BAIL SLIP The Appellants/Accused name (1)V.Dhandapani (in Cr.A.No.1548/2002) (2)P.Rajamanickam (in Cr.A.No.1527/2002) were directed to be released on bail in and by Order of this court dated 18.11.2002 made in Crl.M.P.No.11410 of 2002 and 11272 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.03.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.Nos.1548 and 1527/2002 1.V.Dhandapani ..Appellant in Cr.A.No.1548/2002/ 1st Accused 2.P.Rajamanickam ..Appellant in Cr.A.No.1527/2002/ 2nd Accused Vs State by Inspector of Police Vigilance and Anti Corruption Salem ..Respondent in both Appeals/ (Cr.No.4/AC/92) Complainant Prayer:- These Criminal Appeals are filed against the judgement dated 3.10.2002 passed in SC.No.16/1994 by the learned I Additional District Judge cum Chief Judicial Magistrate, Salem, convicting and sentencing the appellant/A1 for the offence under Section 7 of the Prevention of Corruption Act to undergo six months of Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and under Section 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and convicting and sentencing the Appellant/A2 for the offence under Sections 7, 7 read with 12 of the Prevention of Corruption Act, 1988 to undergo six months Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and under Section 13(2) read with 13(1)(d) (Two Counts) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment for each count and ordering the sentences to run concurrently. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.V.Krishnamoorthy for Mr. G. Krishnakumar -CR.A.1548/02 Mr.K.Ramanraj-Cr.A.1527/02 For Respondent : Mr.A.Saravanan, GA JUDGEMENT These Criminal Appeals are filed against the judgement dated 3.10.2002 passed in SC.No.16/1994 by the learned I Additional District Judge cum Chief Judicial Magistrate, Salem, convicting and sentencing the appellant/A1 for the offence under Section 7 of the Prevention of Corruption Act to undergo six months of Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and under Section 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and convicting and sentencing the Appellant/A2 for the offence under Sections 7, 7 read with 12 of the Prevention of Corruption Act, 1988 to undergo six months Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment and under Section 13(2) read with 13(1)(d) (Two Counts) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo two months Rigorous Imprisonment for each count and ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. The complainant PW.3 Kumar is a weaver by profession, who had constructed a tiled house at Mecheri Town Panchayat by getting loan from the Cooperative Housing Society and gave an application to the Mecheri Town Panchayat Executive Officer (A1). He had met the Executive Officer (A1) 10 days prior to the date of trap and requested him to assess the tax for his newly constructed house, for which A1 demanded Rs.200/- as illegal gratification. When he came out of A1's room, A2, the Bill Collector also demanded a sum of Rs.50/- for assessing house tax. As PW.3 had no money, he expressed his inability to pay the sum to both of them individually. Again on 11.11.1992, PW.3 went to the Office of the Town Panchayat and met A1 and A2, but both of them again reiterated their demand and instructed him to bring the said sum as demanded by them apart from Rs.50/- for assessment fees. b. The next day i.e. on 12.11.1992, PW.3 borrowed a sum of Rs.300/- from PW.6 Beemaraj his employer, but, however he was not willing to pay bribe to the accused persons and so, decided to give a complaint to the Vigilance Police. On the same day, he gave the https://hcservices.ecourts.gov.in/hcservices/ complaint Ex.P3 to PW.12 L.Panneerselvam, the Inspector of Police, Vigilance and Anti Corruption. d. PW.12, the investigating officer on receipt of the said complaint registered a case in Cr.No.4/AC/92 for the offence under Section 7 of the Prevention of Corruption of Act and prepared FIR Ex.P22 and decided to conduct a trap as accepted by PW.3. PW.12 summoned the witnesses PW.4, K.V.Rajagopal who was working as an Assistant in the Education Department, Salem and one Kumar from the Office of the Housing Board. PW.12 received the decoy amount from PW.3 and demonstrated the phenolphthalein test to PW.3 and the witnesses summoned by him. On the same day, PW.3 was asked to give the said currency notes smeared with phenolphthalein powder and instructed him to give the amount to the accused persons, if the same is demanded by them and thereafter to come and give the prearranged signal by combing his hair with hands. PW.4 was instructed to accompany PW.3 and watch the conversation and further instructed to introduce him as a cloth merchant. c. In respect of the proceedings held at the Vigilance Office, PW.12 prepared the entrustment