IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.966 of 2004 State Rep. By The Deputy Superintendent of Police Vigilance and Anti Corruption Police Station Udhagamandalam Crime No.1/2002 ... Appellant/Complainant Vs. M.Asaithambi ... Respondent/Accused This Criminal Appeal has been filed under Section 378 of Criminal Procedure Code as against the order of acquittal made in C.C.No.3/2002 dated 26.03.2004 by the learned District Judge cum Chief Judicial Magistrate & Special Judge, Udhagamandalam. For Appellant : Mr.R.Muniapparaj Government Advocate (Crl. Side) For Respondent: Mr.K.Rajkumar J U D G M E N T This appeal against acquittal has been preferred by the State represented by the Deputy Superintendent of Police, Vigilance and Anti Corruption Police Station, Udhagamandalam against the judgment of the learned Special Judge under the Prevention of Corruption Act, 1988 (District Judge cum Chief Judicial Magistrate), Udhagamandalam in Special C.C.No.3/2002 dated 26.03.2004. 2. The sole accused in the above said case was prosecuted for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. At the conclusion of trial, the learned trial judge,by his judgment dated 26.03.2004, acquitted the respondent herein/accused holding that the charges were not proved beyond reasonable doubt and that the respondent/accused was not guilty of any of the offences for which he was prosecuted and acquitted him of all the offences with which he stood charged. Challenging the correctness and legality of the said judgment of acquittal, the State has come forwards with the present appeal under Section 378 Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the prosecution, in brief, can be stated as follows:- i) The respondent/accused was employed as Revenue Inspector in the office of the Municipality of Coonoor, Nilgiris District. The de-facto complainant Anandan (P.W.1) was residing in Coonoor along with his wife Sagayameri. The said Sagayameri was an elected councillor of Coonoor Municipal Council. In Chandra Colony, the above said Sagayameri had got a house site measuring 3 cents comprised in Survey No.2722. She had applied to the Coonoor Municipality for assessment of property tax in respect of the above said house site. ii) When P.W.1 approached the respondent herein/accused on 02.01.2002 at about 3.00 p.m, the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification. After bargain, he agreed for a sum of Rs.5,000/-. However, on 09.01.2002, P.W.1 went to the office of the municipality and informed the respondent herein/accused that he had not got the money. Thereafter, the respondent herein/accused informed P.W.1 that he must pay at least Rs.4,000/- and directed him to come and meet him in the office on 10.01.2002. iii) On 10.01.2002, P.W.1 went to the Vigilance and Anti- corruption Wing and gave a complaint marked as Ex.P3 at 10.00 a.m. P.W.7, the then Deputy Superintendent of Police, Vigilance and Anti-corruption Department, Udhagai received the said complaint, prepared Ex.P14-First Information Report and registered a case as Cr.No.1/2002 on the file of Vigilance and Anti-corruption Wing, Udhagai, under Section 8 of the Prevention of Corruption Act, 1988. Thereafter it was decided to trap the respondent herein/accused while receiving the illegal gratification. P.W.3-Anish Ahamed and one Shivasubramania samraj were invited to be the witnesses in this regard. In their presence it was demonstrated by the police as to how phenolphthalein test shall be conducted in trap cases. M.O.3 series, namely cash of Rs.4,000/- (Rs.500 x 4 and Rs.100 x 20) were coated with phenolphthalein powder and again entrusted to P.W.1 with instructions to go to the Municipal office and give the currency notes coated with phenolphthalein powder to the accused (respondent) in the event of any demand being made by him. He was also asked to take along with him P.W.3. P.W.1 had also been advised to give a signal if the respondent herein/accused received the money as illegal gratification. iv) When P.W.1, accompanied by P.W.3, went to the Municipal office, Coonoor, the respondent herein/accused was found in his seat. When they approached the respondent herein/accused, he asked P.W.1 whether he had brought the money. When the answer was in the affirmative, the respondent herein/accused came out of the office along P.Ws.1 and 3, received a sum of Rs.4,000/- from https://hcservices.ecourts.gov.in/hcservices/ P.W.1 as illegal gratification in the presence of P.W.3 and kept it safely in the left side pocket of his pants. Thereafter, P.W.1 gave a signal to the police, pursuant to which the police people came out of their hide out. When phenolphthalein test was again conducted in the office of the respondent herein/accused by asking him to dip his fingers in the Sodium Carbonate solution, the solution turned pink suggesting presence of phenolphthalein power. When the respondent herein/accused was questioned