1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.O.P.(MD)No.4949 of 2011 AND Crl.A.(MD)No.123 of 2011 Crl.O.P.(MD)No.4949 of 2011: The State of Tamil Nadu represented by The Inspector of Police, Vigilance and Anti-Corruption Detachment, Tirunelveli. ... Appellant/Complainant Vs. S.Veerattan ... Respondent/Accused Criminal Original Petition filed under Section 378(3) of the Code of Criminal Procedure to grant leave to appeal to this Court against the judgment of acquittal dated 24.07.2009 in Special Case No.2 of 2000 on the file of the learned Chief Judicial Magistrate and Special Judge, Tirunelveli. For Petitioner : Mr.P.Kandasamy, Government Advocate (Crl.Side) For Respondent : Mr.R.Anand Crl.A.(MD)No.123 of 2011: The State of Tamil Nadu represented by The Inspector of Police, Vigilance and Anti-Corruption Detachment, Tirunelveli.(Cr.No.3/1997) ... Appellant/Complainant Vs. S.Veerattan ... Respondent/Accused Criminal Appeal filed under Section 378 of the Code of Criminal Procedure to set aside the judgment of acquittal dated 24.07.2009 in Special Case No.2 of 2000 on the file of the learned Chief Judicial Magistrate and Special Judge, Tirunelveli. For Appellant : Mr.P.Kandasamy, Government Advocate (Crl.Side) For Respondent : Mr.R.Anand https://hcservices.ecourts.gov.in/hcservices/ 2 COMMON ORDER The State of Tamil Nadu represented by the Inspector of Police, Vigilance and Anti-Corruption Detachment, Tirunelveli, is the petitioner/appellant and aggreived by the acquittal of the respondent/accused for the alleged commission of the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, has filed this petition praying for leave to prefer the appeal against the acquittal. 2. The facts in brief necessary for the disposal of this petition, are as follows: The respondent was working as Special Revenue Inspector, Civil Supplies, Shencottai Taluk. According to the prosecution, the respondent has demanded a sum of Rs.100/- as monthly 'mamool' (illegal gratification) from P.W.2 - decoy witness, the defacto complainant at 15.00 hours on 28.09.1997 and further instructed to pay the said amount on 30.09.1997 while submitting the monthly schedule for allottment to the Kesavapuram Fair Price Shop in which P.W.2 was working as Salesman. 3. P.W.2 felt that the demand made by the respondent/accused was unreasonable one and hence, lodged a complaint on the file of the Department of Vigilance and Anti-Corruption, Tirunelveli and a case was registered in Cr.No.3 of 1997 under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 4. P.W.16 - the Trap Laying Officer has requested for the services of P.W.3 and other independent witness and conducted the demonstration of Phenolphthalein Test and also instructed P.W.2 to pay the bribe amount and after paying it, directed him to give a pre- arranged signal. Entrustment mahazar was prepared in this regard under Ex.P.3 dated 30.09.1997. 5. As per the instructions of P.W.16, P.W.2 accompanied by P.W.3 met the respondent/accused at his office at about 12.05 p.m on 30.09.1997 and paid the bribe amount of Rs.100/-. On payment of the bribe amount, P.W.2 came out and gave the pre-arranged signal and immediately, the police party headed by P.W.16 entered into the office and conducted the Phenolphthalein Test and it proved positive. A mahazar was prepared in this regard under Ex.P.11 by P.W.16. Thereafter, he seized the documents and also searched the house of the accused and nothing incriminating was found. The accused was arrested and he was enlarged on bail by P.W.16. 6. The investigation was conducted by P.W.17 - Deputy Superintendent of Police of the Vigilance and Anti-Corruption Detachment and after investigation, he filed the final report charging the respondent/accused for the commission of the above said offences. 7. The Court of Chief Judicial Magistrate/Special Court for Prevention of Corruption Act cases, Tirunelveli, took the charge sheet on file in Special Case No.2 of 2000 framing the charges under https://hcservices.ecourts.gov.in/hcservices/ 3 Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, against the respondent/accused and questioned him. 8. The respondent/accused pleaded not guilty of the charges framed against him. The prosecution in order to sustain its case, examined 17 witnesses, marked 23 exhibits and also marked 3 material objects. 9. The respondent/accused was questioned under Section 313(1) (b) of the Code of Criminal Procedure with regard to the incriminating circumstances and he denied it as false. 10. On behalf of the respondent/accused, no oral evidence was let in and no documents were marked. 11. The trial Court, on appreciation of oral and documentary evidence and other materials available on record, has acquitted the respondent/accused vide judgment dated 24.07.2009 and challenging the vires of the same, the present appeal is filed. 12. The petitioner/appellant has filed this petition praying for leave of this Court to prefer this appeal. 13. The learned Government Advocate (Criminal Side) would submit that the trial Court taking into consideration some trivial discrepancies, acquitted the respondent/accused overlooking the fact that the witnesses were examined much later from the date of occurrence. 14. It is further submitted by the learned Government Advocate (Criminal Side) that the testimonies of P.W.2 - decoy witness and P.W.3 - official witness, corroborated with each other and though there is a minor discrepancy with regard to the Chemical Analysis Report, the testimonies of the witnesses are cogent and trustworthy and therefore, the trial Court committed a grave error in acquitting the respondent/accused. 15. Per contra, Mr.R.Anand, learned Counsel for the respondent/accused would submit that the demand, as spoken to by P.W.2, on 28.09.1997 could not have been made and under Ex.P.16, the respondent has proved that he has not attended the duty on the date of trap. It is further submitted by the learned Counsel for the respondent/accused that though according to the prosecution, the bribe amount was received from P.W.2 by using his left hand, the Phenolphthalein Test conducted on the right hand of the respondent/accused had also turned positive and the said discrepancy creates a great doubt in the case projected by the prosecution as to the receipt of the bribe amount by the respondent/accused. 