Bail Slip The Appellant/ Accused namely Moorthy was directed to be released on bail made in Crl.M.P.No.1/2006 dated 12.12.2006 in Crl.Appeal.No.1051/2006 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1051 of 2006 Moorthy ..Appellant Vs State represented by Addl.Superintendent of Police ACB/C.B.I/Chennai .. Respondent PRAYER: Criminal Appeal filed under section 374(2) of Criminal Procedure Code against the conviction and sentence made in C.C.No.13 of 2004 by the learned Court Principal Special Judge for C.B.I Cases, Chennai by Judgment dated 21.11.2006. For Appellant : Mr.A.Ramesh Senior Counsel For Respondent : Mr.N.Chandrasekaran Spl. Public Prosecutor for C.B.I Cases JUDGMENT The sole accused in C.C.No.3 of 2004 on the file of the Principal Special Judge for C.B.I Cases, Chennai, who was prosecuted for offences punishable under Sections 7 of the Prevention of Corruption Act, 1988 and Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988, found guilty on both the charges, convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- and to undergo rigorous imprisonment for two months in case of default in payment of fine, in respect of each one of the above said offences, has come forward with the present appeal challenging the judgment of the trial Court dated 21.11.2006 in respect of conviction and sentence. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution in brief can be stated thus:- i) The appellant / accused was working as Upper Division Clerk in the office of the Trade Marks Registry at Rajaji Bhavan, Besant Nagar, Chennai. PW2-Manoj Singh hails from Bharatpur, Rajasthan State. His uncle Kehari Singh was earlier working in the Trade Marks Registry. With the help of Kehari Singh, PW2 got employed as a clerk under M/s.Haroon and Moses, an advocates firm dealing with Trade Mark cases, of which PW7 Mr.S.A.Syed Haroon and another Mr. Mosses Jayakaran were the partners. In connection with the submission of applications for registration of Trade Marks, PW2 had met the appellant/accused in the office of the Trade Marks Registry and for the applications received from PW2, the appellant/accused wrote acknowledgments on the duplicate copies. On a previous occasion, the accused did not assign the numbers to the applications immediately and delayed the work of assigning application numbers for about a week. PW2 informed the Deputy Registrar of the Trade Marks Registry and at the intervention of the Deputy Registrar, application numbers were given. ii) Then, again on 24.07.2003, PW2 submitted five applications on behalf of M/s.Maxicol Adhesives Pvt. Ltd., to the Trade Marks Registry. He also remitted a sum of Rs.1500/- to the appellant/accused towards application fee and got an endorsement on the duplicate copies of the applications, acknowledging the receipt of the applications and receipt of the above said amount as fees. After four days, on 28.07.2003 when he again met the appellant/accused at 04.00 p.m., he informed PW2 that the applications were ready for delivery, but he demanded a bribe of Rs.1000/- for furnishing the application numbers. Since PW2 did not have the necessary money at that point of time, he was asked to come to the said office at about Noon on the next day with the amount demanded as bribe. The appellant/accused also instructed PW2 to come alone. As PW2 was not willing to pay, without even informing the advocates for whom he was acting as clerk and without their knowledge, PW2 went to the office of C.B.I at Shastri Bhavan, met the Superintendent of Police and gave a written complaint under Ex.P2. On the instructions of the Superintendent of Police, CBI, PW4- Sridharan, the then Inspector of Police, C.B.I/ACB, Chennai took necessary action. He explained the whole process of trap, ascertained PW2's willingness to take part in the trap and asked him to come back to his office at 10.00 a.m. on the next day, namely, 29.07.2003. iii) Accordingly, on 29.07.2003 at 10.00 a.m, PW2 went to the office of C.B.I at Shastri Bhavan with the money intended to be given as bribe. On the invitation of PW4, the Inspector of Police, PW3- https://hcservices.ecourts.gov.in/hcservices/ Venkatesh and one Radha Madhavan had come to the C.B.I office. The said witnesses on being introduced to PW2, did ascertain that PW2 was the person who gave complaint. PW4 got six currency notes, one with the denomination of Rs.500/- and other five with the denomination of Rs.100/-, marked as M.O.1 series from PW2 and noted the serial numbers of the said currency notes. Thereafter, PW4 demonstrated how Phenolphthalein test would be conducted in trap cases and got M.O.1 series currency notes coated with phenolphthalein powder. Then, M.O.1 series currency notes coated with phenolphthalein powder were placed in the left side shirt pocket of PW2 with the instruction not to touch the