Mahazar Ex.P6 and thereafter, the raiding party, PW.12 and others including PW.3 and PW.4 left for Mecheri Town Panchayat Office and reached there at about 4.00 p.m. As per the instructions, PW.3 and PW.4 went inside the office of the accused. On seeing PW.3, A1 had asked whether he has come ready with the matter and when PW.3 acknowledged it, he asked to him wait outside till the arrival of A2. After some time, A2 arrived at and when PW.3 met him, he also asked him whether he has come ready with the matter. Then A2 went inside the room of accused and PW.3 was asked to come inside and PW.3 went inside accompanied by PW.4 and the latter was introduced as a cloth merchant. At the instance of A1, PW.3 handed over Rs.300/- to A2 who kept the amount in his front left pocket. A2 asked him to wait till 7.00 p.m. to prepare the tax assessment. d. Thereafter, PW.3 and PW.4 came out and gave the signal as per the prearranged plan and PW.12 along with the raiding party entered inside and PW.2 identified A2 and also A1 to PW.12 as to have received bribe amount at the instance of A1. Thereafter, PW.12 conducted phenolphthalein test and when the hands of A2 was dipped into the solution, it turned into light pink colour. Then PW.1 prepared a mahazar Ex.P12 and seized the shirt Mo.8. He also seized the decoy amount MO.1 (Series) and also seized Exs.P7 to P11 from the office of the Town Panchayat relating to this case. After complying with formalities and also after completion of investigation and getting sanction, PW.13 who took up the case for further investigation laid a charge sheet against the accused persons/A1 and A2 for the offences under Sections 7, 13(2) read with 13(1)(d) (Two Counts) of the Prevention of Corruption Act, 1988. https://hcservices.ecourts.gov.in/hcservices/ 3. The case was taken on file in SC.No.16/1994 by the learned I Additional District Judge cum Chief Judicial Magistrate, Salem and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.22} and also relied on Exs.P1 to P6 and eight material objects (Mos.1 to 8). 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in these Criminal Appeals. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.V.Krishnamoorthy and Mr.K.Ramanraj the learned counsel for the Appellants took me through the deposition of the Prosecution witnesses, more particularly PW.3, PW.4 and PW.12 and contended that the Trial Court committed a serious error in convicting the accused, as it failed to take into consideration that the Prosecution has not been able to prove the demand and acceptance of the bribe. They have also pointed out to the serious lacuna committed by the Trial Court in not putting appropriate questions regarding the incriminating materials which vitiated the entire trial warranting interference by this court. 8. On the other hand, Mr.A.Saravanan, the learned Government Advocate supported the judgement of the court below and argued that there is sufficient corroboration for the testimony of PW.3 from PW.4 an independent witness and that apart, the very undisputed fact that the money was seized from the pocket of the 2nd accused is itself sufficient corroboration for the testimony of PW.3 that the bribe was paid to him. 9. The Prosecution has examined the complainant as PW.3 and from his evidence it is seen that the allegation is that the A1 demanded Rs.200/- even ten days prior to the trap and on the same day A2 also demanded Rs.50/0 as bribe to get the assessment for the newly constructed house. Though PW.3 expressed his inability to pay the amount for want of funds, A2 is said to have visited his house, inspected the house and asked to him to arrange for the money. It is his case that again on the next day, they reiterated the demand. Thereafter, PW.3 had borrowed Rs.300/- from PW.6 Beemaraj and had gone to the Town Panchayat Office, but did not tender the amount to https://hcservices.ecourts.gov.in/hcservices/ the Appellants. Instead, he said that he approached the Vigilance and gave the complainant. 10. It is the categoric statement of PW.3 that on the date of trap, A1 had only asked him as to whether he has brought the one that was asked by them. PW.3 did not refer to the money that was asked by A1 and A2, whereas PW.4 says that A1 and A2 asked PW.3 as to whether he has brought the amount, specifically referring to the money. Thus, it is clearly seen that the version of PW.4 that the both the Appellants when they were met individually by PW.3 asked him whether he had brought the money and that PW.3 told him that he had and that A1 asked him to pay the money to A2 is not spoken to by PW.3 the complainant. It is significant that PW.3 did not specifically refer about the money to have been asked by A1 and A2. Omission by PW.3 to refer to any mention of money by the Appellants would show that there is no