about the money received by him from P.W.1, his initial reaction was that he did not receive any money from P.W.1. However, after initial hesitation, he took out M.O.3 series from the left side pocket of his pants and handed them over to the police. The currency notes were verified with the numbers already noted in the Mahazar prepared in the office of the Vigilance and Anti- corruption Department. Thereafter, the respondent herein/accused was given a dhoti to change his pants and the said pants was recovered from him. When phenolphthalein test was conducted for the left side pocket of his pants, it proved positive. v) The Sodium Carbonate solution used at the time of demonstration in the office of the Vigilance and Anti-corruption Department and the Sodium Carbonate solutions, used for phenolphthalein test in the office of Coonoor Municipality were separately sealed then and there itself. A rough sketch marked as Ex.P11 was also prepared to show the topography of the place of occurrence. Ex.P1-application of Sagayameri for property tax assessment, Ex.P7-Property tax assessment register, Ex.P8- Distribution register, Ex.P9-Tapal register, Ex.P6-A2 Register were recovered from P.W.4, the then Revenue Officer, by P.W.7, the Deputy Superintendent of Police. Separate mahazars were prepared for entrustment of the phenolphthalein coated currency notes to P.W.1 in the office of the Vigilance and Anti-corruption department at the time of preparation for laying a trap and for the recovery of M.Os.4 to 7 series in the office of Coonoor Municipality. The Sodium Carbonate solution used for the demonstration of phenolphthalein test in the office of P.W.7 and used in the trap for the fingers of the respondent herein/accused and for the left side pocket of the pants of the respondent herein/accused were sent to the Forensic Lab through court with necessary requisitions and a positive report was received from the Forensic Lab. As P.W.7 was subsequently transferred and he was succeeded by P.W.8 who in turn was later on succeeded by P.W.9, the investigation was continued by P.W.8 and then by P.W.9 who completed the investigation and submitted a charge-sheet on the file of the District Judge cum Chief Judicial Magistrate (Special Judge for Prevention of Corruption Act) alleging commission of the above said offences. Necessary sanction for prosecution was also obtained before the submission of the charge-sheet. P.W.2, the then Director of Municipalities had passed the sanction order, marked as Ex.P5. 4. On appearance of the respondent herein/accused before the https://hcservices.ecourts.gov.in/hcservices/ trial court, he pleaded innocence. Necessary charges were framed 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 respondent herein/accused denied the said charges, pleaded not guilty and wanted the case to be tried. 5. Nine witnesses were examined as P.Ws.1 to 9 and 18 documents were marked as Exs.P1 to P18 and also 7 material objects were produced as M.Os.1 to 7 on the side of the prosecution to substantiate the charges framed against the respondent herein/accused. After recording of evidence on the side of the prosecution was over, the accused was questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and once again reiterated his stand that he was innocent and that the case was foisted by P.W.1, who was the husband of an elected councillor of Coonoor Municipality with the help of his friends in the Anti-corruption Wing of the police department. No witness was examined on the side of the respondent herein/accused. However, eight documents were marked as Exs.D1 to D8 on his side. 6. 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 and upon such consideration, came to the conclusion that the prosecution failed to prove the charges beyond reasonable doubt. Holding the respondent herein/accused not guilty of the offences with which he stood charged the trial court acquitted him of the said charges by its judgment dated 26.03.2004. 7. Aggrieved by the same and challenging the correctness and legality of the said judgment of acquittal dated 26.03.2004, the State represented by the Deputy Superintendent of Police has brought-forth this appeal on special leave on various grounds set out in the appeal petition. 8. The point that arises for consideration is:- "whether the judgment of acquittal pronounced by the trial court suffers from any defect or infirmity warranting interference in this appeal?" 9. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl. Side) and by Mr.K.Rajkumar, learned counsel for the respondent/accused were heard. The entire materials on record were also perused. 