IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.A.No.175 of 2004 S.Annamalai ... Appellant/Accused Vs State represented by Inspector of Police, Vigilance and Anti-Corruption Salem ... Respondent Prayer :- Criminal Appeal filed under Section 374 Cr.P.C. against the judgment of the learned Chief Judicial Magistrate cum Special Judge, Salem dated 21.1.2004 made in Special C.C.No.74/1994. For Appellant : Mr.S.Ashok Kumar, Senior Counsel for Mr.K.Govi Ganesan For Respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor. J U D G M E N T The challenge in this appeal is to the judgment of the learned Special Judge cum Chief Judicial Magistrate, Salem dated 21.1.2004 made in Special C.C.No.74/1994, convicting the appellant for the offence under Section 7 of the Prevention of Corruption Act,1988 and sentencing him to undergo two years rigorous imprisonment and to pay a fine of Rs.1,500/- in default to undergo 3 months rigorous imprisonment and also convicting him for the offence under Section 13 (2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to undergo two years rigorous imprisonment and to pay a fine of Rs.1,500/- in default to undergo 3 months rigorous imprisonment. The sentences are ordered to run concurrently. 2. The accused faced the trial under the following backdrop: 2.1.The accused was working as Special Thasildar (Distress Relief Scheme), Metur Taluk at Mettur during the year 1993. PW3 is a resident of Kunjandiyur Village, Mettur Taluk. She was residing in a house situated in poromboke land. She has been blessed with three children. She has preferred an application for grant of Distress Relief for an amount of Rs.5,000/-, due to the death of her husband on 21.3.1993. Exs.P8, P10 & P12 are the application and other connected files in respect of the said application. Six months thereafter, the writer of the Village Administrative Office met PW3 and asked her to come to the Taluk Office. She went to the Taluk Office and the accused was present at that time. PW3 was asked to come after some time. Thereafter, she went again to the Taluk Office and met the accused. Along with PW3 some other persons also met the accused and they have given the amounts. PW3 was not having any https://hcservices.ecourts.gov.in/hcservices/ amount and the amount was demanded from her also. The accused demanded Rs.300/- but PW3 expressed her inability. Thereafter, the accused told her that he would look into the matter. When she enquired about her application, the accused stated that her application cannot be separated. Thereafter, PW3 has decided to give a report to the Vigilance police. On 20.9.1993 at 10.00 a.m., PW3 went to the Vigilance and Anti-Corruption Office and a statement was recorded by PW11, the Inspector of Police from PW3. The said report was read over to PW3 and her left hand thumb impression was taken. PW11 registered the case in Crime No.2/AC/93 for the offence under Section 7 of the Prevention of Corruption Act, 1988. Ex.P17 is the F.I.R. 2.2. PW11 decided to conduct a trap and summoned two witnesses namely PW2, an Assistant Executive Engineer from the Public Works Department and another witness one Thiagarajan from the Industries Department. They appeared before him on 11.15 a.m. He has introduced the said witnesses to PW3 and asked them to read the F.I.R. PW3 produced the amount of Rs.300/- containing two 100 rupee notes and one 50 rupee note and five 10 rupee notes, M.O.1 series to PW11. PW11 demonstrated the phenolphthalein test and instructed PW3 to hand over the amount only in the event of the accused demanding the amount. PW3 was instructed to give the prearranged signal after handing over the amount. PW2 was asked to accompany with PW3 and to watch the transactions to be taken place between PW3 and the accused. The numbers of the currency notes have been noted down. PW11 handed over the currency notes smeared with phenolphthalein powder to PW3. PW11 prepared the Entrustment Mahazar, Ex.P2 signed by PW2 and others and the left hand thumb impression was affixed by PW3. 2.3. The raiding party left for the office of the accused at 1.15 p.m and reached the office of the accused at 2.15 p.m. The raiding party under PW11 were standing near the police station near the office of the accused. PWs.2 & 3 went inside the office of the accused. They returned at 6.00 p.m and informed that the accused was not present in the office and the other persons working in the said office asked her to come on the next day. PW11 prepared the mahazar in respect of the proceedings held on 20.9.1993 under Ex.P3. 2.4. PW11 summoned the witnesses again on 21.9.1993. As the currency notes were already smeared with phenolphthalein powder, the same was not smeared again. PW11 prepared the Entrustment Mahazar, Ex.P4. The raiding party left along with PW3 and other witnesses at 12.00 noon and reached the office of the accused at Mettur at 1.15 p.m. PWs.2 & 3 were asked to go to the office of the accused at 1.30 p.m. The raiding party under PW11 were waiting near the State Bank. 2.5. While PWs.2 & 3 entered inside the office of the accused, they were informed that the accused was not present. They were waiting at the office of the accused, as the accused has left for his lunch. At 3.30 p.m the accused came to the office. The accused enquired PW3 about the identity of PW2. PW3 informed that PW2 is the building mason and he has come for the purchase of articles. PW3 https://hcservices.ecourts.gov.in/hcservices/ further informed that she had obtained the amount only from him. PW3 asked about her application. The accused informed her that only in the event of paying the amount, her application would be processed. PW3 in-turn informed the accused that she has brought the amount of Rs.300/- as asked by him and handed over the said amount to the accused. The accused counted the amount and put it into his left side pocket of his pant. The accused informed PW3 that her application would be processed. Thereafter, PWs.2 & 3 came out of the office of the accused and PW3 gave the prearranged signal to PW11, the Inspector. 