corroboration of testimony on the vital point. On this crucial aspect, there is no corroboration and no credence could be given to this evidence. This part of evidence cannot be ignored as a minor contradiction, as admittedly no money was recovered from A1. It is the case of PW.3 that A1 and A2 demanded money individually and his evidence indicates that A1 was not aware of the demand made by A2 nor A1 was aware of A2's demand. In such circumstances, when PW.3 had told A1 that he had brought the amount as demanded by A1, the probable conduct that would be expected from A1 would be that he would get the amount from PW.3 without waiting for A2. But, as per PW.3's evidence, it is seen that he did not take the money, but asked PW.3 to wait for A2. If really A1 had made a demand of bribe, then he would not have waited for A2 to receive the bribe amount from PW.3 and the evidence of PW.3 raises a considerable doubt as to whether there was any demand of bribe as alleged by the complainant. 11. Like wise, even with regard to A2, it is admitted that when he met A2 and indicated that he had brought the amount, he did not ask him to give the amount to him. At this juncture, it is pertinent to point out to the evidence of PW.3 where he has candidly admitted that after he came out of the room of A1 on the day of first demand, A2 did not make any demand, but came to his house and waited for PW.3 to return from his weaving work and demanded a sum of Rs.50/-. But, in the complaint, he has stated that the said demand was made by A2 in his Office on the same day when he came out from A1' s room. The relevant passage from PW.3's evidence is extracted below for better appreciation:- "2tJ vjphpia eh';fs; ghh;j;j clnd. eh';fs; Vw;fdnt Kjy; vjphpiag; ghh;h;j;Jtpl;nlhk; vd;W brhd;ndhk;/ mJ rkak; Kjy; vjphp v';fsplk; gzk; bfhz;L te;jpUf;fpwPh;fsh vd;Wk;. gzk; eh';fs; bfhLj;njhkh vd;gJ gw;wpa[k; vJt[k; eh';fs; 2tJ vjphpaplk; brhy;ytpy;iy/ 2tJ vjphpa[k; mJg;gw;wp vJt[k; https://hcservices.ecourts.gov.in/hcservices/ nfl;ftpy;iy/ mg;nghnj 2tJ vjphp vdf;F bfhLf;f ntz;oa gzj;ijf; bfhL vd;W vd;dplk; nfl;ftpy;iy/@ 12. From the aforesaid evidence, it is clear that there is no consistent evidence from PW.3 regarding the demand made by A1 and A2 and the alleged payment made by him to A2. The learned counsel Mr.K.Ramanraj drew the attention of this court to the observation made by the Honourable Supreme Court in the case of Suraj Mal Vs. State (Delhi Administration) [1979-Cri.LJ-1087] wherein it is observed that when the witnesses make two inconsistent statements in their evidence either at one stage or at two stages, testimony of such witnesses becomes unreliable and unworthy of credence. The Honourable Supreme Court in the case of Sita RamVs. State of Rajasthan [1975-Crl.LJ-1224] has observed that if the demand of bribe by the accused is not proved, then in that case, story of payment of money by the complainant cannot be said to be established beyond a reasonable doubt and the presumption raised under the account cannot be drawn in favour of the accused. 13. The very foundation of the Prosecution case that the demand made by A1 and A2 and the payment made to A2 had been shaken to a great extent. The inconsistent and unreliable evidence of PW.3 not corroborated by PW.4 in material particulars would only lead to an interference that the story put up by the Prosecution is subject to grave suspicion. 14. That apart, PW.3 categorically said that he gave an application to the Town Panchayat for the purpose of assessment of tax written by one Thangam. He would further state that he wrote the said application in one shop in Mecheri and that was handed over to the 1st accused. But, on record it is brought out that no such application was given and PW.3 had only signed a format prescribed for the said purpose and it is marked as Ex.P5. On this aspect, PW.10's evidence throw some light. He has stated that if any application was received from PW.3, it would have been sent to him for registration, but no such application had been received by him. In his cross examination, he has stated that it is he who handed over Ex.P5 application given by PW.3 to the Vigilance Police and he also handed over the relevant register to them. His evidence clearly indicated that no such written application as deposed by PW.3 had been given to the 1st accused. Therefore, the case of the Prosecution that the complainant PW.3 had submitted an application long prior to the alleged demand is not established. Therefore, the above said discrepancies and inconsistent would only disprove the case of the Prosecution with regard to the demand of bribe by A1 and A2 and the payment made to A2. 