10. The present appeal has been filed by the State with the special leave of this court against the judgment of acquittal pronounced by the Special Court under the Prevention of Corruption Act (District Judge cum Chief Judicial Magistrate), Udhagamandalam dated 26.03.2004 made in C.C.No.3/2002. Section 378(1) Cr.P.C enables the State to prefer an appeal to the High https://hcservices.ecourts.gov.in/hcservices/ Court against the order of acquittal. But, sub-clause (3) of Section 378 says that no appeal under the sub-clause (1) shall be entertained except with the leave of the High Court. In this case, this court has granted such leave by its order dated 29.07.2004 made in Crl.O.P.No.27384/2004. 11. It is a case of trap in which the respondent herein/accused is alleged to have been caught after receiving a sum of Rs.4,000/- as illegal gratification. According to the prosecution story, for passing an order of assessment of property tax on an application made by the wife of P.W.1, the respondent herein/accused initially demanded a sum of Rs.7,000/- as illegal gratification, then reduced it to Rs.5,000/- and at last reduced the demand to Rs.4,000/- which amount was received by him from P.W.1 on 10.01.2002 at about 3.00 p.m. It is the further case of the prosecution that not willing to pay any amount as illegal gratification as demanded by the respondent herein/accused, P.W.1 lodged a complaint with P.W.7 under Ex.P3, whereupon P.W.7 organised a trap operation in which the respondent herein/accused was caught with the bribe money. 12. The learned Government Advocate (Crl. Side) argued that the witnesses for the trap operation had given clear evidence without any scope for contradiction and that despite the same, the learned trial judge pointing out minor discrepancies and blowing the same out of proportion, came to an erroneous conclusion that the prosecution failed to prove its case beyond reasonable doubt. It is his further contention that the finding of the court below, can even be termed "perverse" and that the same has resulted in grave injustice and miscarriage of justice which should be rectified and set at right by this court by convicting the respondent herein/accused for the offences for which he was prosecuted. 13. Per contra, the learned counsel for the respondent herein/accused would contend that the court below considered the evidence in proper perspective and came to a correct conclusion that the prosecution failed to prove its case beyond reasonable doubt; that the presumption of innocence shall be doubly strengthened by the judgment of acquittal and stronger grounds are needed for interference with such judgment of acquittal and that in this case, the appellant has not made out any such stronger ground for setting aside the order of acquittal and convicting the respondent herein/accused reversing the judgment of acquittal. 14. This court paid its anxious consideration to the submissions made on either side. 15. Though, P.W.1 happened to be the de-facto complainant, he was not the applicant before the Municipality seeking assessment of property tax for his property. On the other hand, https://hcservices.ecourts.gov.in/hcservices/ his wife Sagayameri is said to have made the application-Ex.P1 for passing an assessment order fixing property tax for her property, namely a house site measuring 3 cents comprised in survey No.2722 in Chandra Colony, within the limits of Coonoor Municipality. The said application was allegedly submitted on 27.12.2001. Ex.P2 is the receipt issued in the municipal office in token of having received Ex.P1-application. It is the case of the prosecution that the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification on 02.01.2002 for preparing the assessment note. It is pertinent to note that Sagayameri (wife of P.W.1) was an elected councillor of Coonoor Municipality. The taxing authority is none other than the municipality of Coonoor. As rightly pointed out by the learned counsel for the respondent herein/accused, it is quite improbable for an employee of the Coonoor municipality to demand illegal gratification for making assessment of property tax relating to the property of an elected member of the very same municipality. 16. Ex.P1 is the application submitted by Sagayameri to the Commissioner, Coonoor municipality on 27.12.2001. There is an endorsement made by the Revenue Officer on 03.01.2002 directing the application to be sent to the Revenue Inspector for his remarks. It is the case of the prosecution that on 02.01.2002 itself P.W.1 met the respondent herein/accused and on that day itself the respondent herein/accused demanded a sum of Rs.7,000/- as illegal gratification. As rightly pointed out by the learned counsel for the respondent herein/accused, it is quite improbable for the respondent herein/accused to have made such a demand even before seeing the application and even before the application was referred to him for his remarks. Only on 03.01.2002, the endorsement was made by the Revenue Officer to send the application for the remarks of the Revenue Inspector. However, the learned Government Advocate (Crl. Side) would contend that the mere fact that the said application was directed to be sent to the accused by the endorsement of the Revenue officer dated 03.01.2002, shall not be enough to hold that the respondent herein/accused was not aware of such an application and that he could have demanded illegal gratification expecting the application to come to his table for his remarks and calculation. Of course, it is true that such a thing is also probable. However, the said aspect should be kept in mind while dealing with the evidence regarding the alleged commission of offence during the trap operation. It should also be kept in mind that Sagayameri has not been examined as a witness on the side of the prosecution and no reason has been assigned for not examining her on the side of the prosecution. 