currency notes until demanded by the appellant/accused. A Samsung brand Digital Recorder was also placed in the right side pant pocket of PW2 by the Inspector of Police (PW4) after switching on the same. An Entrustment Mahazar Ex.P3 was prepared for the said purpose. An arrangement was also made to the effect that the PW2 should come out and wipe his face with his hand kerchief, if the accused demanded and accepted the bribe amount. iv) Thereafter, the trap team members along with PW2 and the witnesses went to the office of the Trade Marks Registry at about 12.00 Noon, where everyone except PW2 remained outside and PW2 alone went inside the office at about 12.15 p.m. But at that point of time, the appellant/accused Moorthy was not found there and hence he had to wait for about 15 minutes for his arrival. When the appellant/accused came there after 15 minutes, PW2 enquired about the applications given by him and in response to the said query, the appellant/accused asked PW2 whether he had brought the bribe amount, for which the answer that came from PW2 was in the affirmative. The appellant/accused drew the right hand side drawer of his table half- way and asked PW2 to put the money into it and PW2 did accordingly. Thereafter, the appellant/accused gave the copies of the applications and asked PW8, a Class IV employee working in the said office as record keeper, to take PW2 to one Ravishankar, Upper Division Clerk, who was having the despatch register with him. On the instructions of the appellant/accused, he took PW2 to the said Ravishankar, informed the said Ravishankar that PW2 had to sign the despatch register and then went to attend his other works. Accordingly, after signing the Despatch Register, PW2 came out of the office and gave the signal as per the prearrangement. v) PW6 N.S.Kesavan was the officiating office superintendent in the office of the Trade Marks Registry, Chennai on the date of occurrence. The seat of the appellant/accused was situated next to the seat of PW6. He knew the fact that due to over burden of work to the despatcher, the appellant/accused was asked by the Joint Director to attend to the despatch work also and that is the reason why, in Ex.P7-Despatch Registrar pertaining to 28.07.2003, all other entries, except the first entry, were found made by the https://hcservices.ecourts.gov.in/hcservices/ appellant/accused. Ex.P13 is the attendance register and Ex.P14 is the certified extract of the service register of appellant/accused. Ex.P15 is the certified extract of the visitors register pertaining to 24.07.2003 to 29.07.2003 kept in the office of the Trade Marks Registry, Chennai. As it was the practice not to enter the names of the advocates and agents, the name of PW2 Manoj Singh is not found entered in Ex.P15 visitors register. vi) Pursuant to the signal given by PW2, the trap team members and the witnesses waiting outside entered the office of the Trade Marks Registry. When the appellant/accused was questioned by PW4, he was shocked and he could not speak. As directed by PW4, PW2 narrated the events. Then Sodium Carbonate solution was prepared in a glass tumbler and the appellant/accused was asked to dip his right hand fingers in the glass tumbler and when he did so, the solution turned pink. The said solution was sealed in a separate bottle, marked as M.O.2. Similarly, when phenolphthalein test was conducted for the left hand fingers of the accused, the sodium carbonate solution turned pink and the said sodium carbonate solution used for testing the left hand fingers of the appellant /accused is marked as M.O.3. Thereafter, the appellant/accused was arrested by PW4- Inspector of Police and on the information furnished by the accused, M.O.1 series currency notes, wrapped in a piece of cloth, were found hidden in the cabin on the other side of the office behind the seat of the appellant/accused. After cross checking the serial numbers of the currency notes, phenolphthalein test was conducted for the piece of cloth used as wrapper of the currency notes which also proved positive. The said piece of cloth, which has been marked as M.O.5, was also seized in the presence of the witnesses. The witnesses signed on the said piece of cloth also. Thereafter, PW4 got back the digital recorder from PW2, switched off the same, sealed in the presence of the witnesses and kept it with him. PW4 also recovered Ex.P7 certified copy of the despatch register. The applications received by PW2 from the despatch section were also seized by PW4. They are marked together with the receipts as Exs.P4 series. All the above said seizures were made under Ex.P5 mahazar. After the said recoveries were made at the place of occurrence, the appellant/accused was released on bail. On examination of the solutions, PW5- R.Bhanumathi, the Scientific Officer in the Chemistry