BAIL SLIP The Appellants namely A.V.Vijayarangan (A1), V.Subramanian (A2) and K.Doraisamy (A3) was directed to released on bail by the order of this Court dt.17.10.02 in Crl.M.P.No.10724 of 2002 in C.A.No.1445 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.11.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1445 of 2002 1.A.V.Vijayarangan 2.V.Subramanian 3.K.Doraisamy ... Appellants Vs. State Rep. by The Inspector of Police Vigilance and Anti-corruption Salem ... Respondent This Criminal Appeal has been filed under Section 374 of Criminal Procedure Code as against the order of conviction and sentence made in Special C.C.No.139/1992 dated 23.09.2002 by the learned I Additional District Judge cum Chief Judicial Magistrate, Salem. For Appellant : Mr.A.Padmanaban For Respondents: Mr.R.Muniapparaj Government Advocate (Crl.Side) J U D G M E N T The accused Nos.1, 2 and 4 in a corruption case, namely Special C.C.No.139/1992 instituted on the file of the Special Judge under the Prevention of Corruption Act, 1988 (I Additional District Judge cum Chief Judicial Magistrate), Salem, who stood charged, tried, found guilty as per the charge for offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- and in default the payment of fine to undergo a further period of two months rigorous imprisonment each under Section 7 of Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default in payment of fine to undergo a further period of two months rigorous imprisonment each under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, have come forward with the present appeal against the conviction and sentence imposed on them. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution, in brief, is as follows:- i) P.W.2-Sekaran was doing business in quarrying limestone and supplying the same to the factories for which he had obtained necessary permit from the concerned authorities. During the relevant point of time A.V.Vijayarangan, the first appellant/first accused was working as Special Tahsildar (Mines) in the office of the Deputy Director, Geology and Mines, Salem. V.Subramanian, the 2nd appellant/2nd accused was working as Special Revenue Inspector (Mines), Sankari. Gunasekaran (since deceased), who figured as the third accused and K.Doraisamy, the fourth accused were working as Assistant and Watchman respectively in the office of the Deputy Director, Geology and Mines, Salem. ii) On 02.09.1989, a lorry bearing Regn.No.TDM 2365 was intercepted by the officials of the Geology and Mines department near Sankari Police Station when the same was found transporting limestone without proper permit and the said lorry with the limestone loaded on it was entrusted to the police in Sankari Police Station for safe custody till necessary orders would be passed by the District Collector. On receiving information regarding the interception and impounding of the lorry, P.W.2- Sekaran met the first appellant/first accused Vijayarangan and the second appellant/second accused Subramanian in the guest house of India Cements Factory, Sankari and pleaded for help to get his lorry released. The first appellant/first accused Vijayarangan, at that point of time demanded a sum of Rs.1,000/- as illegal gratification for getting the release order. The second accused also supported the demand made by the first accused by asking who would help him if he came with bare hands. They asked P.W.2 to come and meet them in the office of the Deputy Director, Geology and Mines, Salem. iii) P.W.2 again went to the office of the Deputy Director, Geology and Mines, Salem whereupon he was asked by the first accused to meet the deceased third accused Gunasekaran. When P.W.2 met Gunasekaran, he demanded a sum of Rs.100/- as illegal gratification for putting up a note for the release order. He also directed P.W.2 to meet the second accused. When P.W.2 met the second accused, he too demanded a sum of Rs.200/- as illegal gratification and also directed P.W.2 to meet the first accused. When P.W.2 again met the first accused and pleaded for the movement of the file, he demanded a sum of Rs.200/- as illegal gratification. iv) Again on 06.09.1989 also P.W.2 met the first and second accused and also the deceased third accused. At that point of time the deceased Gunasekaran (third accused) asked P.W.2 whether he had brought the money to be paid as illegal gratification as he was directed to bring. At that juncture P.W.2 replied that he would make payment as soon as the release order was ready. Again on 08.09.1989, P.W.2 met the deceased Gunasekaran at about 3.00 p.m whereupon he informed P.W.2 that he received a phone call from the camp office of the District Collector to the effect that the file https://hcservices.ecourts.gov.in/hcservices/ was made ready, but the office assistant was not available to bring the file. At that time, the watchman, namely the fourth accused Duraisamy, volunteered to go with P.W.2 to the camp office of the District Collector. At the instructions of Gunasekaran, he went to the camp office of the District Collector along with P.W.2 and brought the file relating to the seizure of the above said lorry to the office of the Deputy Director, Geology and Mines, Salem. iv) Again on 11.09.1989, P.W.2 went to the said office in the hope of getting the release order. When he met the accused 1 to 4, the third accused, namely deceased Gunasekaran demanded a sum of Rs.100/- and the other accused, namely A1, A2 and A4 demanded a sum of Rs.200/- each as illegal gratification. Not willing to pay such illegal gratification, P.W.2 went to the office of the Deputy Superintendent of Police, Vigilance and Anti-Corruption wing, Salem and lodged a complaint in writing under Ex.P2. P.W.14- Thiru.Vellingiri, the then Deputy Superintendent of