2.6. PW11 and other members of the raiding party rushed to the office of the accused. PW3 identified the accused to PW11. PW11 introduced himself and others to the accused. He has conducted the phenolphthalein test in respect of the fingers of both the hands of the accused and the test proved positive. The solutions have been taken in two bottles namely M.O.5 and M.O.8. Thereafter, PW11 questioned the accused about the amount received by him from PW3. The accused took out the currency notes from his left side pant pocket and handed over to PW11. PW11 recovered the currency notes, M.O.1 series and the numbers of the currency notes were compared with the numbers already mentioned in the Mahazar, Ex.P3 and the same tallied. PW11 also subjected the pant pocket of the accused to phenolphthalein test and the same also proved positive and the solution in respect of that test was taken in a bottle, M.O.7. PW11 enquired the accused about the application of PW3, for which the accused replied that the said application was with the Village Administrative Officer. The pant of the accused, M.O.8, was also recovered under Ex.P5. He has also prepared the Rough Sketch, Ex.P8. Thereafter, PW11 and others went to the VAO's office. He has produced the application Ex.P8. PW11 seized the said application under Ex.P7. He has also searched the house of the accused and no incriminating material recovered from the house of the accused. Ex.P9 is the Search List. The trap proceedings have been recorded under Mahazar, Ex.P5, by PW11. The accused was arrested by PW11 at 6.10 p.m and at 11.30 p.m, he has released the accused. 2.7. PW12, another Inspector, took up further investigation. He has examined the accused and recorded his statement. He has examined PW3, PW4 and others. He has sent the material objects to the Court with a requisition to send the same for Chemical Examination. He has examined PW11, 5 and others. On completion of investigation, he has obtained the Sanction Order, Ex.P1, from the District Collector, PW1 and thereafter, he has laid the charge sheet against the accused for the offences under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. 3. The prosecution in order to substantiate its case, examined PWs.1 to 12, filed Exs.P1 to P18 and marked M.Os.1 to 8. 4. When the accused was questioned under Section 313 of the Criminal Procedure Code in respect of the incriminating circumstances appearing against him through the evidence adduced by the https://hcservices.ecourts.gov.in/hcservices/ prosecution, he has come forward with the version of total denial. He has not examined any witness on his side and also not marked any document. 5. The learned Trial Judge, on consideration of the entire evidence adduced by the prosecution, has found the accused guilty and convicted and sentenced him as stated above. Hence the present appeal. 6. Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellant, while assailing the impugned judgment of conviction contended that the prosecution has not proved its case by adducing clear and consistent evidence. It is contended that the prosecution has miserably failed to prove the demand of illegal gratification said to have been made by the accused. The learned Senior Counsel pointed out that in respect of the demand said to have been made prior to the trap, the prosecution case is left with the sole testimony of PW3 and there is no corroboration for her version. It is further contended that even at the time of trap, the presence of the trap witness, PW2, is highly doubtful and as such there is no corroboration for the demand of illegal gratification said to have been made by the accused at the time of trap. The learned Senior Counsel submitted that as per the version of PW3, the tainted currency notes was not handed over by her to the accused and the same was handed over only by PW6, Sivaprasam and as such neither the demand nor the receipt of illegal gratification is not proved by the prosecution. It is contended that as far as PW2, the trap witness is concerned, it is the case of the defence that he was not at all present at the time of trap and further even assuming that he was present at the time of trap, there is no corroboration for such version. The learned Senior Counsel pointed out PW2 cannot be considered to be an independent witness as he is a member of the raiding party and he is interested in the success of the trap and his evidence cannot be relied without any corroboration from any other independent witness. 7. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor contended that there is no infirmity or illegality in the impugned judgment of conviction. It is contended that the evidence of PWs.2 & 3 is clear and consistent in respect of the demand and as well as in respect of the receipt of illegal gratification. The learned Additional Public Prosecutor pointed out that PW3 has come forward with a clear and consistent version during her chief examination and as well as during her initial cross examination and there is absolutely no ground made out for rejecting her evidence. It is further contended that the present version of the defence is unbelievable for the simple reason that PW3 has categorically denied in her initial cross examination that only PW6 has handed over the amount of Rs.300/- as the said amount was asked by the accused. The learned Additional Public Prosecutor also submitted that merely because PW3 has turned hostile during her further cross examination conducted after a period of four months, her categorical statement https://hcservices.ecourts.gov.in/hcservices/ made in the chief examination and as well as in the initial cross examination cannot be excluded from the consideration of the Court. It is further contended that the accused has not come forward with any reasonable and probable explanation for the receipt of the tainted currency notes and he has also not given any explanation even during the course of questioning under Section 313 of the Criminal Procedure Code. The phenolphthalein test conducted in respect of the fingers of both the hands of the accused and as well as in respect of the pant pocket also proved positive and as such, the prosecution having proved the receipt of the tainted currency notes, is entitled to place reliance on the presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988. The learned Additional Public Prosecutor pointed out that the accused has not rebutted the said presumption by offering any probable and reasonable explanation. 8. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire evidence available on record and perused the impugned judgment of conviction. 9. The prosecution heavily placed reliance on the evidence of (a) PW3, who has given the report (b) PW2, the trap witness who has accompanied with PW3 at the time of handing over the tainted currency notes to the accused and (c) PW11, the Inspector of Vigilance, who has conducted the trap and recovered the tainted currency notes, M.O.1 series from the accused. It is pertinent to note that PW3 has come forward with a clear and categorical version during the course of chief examination and as well as during the course of initial cross examination implicating the accused in respect of the demand and as well as in respect of the receipt of illegal gratification. The perusal of the records would reveal that PW3 was initially examined on 14.8.2002 in chief and as well as in cross and thereafter, she was examined after a period of four months and only during such course of further cross examination, she has changed her version contrary to her earlier version in the chief and as well as in the initial cross examination. 10. It is the case of the prosecution that the accused who was working as Special Thasildar (Distress Relief Scheme) has demanded Rs.300/- from PW3 for sanctioning the Distress Relief amount of Rs.5,000/- in view of the death of PW3's husband. Though PW3 has not stated a specific date on which the accused demanded the illegal gratification prior to the trap in the report, Ex.P11 or in her evidence, on that score her evidence cannot be discorded as she has come forward with a clear and consistent version in respect of meeting the accused and the accused demanding the bribe amount prior to the trap. As per her evidence, she has met the accused twice and on both the occasions the accused demanded the illegal gratification to the tune of Rs.300/-. It is seen that even at the time of trap while she was accompanied by PW2 and met the accused, the accused asked her whether she has brought the amount as asked by him and thereafter, she has given the amount of Rs.300/- which was received by the accused and kept in his pant pocket. As already pointed out https://hcservices.ecourts.gov.in/hcservices/ PW3 was firm and clear even during the course of initial cross examination and she has emphatically denied the suggestions put by the defence to the effect that the accused never demanded the bribe amount. It is curious to note that only during the course of further cross examination which was conducted after a period of four months, she has changed her version and in respect of the said changed version to the effect that the amount was handed over only by PW6, VAO, the answers given by PW3 in the cross examination is not clear and consistent. At one stage she has stated that one Venkatachalam alone has handed over the amount to the accused. It is well settled by a catena of decisions of the Hon'ble Apex Court that the evidence of an hostile witness cannot be rejected in toto and any portion either in favour of the prosecution or in favour of the defence can very well be placed reliance by the Court. 11. At this juncture, it is relevant to refer the following decisions of the Hon'ble Apex Court: 11.1. The Hon'ble Apex Court in Sat Paul v. Delhi Administration reported in AIR 1976 SC 294, has held hereunder: "51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of that witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it...." 11.2. In yet another decision in Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P with Kaushal Kishore Singh @ Anr. v. State of U.P reported in 2006 AIR SCW 421, the Hon'ble Apex Court has held hereunder: "It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to be extent his version is found to be dependable on a careful scrutiny thereof." The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case. As far as the case on hand is concerned, as already pointed out PW3 has come forward with a clear and consistent version in her chief https://hcservices.ecourts.gov.in/hcservices/ examination and as well as in her initial cross examination implicating the accused in respect of the allegation of demand and receipt of illegal gratification. Therefore, the said version of PW3 cannot be excluded from the consideration of this Court. 