Division of the Forensic Science Department, gave a report under Ex.P12 certifying that all the three items contained sodium carbonate and phenolphthalein. vii) Thereafter, the investigation of the case was transferred to and handled by PW9-V.A.Mohan, who was working as Additional Superintendent of Police, C.B.I, ACB, Chennai. He examined the witnesses, recorded their statements and collected the documents. On 01.09.2003, he filed an application to the Court, got back the https://hcservices.ecourts.gov.in/hcservices/ digital recorder, played the same in the presence of witnesses and found that the conversation was not audible. The wrapper containing the seal and signatures of the witnesses used for keeping the digital recorder is Ex.P17 and the digital recorder is M.O.6. After finding that the conversation recorded in the digital recorder (M.O.6) was not audible, PW8 again packed it, sealed it and obtained the signatures of the witnesses in a separate slip and kept in the CD file. At the conclusion of investigation, he formed an opinion that materials collected during investigation disclosed commission of offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 by the appellant/accused and applied for necessary sanction for prosecuting the appellant/accused. PW1-Dr.S.N.Maity, the Deputy Director, CMRI, CSIR, Dhanbad, who was working as Controller General Patents, Designs and Trade Marks, Mumbai, happened to be the competent authority to sanction prosecution of the appellant/accused. After perusing the records and having a subjective satisfaction, PW1 accorded sanction under Ex.P1 dated 31.12.2003 for prosecuting the appellant/accused for the offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. On receipt of the said sanction order, PW9, the Investigating Officer, submitted a final report on 28.01.2004 alleging commission of offences under Sections 7 and 13(2) r/w. 13 (1)(d) of the Prevention of Corruption Act, 1988. 3. Before the trial Court, the appellant/accused pleaded innocence and charges were framed for offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act,1988. After having the charges read over and explained, the appellant/accused denied the charges and pleaded innocence. In order to substantiate the prosecution version, nine witnesses were examined as Pws 1 to 9 and 17 documents were marked as Exs.P1 to P17 on the side of the prosecution. Six material objects were also produced as MOs 1 to 6 on the side of the prosecution. 4. After the completion of the recording of evidence adduced on the side of the prosecution, the incriminating materials available in such evidence were pointed out and the appellant/accused was questioned regarding such incriminating materials under Section 313 (1)(b) Cr.P.C. He denied the evidence against him to be false and once again reiterated his stand that he was innocent. He also submitted a written statement containing the following allegations:- "One Kehari Singh was the paternal uncle of the de facto complainant, namely PW2-Manoj Singh. The said Kehari Singh was a higher official to the appellant/accused during the year 2002 and he was placed under Suspension after being trapped by C.B.I police in a corruption case. While he was under suspension, he used to canvass with the persons approaching the Trade Marks Registry that he would help them to get things done for them. He also used to approach the https://hcservices.ecourts.gov.in/hcservices/ employees of the Trade Marks Registry with such recommendations. But the employees of the Trade Marks Registry, including the appellant/accused, used to tell him that they could act only according to rules, whereupon the said Kehari Singh used to abuse the appellant/accused and his co-workers. The relationship of PW2 with the said Kehari Singh was not known to the appellant/accused. A few days prior to 27.07.2003, PW2 came and introduced himself as the clerk of M/s.Haroon and Moses, a partnership firm dealing with Trade Mark. Subsequently on one or two occasions, he submitted applications for registration of Trade Marks. On 29.07.2003, after coming to the office in the morning, with the permission of the higher authorities, the appellant/accused went to CGHS Office to get a family health Identity Card to his family. After obtaining the said identity card, he came back to the office. When he returned to the office, PW2 approached him and asked about Ex.P4 applications whereupon, the appellant/accused informed him that Ex.P4 applications were ready and he could collect them in the despatch section. Thereafter, PW2-Manoj Singh shook hands with the appellant/accused, thanked him and left that place. After PW2 left that place, the appellant/accused opened his table drawer, put the family health Identity card in it and proceeded to attend to his office work. After some time, PW2 - Manoj