15. Another important and significant factor brought to the notice of this court by the learned counsel for the Appellants is that the most relevant and materials circumstances were put to the https://hcservices.ecourts.gov.in/hcservices/ accused persons when they were examined under Section 313 Code of Criminal Procedure and vehemently argued that the same would render the conviction unsustainable. The learned counsel for the Appellants refer to a catena of decisions reported in the cases of Bimla Devi and others Vs. State of Jammu and Kashmir [2009-3-SCC-Cri-103], Inspector of Customs, Akhnoor, Jammu and Kashmir Vs. Yashpal and another [2009-2-SCC-Cri-593], Latu Mahto and another Vs. State of Bihar (Now Jharkhand) [2008-3-SCC-Cri-500], State of Punjab Vs. Hari Singh and others [2009-2-SCC-Cri-243], Shaikh Maqsood Vs. State of Maharashtra [2009-3-SCC-Cri-82], Ajay Singh Vs. State of Maharashtra [2008-1-SCC-Cri-371], Panalal Damodar Rathi Vs. State of Maharashtra [1979-4-SCC-526], Naval Kishore Singh Vs. State of Bihar [2004-SCC- Cri-1967], Ganesh Gogoi Vs. State of Assam [2009-3-SCC-Cri-21] and Narendra Singh and another Vs. State of MP [2004-SCC-Cri-1893] wherein the Honourable Supreme Court emphasised the importance of examination of the accused under Section 313 of Code of Criminal Procedure and observed that it is not an empty formality. 16. It is relevant to refer to the observation made in the case of Latu Mahto and another Vs. State of Bihar (Now Jharkhand) [2008-3-SCC-Cri-500] wherein it is held that a circumstance about which the accused was not asked to explain cannot be used against him. It is held as follows:- "What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is 'for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.' In Jai Dev V. State of Punjab [Air-1963-SC-612], Gajendragadkar, J (as he then was) speaking for a three Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: "21.... The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity." 19. Thus it is well settled though the the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. https://hcservices.ecourts.gov.in/hcservices/ 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word 'may' in clause (a) of sub section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him." 17. In this case, in the course of examination under Section 313 of Code of Criminal Procedure, the materials and circumstances that are relevant only to A1 had been put to A2 and vice versa. That apart, while drawing the attention of the accused persons to the evidence of PW.3, no question was put to them regarding the alleged bribe paid to A2 at the instance of A1 and also about the recovery of the amount made from A2. There is absolutely no question put to the accused persons regarding the evidence of PW.4. The only question put to them was that as per the evidence of PW.3, demand has been made by A1 and about the complaint given by PW.3 to the Vigilance Police. The object of examination under Section 313 of Code of Criminal Procedure, which is well known and constantly emphasised by the Honourable Supreme Court in various decisions, some of which are referred to by the learned counsel for the Appellants, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against them. It is most unfortunate that no question was asked about the material and relevant portion of such evidence. That apart, the questions had been put to the accused in a most inappropriate manner in utter disregard to the provisions of Section 313 of Code of Criminal Procedure. 18. The essence of accusation and the material circumstances that appeared against both the accused through the evidence of PW.3 and PW.4 have not been brought to their notice, more particularly regarding payment of bribe and the receipt of bribe by A2 at the instance of A1. The effect of such grave omission vitally affects the Prosecution case, as they have not only been given an opportunity to deny the prosecution version, but also to explain their defence. 19. Looking at this case, in the back ground of the principles enunciated by the Honourable Supreme Court, I am of the considered opinion that the conviction and sentence imposed on the Appellants cannot be sustained and the same is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 20. In the result, these Criminal Appeals are allowed. The conviction and sentence imposed on the appellants by the court below in SC.No.16/1994 are set aside and the Appellants are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid is ordered to be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To 1. The I Additional District Judge cum Chief Judicial Magistrate, Salem. 2. The Inspector of Police, Vigilance and Anti Corruption, Salem. 3. The District Judge, Salem. 4. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. K. Ramanraj, Advocate. S.R.No.14284. Crl.A.Nos.1548 and 1527/2002 VSV (CO) GSK 09.03.2010. https://hcservices.ecourts.gov.in/hcservices/