and himself in respect of removing stones from the poramboke land. The conduct of A-1 coming forward with the version of P.W.2 quarreling with him at the earliest point of time, namely, on the date of trap probabilises the defence theory that there were strained feelings between A-1 and P.W.2. Therefore, this Court has to scrutinise the evidence of P.W.2 with great care and caution. 17. As already pointed out, the first demand of bribe was made by A-1 on 24.08.1991 while P.W.2 meet him in his office for getting the revenue documents for the purpose of obtaining goat loan from the bank. It is seen that for the first demand, there is no corroboration for the version of P.W.2. It is unbelievable and improbable for A-1 to demand bribe openly in his office. It is seen that P.W.2 is not able to explain as to why he has not given any report to the higher officials of A-1. Therefore, this Court is of the considered view that it is most unsafe to place reliance on the uncorroborated testimony of P.W.2 in respect of the alleged first demand of bribe made by A-1. 18. As far as the second demand of bribe is concerned, it is the case of the prosecution that A-1 made demand at the time of trap on 27.08.1991 and for the second demand of bribe at the time of trap, the prosecution placed reliance on the evidence of P.Ws.2 and 3. It is pertinent to be noted that P.W.2 has categorically stated that while he entered into the office of A-1 along with P.W.3, A-1 immediately received the form obtained by P.W.2 from P.W.5, the Bank officer, and signed the form and also handed over the other revenue records, namely, chitta, adangal, settlement deed and sketch and at the time A1 admittedly not made any demand at all. It is the version of P.W.2 in the chief examination that thereafter A-1 came out of his office along with P.Ws.2 and 3 and only outside the office of A-1 said to have asked about the amount. P.W.2 further categorically admitted in his cross-examination that A-1 has not demanded any amount right from the preparation of the document and till handing over the documents. In respect of the second demand, P.W.3 also not stated during investigation to the Inspector of Police, P.W.12, that A-1 demanded bribe amount at the time of trap. Therefore, P.W.3's evidence is also unbelievable and unacceptable. In view of the above said reasons, this Court has no hesitation to hold that the prosecution has miserably failed to prove the alleged demand of bribe made by A-1. 19. Let me now consider the prosecution version regarding the alleged receipt of bribe amount by A-2 at the instruction of A-1 and recovery of the said amount by P.W.12, Investigating Officer. 20. At the outset, it is to be stated that even this portion of the prosecution case also surrounded by suspicious circumstances. There are contradictory versions in respect of the recovery of the amount at the instance of A-2. The case of the prosecution is to the effect that A2 produced the bribe amount from the verandah of the house of one Forester Jeganathan. The prosecution has not examined the said Forester Jeganathan. P.W.3 stated that A-2 produced the amount from the Verandah from an aluminium tin, but the said tin was not recovered. On the other hand, it is stated by P.W.11, Inspector of Police, that A-2 produced the amount from the Verandah of that house as the amount was found thrown in between mud pot and aluminium vessel at the backside of the verandah and he has not stated anything about the amount kept in the aluminium tin and therefore, the version of P.W.3 is contradictory to the version of P.W.11. There is also no explanation from the prosecution that as to how A-2 threw away the bribe amount of Rs.60/- at the Verandah of the house of Forester Jeganathan. The Investigating Officer, P.W.11, made a vain attempt to explain to the effect that A-2 after seeing the raiding party went towards right side of the office of the V.A.O. and came again to the office. It is also pertinent to be noted