Singh came there with others who introduced themselves to be C.B.I officials. When they questioned the appellant/accused, he answered that he did nothing wrong, pursuant to which, there was an altercation between him and the C.B.I officials. Meanwhile, PW2- Manoj Singh pointed out a piece of cloth lying at a distance from the table of the appellant/accused, as if by chance he happened to notice it. The appellant/accused had nothing to do with the said cloth. Appellant/accused did not receive bribe from anybody including PW2. He never demanded bribe from PW2. On 28.07.2003, PW2 did not meet the appellant/accused. The appellant/accused did not cause any delay in processing any application submitted by PW2." No witness was examined and no document was marked on the side of the appellant/accused. 5. After hearing the arguments advanced on either side, the learned trial judge considered the evidence, both oral and documentary, and, upon such consideration, held that both the charges framed against the accused stood proved and that he was guilty of offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. Based on such finding the trial Judge convicted him for the said offences with the punishments indicated supra. Challenging the conviction and sentence and praying for the reversal of the judgment of the trial Court and ultimate acquittal of the appellant/accused, the appeal has been preferred on various grounds set out in the appeal petition. https://hcservices.ecourts.gov.in/hcservices/ 6. The arguments advanced by Mr.A.Ramesh, learned senior counsel representing the counsel on record for the appellant and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I Cases were heard. The materials available on record were also perused. 7. The sole accused, who was prosecuted, found guilty and convicted by the trial Court for offences punishable under Sections 7 of the Prevention of Corruption Act, 1988 and 13(2) r/w. 13(1)(1d) of Prevention of Corruption Act, 1988 is the appellant herein. He is alleged to have demanded and received a sum of Rs.1000/- from PW2- Manoj Singh as illegal gratification for furnishing application numbers for the applications submitted by him for registration of Trade Marks. 8. The learned senior counsel for the appellant/accused in his vehement argument has submitted that the entire story of the prosecution is the result of a concoction and a stage managed show by one Kehari Singh with the aid of his close relative PW2 and the C.B.I officials; that the said Kehari Singh was employed as a higher official for the appellant in the office of the registry of Trade Marks, Besant Nagar, Chennai and he was placed under suspension after being trapped by C.B.I officials in the year 2002; that while he was under suspension, the said Kehari Singh used to canvass with the applicants coming to the Trade Marks Registry that he could get things done for them and he also used to make recommendations for them; that on such occasions, the appellant/accused as well as the other persons employed in the Trade Marks Registry used to inform Kehari Singh that they could act only in accordance with rules; that since they were not amenable to the influence of Kehari Singh, he caused intimidation to the appellant/accused and the other co-workers and that in such circumstances alone, the said Kehari Singh brought his close relative Manoj Singh (PW2) from Rajasthan and set up a false case with his help. It is the further contention of the learned senior counsel for the appellant/accused that it was quite improbable for PW2, employed as a clerk under M/s.Haroon and Moses, an advocates firm, to have chosen to approach the C.B.I for lodging a complaint even without informing and without getting the consent of his employers and that the alleged trap is an utter failure, as none of the other witnesses examined on the side of the prosecution, testified to the effect that either he/she saw the appellant/ accused receiving the bribe amount from PW2 or placing the said bribe amount after wrapping the same in a piece of cloth in a place behind his seat. The learned senior counsel also pointed out the fact that none of the inmates of the office did depose to the effect that the place wherein the currency notes wrapped in a piece of cloth had been kept, was identified by the appellant/accused and on his information alone the same were recovered and that the Seizer Mahazar was not attested https://hcservices.ecourts.gov.in/hcservices/ by any of the employees employed in the said office in which the occurrence is said to have taken place. The learned senior counsel also submitted that the explanation offered by the appellant/accused as to how his fingers tested positive for phenolphthalein test and the circumstances and the manner in which the currency notes wrapped in a piece of cloth were