Police, Vigilance and Anti-Corruption, Salem received the said complaint and registered a case in Cr.No.11/AC/89 on the file of the Deputy Superintendent of Police, Vigilance and Anti-Corruption wing, Salem. Ex.P20 is the First Information Report prepared by P.W.14. P.W.14 arranged for a trap, for which he had invited P.W.2, Mani (P.W.3), Assistant Engineer, O&M., T.N.E.B., Salem and Ganesan to be the witnesses for the same. In their presence he demonstrated how the Phenolphthalein test would be conducted in trap cases. He caused the money brought by P.W.2 to be given as bribe to the accused persons to be coated with phenolphthalein powder and re- entrusted the same to P.W.2 with instructions to give it to the accused persons, if they make a demand. Necessary mahazar was prepared for the said purpose under Ex.P3 in the office of Vigilance and Anti-Corruption, Salem. P.W.3 was asked to accompany P.W.2 to the office of the Deputy Director, Geology and Mines, Salem to watch the happenings there. v) P.W.2 went to the office of the accused persons along with P.W.3 and handed over a sum of Rs.200/- to each one of the accused 1, 2 and 4 and a sum of Rs.100/- to accused No.3/Gunasekaran (deceased) from out of the currency notes coated with phenolphthalein powder, as each one of them demanded payment. Soon after the accused persons received the said amounts as illegal gratification, as per the arrangement, P.W.2 came out and gave a signal to the Vigilance and Anti-corruption officials by changing the wrist watch from the left hand to the right hand. Consequently, P.W.14 and the other members of his team rushed into the office and conducted phenolphthalein test for the hands of the accused persons, which proved positive. The money received by the accused persons as illegal gratification from P.W.2 were also recovered from the accused persons. When the numbers of the currency notes were compared with the numbers noted in the Mahazar prepared in the office of Vigilance and Anti-Corruption wing, Salem, they tallied. Apart from the sum of Rs.700/- recovered from the accused persons, P.W.14 also recovered a sum of Rs.2,290/- under Ex.P6 from the other staff members. Apart from the said amount a sum of Rs.2,001/- which had been dropped through the https://hcservices.ecourts.gov.in/hcservices/ window by some of the persons employed in the said office was also recovered under Ex.P5. Phenolphthalein tests were also conducted for the pockets of the wearing apparels of the accused persons. 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 and for the for the pockets of the wearing apparels of the accused persons were found to contain phenolphthalein and the control Sodium Carbonate solution did not contain phenolphthalein. The Deputy Superintendent of Police, Vigilance and Anti-Corruption wing continued the investigation, examined and recorded the statements of witnesses, obtained sanction order from P.W.1- R.A.Seetharam Das, I.A.S., the then Special Commissioner and Secretary to Government, Revenue Department, Madras for prosecuting the accused persons under Ex.P1 and submitted a final report accusing accused 1, 2 and 4 of offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. 3. On appearance of the appellants herein/accused 1, 2 and 4 before the trial court, they pleaded innocence. Before framing of charges, the third accused, namely Gunasekaran died and the charges framed against the deceased A3 stood abated. Hence charges were framed against A1, A2 and A4 alone by the trial court for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. The appellants herein/accused 1, 2 and 4 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 14 and marked 21 documents as Exs.P1 to P21 and produced 20 material objects as M.Os.1 to 20 on the side of the prosecution. 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 reiterated their stand that they were innocent and that the case was foisted by P.W.2. Each one of the accused 1, 2 and 4 have also filed a written statement. On the side of the accused/appellants herein, two witnesses were examined as D.Ws.1 and 2 and five documents were marked as Exs.D1 to D5. 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. Upon such consideration, came to the conclusion that the prosecution proved the charges beyond reasonable doubt and convicted the accused and imposed sentence, as cited supra in his judgment dated 23.09.2002. 6. Aggrieved by the same and challenging the conviction recorded and the sentence imposed in the judgment dated 23.09.2002, https://hcservices.ecourts.gov.in/hcservices/ the appellants have preferred this appeal on various grounds set out in the appeal petition. 7. The point that arises for consideration in this appeal is as follows:- "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 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.A.Padmanaban, learned counsel submitted that the judgment of the court below was not sustainable in law, as the same was against weight of evidence. It was also contended by the learned counsel for the appellants that many material contradictions found in the evidence of P.W.2, were not adverted to properly by the court below; that the court below failed to note the improvements and embellishments caused by P.W.2 during the course of his evidence over the statements made by him in the complaint and the statements made by him before the Investigating Officer recorded under Section 161 Cr.P.C.; that the prosecution relied on the evidence of P.W.3 alone for corroborating the evidence of P.W.2 regarding preparation of Mahazar in the office of the Vigilance and Anti-Corruption wing and the occurrence in the office of the Deputy Director, Geology and Mines, Salem; that the court below failed to note that there were many imponderables and improbabilities in the story of the prosecution; that the court below failed to properly appreciate the fact that P.W.2, who admittedly suffered heavy loss due to the action taken by the officers of the Geology and Mines department, including the accused persons, on previous occasions, had every reason to concoct a case to wreak vengeance on the accused persons when the lorry engaged by him for transporting limestone without being accompanied by proper document was intercepted and impounded by the accused persons and that the court below would have arrived at a conclusion that the charges levelled against the appellants were not proved beyond reasonable doubt had it appreciated the evidence in proper perspective. 