16. In support of his submissions, the learned Counsel for the respondent/accused has placed reliance upon the judgment of the Honourable Apex Court in K.Sivanandam v. State represented by the https://hcservices.ecourts.gov.in/hcservices/ 4 Inspector of Police, Central Bureau of Investigation and Anti- Corruption Branch, Chennai-6 reported in (2007) 1 MLJ (Crl.) 269. It is also the submission of the learned Counsel for the respondent/accused that the trial Court on a careful scrutiny of the oral and documentary evidence, has arrived at a finding that the charges framed against the accused have not been proved and since the impugned judgment being an order of acquittal, this Court will normally be slow in interfering the order of acquittal and hence, prayed for dismissal of this petition. 17. This Court has carefully considered the rival submissions made on either side and also perused the impugned judgment. 18. A perusal of the impugned judgment would disclose that as per Ex.P.16, the respondent/accused was granted leave on 27.09.1997 and 28.09.1997 to attend the death ceremony at Cuddalore and the same is evidenced through the testimony of P.W.10. If it is so, there could not have been any demand on 28.09.1997 as spoken to by P.W.2. P.W.12 and P.W.13 had spoken about the said fact that even though they have been treated as hostile witnesses, major portions of their testimonies support the defence projected by the respondent/accused and therefore, the trial Court has placed reliance upon the said testimonies coupled with the evidence of P.W.10 and Ex.P.16 and arrived at a finding that the respondent/accused would not have been present on 28.09.1997 and therefore, there could not have been any demand on that date. 19. The trial Court has also taken into consideration the fact that the official witness namely P.W.3 was standing near the window and was watching the proceedings and from the evidence of P.W.3, it was highly doubtful as to whether he would hear the conversations of P.W.2 and the accused and the receipt of the bribe amount by the accused and putting the same inside the table drawer. 20. The trial Court has also taken into consideration the vital aspect namely the conducting of Phenolphthalein Test on the respondent/accused immediately after the trap was laid. According to P.W.2 and P.W.3, the accused received the bribe amount through his left hand, but the Chemical Analysis Report marked as Ex.P.23 would disclose that the solutions in respect of the immersion of both right and left hands turned positive. The trial Court has taken into consideration the vital discrepancy and found that the bottles containing the solution could have been changed or the Chemical Analysis Report could not have been correct. 21. In K.Sivanandam v. State represented by the Inspector of Police, Central Bureau of Investigation and Anti-Corruption Branch, Chennai-6 reported in (2007) 1 MLJ (Crl.) 269 at page 278, it has been held as follows: ".... The Court has to believe only one version either the version of the prosecution witnesses or the scientific report. A scientific https://hcservices.ecourts.gov.in/hcservices/ 5 proof does not give falsehood, whereas the witnesses can utter falsehood. If the scientific version is believed, then both the hands of the accused should have been soiled with phenolphthalein powder and tested positive when the test was conducted at the time of sodium carbonate solution test. But the evidence of the prosecution witnesses is not so. Therefore, this would show that the prosecution witnesses have not come forward with truth." 22. The trial Court has also taken into consideration the fact that at the time of conducting audit on 26.09.1997 in the Fair Price Shop in which P.W.2 was working, some discrepancies were noted by the respondent/accused and there is a possibility of developing animosity which resulted in the lodging of the false complaint by P.W.2. 23. This Court, on a careful perusal and analysis of the impugned judgment, is of the view that the appellant failed to establish the demand on 28.09.1997 on the part of the respondent/accused as he was granted leave on 27.09.1997 and 28.09.1997 as spoken to by P.W.10 coupled with the documentary evidence namely Ex.P.16. 24. It is the settled position of law that mere proof of receipt of money in the absence of proof of demand will not be sufficient to sustain the charge framed against the accused. 25. This Court is of the considered view that there is no illegality or irregularity or error apparent on the face of the record in the order of acquittal passed by the trial Court. 26. It is also pertinent to point out at this juncture that the alleged occurrence is said to have been taken place during September 1997 and the order of acquittal came to be passed on 24.07.2009. The appellant herein preferred the appeal with the delay of 499 days and the delay was condoned. Thereafter, the Special Leave Petition and the Criminal Appeal came to be filed. 27. This Court taking into consideration the facts and circumstances of the case and for the reasons cited above, is of the view that this Special Leave Petition is liable to be dismissed. Accordingly, Crl.O.P(MD)No.4949 of 2011 is dismissed. Consequently, Crl.A.(MD)No.123 of 2011 is also dismissed. Sd/- Assistant Registrar(Crl.Side) /TRUE COPY/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 6 To 1. The Inspector of Police, Vigilance and Anti-Corruption Detachment, Tirunelveli. 2. The Chief Judicial Magistrate and Special Judge, Tirunelveli. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to: The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. ORDER MADE IN Crl.O.P.(MD)No.4949 of 2011 AND Crl.A.(MD)No.123 of 2011 16.06.2011 rsb PA/28.06.2011/6P/5C https://hcservices.ecourts.gov.in/hcservices/