identified and recovered by the C.B.I officers, shall be more probable than the prosecution theory. The learned senior counsel for the appellant/accused pointed out the explanation offered by the appellant/accused that PW2, who came to the office in in the absence of the appellant/accused was waiting there till the arrival of the appellant/accused and on his arrival, he shook hands with the appellant/accused and thereby passed on the phenolphthalein powder coated in the palm of his hand and that even the amount found wrapped in a piece of cloth could have been placed by him, at a place behind the seat of the appellant/accused, as it was PW2, who pointed out the presence of that bundle wrapped in a piece of cloth lying on the floor, as if by accident he found it out. 9.The learned senior counsel argued further that as per the evidence of PW4, the distance between the table of the accused and the place wherein the tainted currency notes wrapped in a piece of cloth was about 10 feet; that even though it was sought to be projected by the prosecution witnesses that it was a cabin in which the tainted currency notes were found wrapped in a piece of cloth, it was admitted by PW4 that in the rough sketch, the location of the cabin was not specifically mentioned; that when it is the specific case of the prosecution that the accused drew the right side drawer of his table half-way and asked PW2 to put the bribe money into it and that in accordance with his instruction, PW2 placed M.O.1 currency notes coated with phenolphthalein powder in the table drawer, the Trap Laying Officer ought to have conducted phenolphthalein test for the said drawer of the table and the other contents of the table to find out whether phenolphthalein powder was present in them and that the failure to conduct such a test by the Trap Laying Officer is fatal to the prosecution case or at least shall make the story of the prosecution improbable and the defence story of the appellant / accused probable. The learned senior counsel also pointed out the fact that PW3 has admitted that though the table drawer of the appellant/accused was opened by PW4, no amount was found in it and the things found in the table drawer were not noted and that the table drawer was not subjected to phenolphthalein test. 10. On the other hand, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I Cases would contend that the evidence of the defacto complainant (PW2) stands corroborated not only by PW4- Inspector of Police, but also by one of the accompanying witnesses (PW3 Venkatesh) and that the appellant/accused did not come forward https://hcservices.ecourts.gov.in/hcservices/ with a convincing explanation for the presence of phenolphthalein powder in both of his hands. It is the submission made by the learned Special Public Prosecutor that unless the appellant/accused had handled the currency notes coated with phenolphthalein powder marked as M.O.1 series, his fingers in both hands would not have made the sodium carbonate solution turn pink. It is his further contention that there is also clear evidence adduced through PWs 2, 3 and 4 that it was the appellant/accused who identified the place wherein the currency notes marked as M.O.1 wrapped in M.O.5 cloth was found and it was through him, the C.B.I. Officials came to know that he had kept that amount wrapped in the said cloth on the cupboard available on the back side of his seat in his office. 11. This Court paid its anxious considerations to the rival submissions made on both sides. 12.PW1 is the officer who accorded sanction for the prosecution of the appellant/accused for the said offences and Ex.P1 is the sanction order passed by him. Nothing has been convased by the learned senior counsel for the appellant/accused against the sanction order. However, the judgment of the trial Court is sought to attacked on the basis of the contradictions found in the evidence adduced on the side of the prosecution, improbabilities of the prosecution story and omissions on the part of the Trap Laying Officer and the Investigating Officer. Out of the 9 witnesses examined on the side of the prosecution, PW9 is the Investigating Officer, who took up the investigation after the trap operation was completed and submitted a final report on completion of the investigation. PW2 is the de facto complainant, who is said to have lodged the compliant marked as Ex.P2 and also paid the bribe money, namely M.O.1 series coated with phenolphthalein powder to the appellant/accused. PW3 is one of the accompanying witnesses taken by the Trap Laying Officer along with his team to the place of occurrence. He is the one of the attestors of the Entrustment Mahazar, namely Ex.P3 prepared in the office of C.B.I, before the trap and the Seizure Mahazar Ex.P5 prepared in the scene of occurrence. Though one more person by