17. It is admitted by P.W.1 that the election to the Municipal Council was held in the month of October 2001 and his wife Sagayameri was elected to Ward No.28 as an independent candidate. He has also admitted that he had acquaintance with all the officers of Coonoor municipality. He has also admitted https://hcservices.ecourts.gov.in/hcservices/ that there was a long-standing friendship between himself and one Wood Coat Anand. It is also admitted by P.W.1 that the said Wood Coat Anand was in huge arrears of tax to the municipality and that it was the respondent herein/accused who got arrest warrant against the said person. It is the case of the respondent herein/accused that only at the instigation of the said Wood Coat Anand, P.W.1 foisted the case against the respondent herein/accused with the help of his friends in the Vigilance and Anti-corruption wing of the police department. P.W.1 has candidly admitted that P.W.7, the then Deputy Superintendent of Police, Vigilance and Anti-corruption was known to him and they were close enough to shake hands whenever they would meet. If the evidence of P.W.1 is considered in its entirety, the submission made by the learned counsel for the respondent herein/accused that he is not a reliable witness and he is capable of manipulating things, becomes sustainable or at least probable. Ex.P1-application for property tax assessment was given in the name of Sagayameri. But during cross-examination, P.W.1 has admitted that he himself put the signature of his wife Sagayameri in Ex.P1-application. As he had made such a change of version during cross-examination by the learned counsel for the respondent herein/accused, the trial court granted permission to the Public Prosecutor to treat him hostile and cross-examine him. Even during such cross-examination on behalf of the State, he again asserted that it was he, who put the signature of his wife Sagayameri in Ex.P1-application. Again while he was cross- examined further on behalf of the respondent herein/accused admitted that his wife would not sign as the signature found in Ex.P1. Therefore, the said signature alone has been marked as Ex.D3. When a person has gone to the extent of admitting that he himself forged the signature of his wife as the applicant, his credibility is impaired to a great extent. 18. In Ex.P3-complaint it has been stated that there was a shed in the property regarding which property tax assessment was sought for in Ex.P1-application. Admittedly, if there was any superstructure of a minimum value, the property tax for the same would be lesser than the property tax that would be levied for a vacant site. It is the contention of the respondent herein/accused that P.W.1 wanted him to make an assessment of property tax at a lesser rate on the ground that the property was not a vacant site and a superstructure of lesser value was there in the property and that when the same was not accepted, at the instigation of Wood Coat Anand, P.W.1 foisted the case against the respondent herein/accused. It is the clear admission of P.W.1 that no shed was in existence in the above said property at the time of submission of the application as noted in Ex.P3- complaint. P.W.1 has also admitted that Ex.D1 series are the photographs of the property of his wife regarding which Ex.P1 application had been given and that Ex.D2 series are their negatives. It is obvious from the said photographs that no superstructure was found in the said property. P.W.1 has also https://hcservices.ecourts.gov.in/hcservices/ clearly admitted that the property remained a vacant site and there was no shed in the said property. In Ex.P1-application, except the signature of the applicant and the door number of the property, no other particular were provided. All the columns had been left blank. Even in the Form 'A' attached to the application, all the columns except door number had been left blank. Therefore, it is quite probable that an attempt would have been made to get the property assessed for property tax as if it had a small shed in it so that it would attract a lesser amount as property tax, whereas in fact it was a vacant site. Therefore, the motive for foisting the case against the