9. The learned counsel for the appellants contended further that fair play required investigation of the case by a different officer than the one who organised and conducted the trap operation; that in this case, P.W.14, who received the complaint and registered the case based on Ex.P2-complaint not only organized and conducted the trap operation but also took the entire investigation of the case and submitted a charge-sheet; that the court below failed to see that P.W.14 was very much interested in P.W.2, which is obvious from the fact that evidence has been led to the effect that during the course of trap operation itself, he collected the release order from the Deputy Director, Geology and Mines and handed over the same to P.W.2 to enable him to get the release of the lorry and that the same would show the bias with https://hcservices.ecourts.gov.in/hcservices/ which he had acted in investigating the case. 10. The learned counsel for the appellants also contended that the evidence of P.W.2 to the effect that he met the first and second accused on 02.09.1989 itself in the guest house of India Cements Factory to make an appeal to them to get the lorry released and that at that point of time, the first accused demanded a sum of Rs.1,000/- as illegal gratification, could not be true in the light of the contradictions elicited with reference to his statement recorded under Section 161 Cr.P.C and in the light of the contradictions between the evidence of P.W.2 and P.W.9 and the evidence of P.W.2 and P.W.13, as to when and from whom the de-facto complainant, namely P.W.2 got the information regarding seizure of the vehicle; that the court below did not properly appreciate the defence plea of the appellants that the de-facto complainant (P.W.2), with a view to wreak vengeance, engineered a device by agreeing to purchase Tuberculosis seals to the tune of Rs.200/- each from A1 and A2 and Rs.100/- from Gunasekaran/A3 with the promise to make payment when he would collect the release order and thereafter approached the Vigilance and Anti-Corruption to get them trapped when the said amount would be paid projecting it to be an illegal gratification; that the court below failed to see that similar method was devised by him against A4 by borrowing a sum of Rs.200/- from him as he was running short of such amount for making payment of the penalty and thereafter made arrangements for his arrest when the same was repaid by him; that the court below failed to note that the defence plea need not be proved beyond reasonable doubt and that it shall be enough to prove the same by preponderance of probabilities; that the court below failed to consider the documentary evidence regarding the entrustment of the job of selling TB seals in proper perspective; that the court below should have arrived at a conclusion that the charges made against the appellants were not proved beyond reasonable doubt and that the trial court ought to have acquitted the accused/appellants herein holding them entitled to the benefit of doubt. According to the contention of the learned counsel for the appellant, the judgment of the court below convicting the appellants for the offence punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 cannot be sustained in law and the appellants are entitled to their acquittal in the hands of the appellate forum. 11. The submissions made by Mr.R.Muniappraj, learned Government Advocate (Crl.Side) representing the respondent in reply to the above said contentions of the learned counsel for the appellant were also heard and this court paid its anxious considerations to the same. The materials on record, including the evidence, were also taken into consideration by this court. 12. The case of the prosecution is that the appellants, who figured as A1, A2 and A4 and one Gunasekaran, the deceased third accused demanded illegal gratification for expediting the issue of the release order directing the release of the lorry bearing Regn.No.TDM 2365, which had been detained at Sankari police station https://hcservices.ecourts.gov.in/hcservices/ when it was found used for transporting limestone without valid permit and subsequently received such illegal gratification from the de-facto complainant, namely P.W.2-Sekaran. Admittedly, the lorry bearing Regn.No.TDM 2365 was intercepted by the officials of Geology and Mines department on 02.09.1989 at about 3.30 p.m near Sankari Police Station, as it was used for transporting limestone without valid permit and the same was handed over to the police in Sankari Police Station for safe custody till necessary orders would be passed by the District Collector. It is the admitted case of the prosecution that the said lorry was used for transporting limestone from the quarry of P.W.2. The despatch slip and Proforma invoice used by the lorry driver for transporting limestone have been produced and marked as Exs.D1 and D2 on the side of the accused. Though the vehicle number has been noted in the said documents, the date and time of despatch have not been noted therein. That is the reason why the vehicle was intercepted and impounded by the officials of the Geology and Mines department. 