12. As far as PW2, the trap witness is concerned, though it is pointed out by the learned Senior Counsel for the appellant that he is an interested witness as he is a member of the raiding party and therefore, he is interested in the success of the trap, his evidence cannot be discorded on that score and the only requirement for the Court is to consider such evidence with great care and caution. The careful scrutiny of the evidence of PW2 makes it crystal clear that he has come forward with a clear and consistent version. The defence has not at all shattered his evidence during the course of his cross examination. He has clearly stated about entering into the office of the accused along with PW3 and the accused asking PW3 whether he has brought the amount and thereafter, PW3 handing over the amount of Rs.300/-, which was received by the accused and after counting the said amount, the accused put it into his left side pant pocket. The fact remains that the phenolphthalein test conducted in respect of the fingers of both the hands of the accused and as well as in respect of the pant pocket proved positive. Though it is the defence of the accused that he has received the amount only from PW6, Sivaprakasam, the defence has not put any such suggestion to PW2. On the other hand, it was suggested to PW2 that he was not at all present at the office of the accused at the time of trap. As already pointed out PW3 has changed her version during the course of further cross examination conducted after a period of four months to the effect that the amount was handed over by one PW6, Sivapraskam and she has emphatically denied such statement during the course of further cross examination. Therefore, the defence cannot place reliance on her evidence. On the other hand, the presence of PW2 is spoken by PW11, the Inspector, who has conducted the trap and he has instructed PW2 to accompany with PW3 and to watch the transactions to be taken place between the accused and PW3. It is seen that PW2 has also signed in the Entrustment Mahazar, Ex.P4 and the Mahazar prepared during the course of trap namely Ex.P5 and the said factor establishes the presence of PW2 at the time of trap. 13. The evidence of PW11, the Inspector, is also clear and cogent in respect of all aspects right from registering the F.I.R till the time of conducting the trap. The accused has not given any explanation immediately at the time of the recovery of the tainted currency notes, M.O.1 series. As already pointed out the phenolphthalein test conducted by PW11 in respect of the fingers of both the hands and as well as the pant pocket of the accused proved positive. In view of the recovery of the tainted currency notes, the presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 is necessarily to be drawn against the accused. Of course, the said presumption is a rebuttable one. But, in the case on hand, the accused has not at all rebutted the presumption by offering any reasonable and probable explanation or by eliciting any answers during the course of cross examination from the witnesses or https://hcservices.ecourts.gov.in/hcservices/ even by preponderance of probabilities. In view of all the above said factors, this Court has no hesitation to hold that the prosecution has proved its case beyond reasonable doubt in all aspects. The learned trial Judge has rightly found the accused guilty and convicted and sentenced the appellant as stated above. 14. Accordingly, the conviction of the appellant/accused for the offence under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 by the judgment of the learned Chief Judicial Magistrate cum Special Judge, Salem dated 21.1.2004 made in Special C.C.No.74/1994. is hereby confirmed. 15. However, considering the question of sentence, it is pointed out by the learned Senior Counsel for the appellant that the occurrence said to have taken place as early as in the year 1993 and the accused had undergone the ordeal of trial and he is now aged about 72 years and he has also lost his job, as he has been dismissed from his service in view of his conviction in this case. The learned Senior Counsel submitted that the sentence of two years rigorous imprisonment awarded in respect of the offence under Section 7 and as well as for the offence under Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 may be reduced to one year simple imprisonment in respect of each of the offences. The learned Senior Counsel further submitted that the petitioner is entitled to seek the relief of conversion of simple imprisonment to one of fine as per the provision under Clause (d) of Section 433 of the Criminal Procedure Code for commuting the sentence. In support of such contention, the learned Senior Counsel placed reliance on the following two decisions of the Hon'ble Apex Court : (i)Badri Prasad v. State of M.P. reported in 1995 Supp (4) SCC 682 (ii) N.Sukumaran Nair v. Food Inspector, Mavelikara reported in (1997) 9 SCC 101 It is pointed out by the learned Senior Counsel that the above said two decisions of the Hon'ble Apex Court is also followed by this Court