respondent herein/accused, as contended by him, becomes more probable. Apart from that, the de-facto complainant, on whose complaint the case was registered and the trap was allegedly organised, has betrayed the prosecution by admitting the contention of the respondent herein/accused that he wanted to get him trapped in a criminal case and for that purpose he gave a false complaint against the respondent herein/accused at the instigation of the above said Wood Coat Anand. For better appreciation, the following excerpts from his evidence in the vernacular language is extracted here under. "cl;nfhl; Mde;jpid ifJ bra;tjw;F vjphp jhd; fhuzk; vd;w tpguk; vdf;F gpd;dhy; bjhpa te;jJ vd;why; rhpjhd;/ cl;nfhl; Mde;j; vg;goahtJ M$h; vjphpia khl;l itf;fntz;Lbkd;gjw;fhf bgha;ahf xU g[fhiu bfhLf;f bra;jhh; vd;Wk; mij gpd;dhy; bjhpe;Jbfhz;nld; vd;why; rhpjhd;/ " 19. When the very foundation of the prosecution case is shaken by the admission of P.W.1 that he gave a false complaint against the respondent herein/accused at the instigation of the above said Wood Coat Anand, the further case of the prosecution regarding the trap should also be approached with a greater caution than the one required relating to the complaint-Ex.P3. Of course, there are evidence in the form of depositions of P.W.1, P.W.3 and P.W.7 to the effect that, after the registration of the case based on the complaint of P.W.1 marked as Ex.P3, P.W.3-Anish Ahamed, an employee in Tamil Nadu Electricity Board and one Shivasubramaniam samraj from Horticulture Department were invited by P.W.7 and in their presence a demonstration was made to show how the phenolphthalein test would work. The requisition for sending the material objects for chemical analysis to the forensic laboratory has been marked as Ex.P16. The covering letter of the trial court sending the said articles to the forensic laboratory for chemical examination has been marked as Ex.P12. The sample Sodium Carbonate and sample phenolphthalein, the Sodium Carbonate solution used at the time of trap for the fingers of the respondent herein/accused and such a solution used for the pocket of his pants were also sent along with the requisition. The Sodium Carbonate solution used for testing the right hand fingers of the respondent herein/accused contained in https://hcservices.ecourts.gov.in/hcservices/ a sealed bottle marked as "S-1", a similar solution used for testing the fingers on the left hand of the respondent herein/accused marked as "S-2" and the Sodium Carbonate solution used for testing the pants pocket of the respondent herein/accused marked as "S-3" in the bottle had been sent to the forensic laboratory along with the samples of Sodium Carbonate powder used for the phenolphthalein test marked as 'A' and the sealed cover containing controlled samples of phenolphthalein powder used for the test at the time of trap marked with the marking 'B'. The sample Sodium Carbonate and sample phenolphthalein powder have been marked as M.O.1 and M.O.2, whereas the Sodium Carbonate used for testing the fingers of the accused and the pants pocket of the accused have been marked as M.Os.5 to 7. The report of the Scientific Assistant, counter signed by the Scientific officer and also by the Assistant Director of Forensic Laboratory has been marked as Ex.P13. Under Ex.P13, M.O.1 was certified to be Sodium Carbonate, M.O.2 was certified to be phenolphthalein powder and M.Os.5, 6 and 7 were certified to contain both Sodium Carbonate and phenolphthalein. As already pointed out, the demonstration shown by the police officers to the witnesses for the said demonstration, namely P.Ws.3 and 1 is not disputed. However, there is a dispute regarding the manner in which the phenolphthalein test was conducted during the course of trap operation. 20. It is the contention of the respondent herein/accused that he did not make any demand and he did not receive any money as illegal gratification from P.W.1. It is his further contention that the entire trap operation was a stage managed show organised by P.W.7 who was a friend of P.W.1 and that P.W.1 did it at the instigation of one Wood Coat Anand. The learned counsel for the respondent herein/accused pointed out the admission made by P.W.1 in this regard that the respondent herein/accused took effective steps to collect the arrears of tax due to the municipality and in the case of the above said Wood Coat Anand he had not only obtained a non-bailable warrant but also executed the same and produced him before the court. The learned counsel drew the attention of the court to the admission made by P.W.1 that the said Wood Coat Anand wanted to take revenge on the respondent herein/accused and at his instigation he lodged a fase complaint against the respondent herein/accused and that the police officer (Deputy Superintendent of Police) who registered the case and organised the trap, namely P.W.7-Gibson was a friend of P.W.1. In the above