13. The appellants/accused 1, 2 and 4 are alleged to have committed the offence of taking gratification other than legal remuneration in respect of an official act punishable under Section 7 of the Prevention of Corruption Act, 1988. The alleged act amounting to the said offence is the receipt of a sum of Rs.200/- by each one of the appellants/A1, A2 and A4 on 11.09.1989 for expediting the issue of release order directing the release of the lorry impounded by the officials of Geology and Mines department for transporting limestone without valid permit on 02.09.1989. For the very same act, the appellants have been convicted and punished not only for the offence under Section 7 of the Prevention of Corruption Act, 1988 but also an offence under Section 13(2) r/w Section 13(1)(d) of the above said Act. 14. The charge No.1 framed as the sole charge at the first instance was to the effect that each one of the appellants demanded a sum of Rs.200/- on 08.09.1989 as gratification other than legal remuneration as a reward for expediting the issue of release order directing the release of the lorry bearing Regn.No.TDM 2365, which had been detained at Sankari police station by the second appellant and others on 02.09.1989 for having transported limestone without valid permit and that they received the said amount as illegal gratification from the de-facto complainant, namely P.W.2-Sekaran, between 3.05 p.m and 3.30 p.m on 11.09.1989 in the office of the Deputy Director, Geology and Mines, Salem. The second charge, namely the charge framed as an additional charge on 16.10.2000 is to the effect that the above said act of receiving illegal gratification also amounted to an offence punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The first charge contains two components:- 1) an attempt made to receive illegal gratification by demanding payment of Rs.200/- on 08.09.1989 from P.W.2 by each one of the appellants and 2) the receipt of a sum of Rs.200/- on 11.09.1989 between 3.05 and 3.30 p.m at the office of the Deputy Director, Geology and Mines, Salem, as a reward for expediting the issue of release order. The second charge comprises the second component of first charge alone. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the prosecution case regarding the alleged attempt made to get illegal gratification on 08.09.1989 and the receipt of illegal gratification on 11.09.1989 have to be dealt with with reference to the evidence adduced regarding both the aspects. 15. Ex.P2 is the original complaint lodged by P.W.2 on 11.09.1989 based on which Ex.P20-First Information Report was prepared by P.W.14 and the case was registered. The contents of the complaint are to the effect that the lorry bearing Regn. No.TDM 2365 was seized by A1 and A2 when the lorry was found used for transporting limestone with defective permit and they had entrusted the same to the police at Sankari police station on 02.09.1989; that the appellants 1 and 2 demanded a sum of Rs.1,000/- as illegal gratification for not registering a case against the driver; that when he expressed his inability to pay such amount, they registered a case against the driver of the said lorry; that the District Collector passed an order imposing a penalty of Rs.1,395/-; that on 08.09.1989 at the office of the Deputy Director, Geology and Mines, Salem, the appellants 1 and 2 informed him that they would get the release order directing the release of the lorry, if he would pay the fine and produce the challan; that at the same time each one of the appellants 1 to 3 demanded a sum of Rs.200/- as illegal gratification; that the deceased third accused (Gunasekaran) demanded a sum of Rs.100/- for himself; that on 11.09.1989 when he produced the challan evidencing payment of fine after remitting the same in the State Bank of India; that the appellants and the deceased third accused again insisted upon complying with their demands in the evening of 11.09.1989 and that not willing to part with money as illegal gratification to the appellants and the deceased third accused, he approached the Vigilance and Anti- corruption police with a complaint for necessary action. Though there was a general allegation that the appellants 1 and 2 demanded a sum of Rs.1,000/- as illegal gratification for not registering a case against the driver of the lorry, the complaint is silent about the date and time of such demand and the place at which such demand was made. However, during the course of trial P.W.2 seems to have made a lot of improvements over the particulars furnished in the complaint and also his statement recorded by the Investigating Officer under Section 161 Cr.P.C. Of course, the complaint or the first information report prepared in the printed format could not be expected to be an encyclopedia of the case. However, material omissions in the complaint do have their effect on the prosecution case when acceptable explanations are not forthcoming. If it is a mere omission in the first information report alone, then much importance need not be shown to such omission. On the other hand, if such omission is also found in the statement of the concerned witness recorded under section 161 of Cr.P.C, then the omission becomes all the more important. P.W.2, while deposing before the court, he ventured to state that on 02.09.1989 itself at about 5.30 p.m he met the appellants 1 and 2 in the India Cement Factory guest house and requested them to help him, whereupon the first appellant demanded a sum of Rs.1,000/- and the second appellant also informed him that no one would help him if he would come with bare hands. This particular allegation is