BAIL SLIP The Appellants /Accused Nos.5,9,2,7,4 and 8 viz M.Sathiyamoorthy S.Muthukumaraswamy, T.M.Selvaganapathy, N.Janarthanan, H.M.Pandey and S.Doraiswamy respectively were directed to be released on bail as per the order of this Court dated 29.6.2000 and made in Crl.M.P.No.3649,3650,3674,3675,3682 and 3692 of 2000 in Crl.Appeal.458,453,454,456,457 and 452 of 2000 respectively. The Appellant in Crl.Appeal No.455/2000/Accused No.6 viz., N.Haribhaskar was directed to be released on bail as per the order of the Hon'ble Supreme Court of India dated 26.6.2000 in Crl. Appeal No.503/2000. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 21.8.2009 Coram The Hon’ble Mr.Justice M.JEYAPAUL Criminal Appeal Nos.452 to 458 and 498 of 2000 M.Sathiyamoorthy, I.A.S. Appellant in C.A.No.452/2000/Accused No.5 S.Muthukumaraswamy Appellant in C.A.No.453/2000/Accused No.9 T.M.Selvaganapathy Appellant in C.A.No.454/2000/Accused No.2 N.Haribhaskar Appellant in C.A.No.455/2000/Accused No.6 N.Janarthanan Appellant in C.A.No.456/2000/Accused No.7 H.M.Pandey Appellant in C.A.No.457/2000/Accused No.4 S.Doraisamy Appellant in C.A.No.458/2000/Accused No.8 vs. The State of Tamil Nadu rep by the Deputy Superintendent of Police, CBCID, Headquarters, Chennai 600 002. Respondent in C.A.Nos.452 to 458 of 2000/Complainant https://hcservices.ecourts.gov.in/hcservices/ State rep by the Deputy Superintendent of Police, Crime Branch CID, Chennai-2. (CBCID HQ Cr.No.21/1996) Appellant in C.A.Nos.498/2000/ Complainant vs. 1. Selvi.J.Jayalalitha 2. Thiru.T.M.Selvaganapathy 3. Thiru.H.M.Pandey, I.A.S. 4. Thiru.M.Sathiyamoorthy, I.A.S. 5. Thiru.N.Haribhaskar, I.A.S. 6. Thiru.K.Janarthanan 7. Thru.S.Duraisamy 8. Thiru.S.Muthukumarasamy Respondents in C.A.Nos.498/2000 (Accused Nos.1,2 and 4 to 9 For appellant in C.A.Nos.452,and for the 4th Respondent in CA.No.498/2000 : Mr.K.S.Dinakaran For Appellant in C.A.No.454 & 455/2000 and for Respondent 2 & 5 in C.A.No.498/2000 :Mr.K.S.Dinakaran for Mr.S.Parthasarathy For appellants in C.A.Nos.453 and 456 of 2000 and for the Respondents No.8 and 6 in C.A.No.498/2000 : Mr.S.Shanmugavelayutham, Senior Counsel for Mr.Dhamodharan in C.A.No,453/2000 and for Mr.R.Anand in C.A.No.456/2000. For appellant in C.A.No.457/2000 and for the 3rd Respondent in C.A.No.498/2000 : Mr.B.Sriramulu, Senior Counsel for Mr.B.Rabu Manohar For appellant in C.A.No.458/2000 and for the 7th Respondent in C.A.No.498/2000 : Mr.A.L.Somayaji, Senior Counsel for Mrs.Gita Asokan https://hcservices.ecourts.gov.in/hcservices/ For respondent in C.A.Nos.452 to 458 of 2000 : Mr.P.Kumaresan, Public Prosecutor For appellant in C.A.Nos.498/2000 : Mr.P.Kumaresan, Public Prosecutor For Ist respondent in C.A.No.498/2000 : Mr.Navaneethakrishnan Prayer:- Criminal Appeal Nos.452 to 458 of 2000 against the judgment and sentence dated 30.5.2000 made in Spl.C.C.No.15 of 1997 on the file of the II Special Judge/XII Additional Sessions Judge, Chennai. Criminal Appeal No.498 of 2000 is filed against the judgment dated 30.5.2000 made in Spl.C.C.No.15 of 1997 on the file of the II Special Judge/XII Additional Sessions Judge, Chennai and praying to set aside the order of acquittal acquitting A1, A2 and A4 to A9 under charge No.1 for the offence under section 120-B of the Indian Penal Code , section 13(2) read with 13(1)(c)(d)(ii)(iii) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code, sections 409, 409 read with section 109 of the Indian Penal Code , A1 under charge No.2 for the offence under section 13(2) read with section 13(1)(d)(ii) and (iii) of the Prevention of Corruption Act, 1988 and A4 and A5 under charge Nos.7, 10 and 13 for the offence under section 13(2) read with section 13(1)(d)(ii) and 13(1)(c) of the Prevention of Corruption Act, 1988 and section 409 of the Indian Penal Code . COMMON JUDGMENT The First accused Selvi J.Jayalalitha, the then Chief Minister was acquitted of all the charges framed against her. Aggrieved by the judgment of acquittal, the State has preferred Criminal Appeal No.498 of 2000 as against her. The second accused T.M.Selvaganapathy, the fourth accused H.M.Pandey, the fifth accused M.Sathiyamoorthy, the sixth accused N.Haribhaskar and the seventh accused K.Janardhanan were convicted for offence under section 13(2) read with section 13 (1)(d)(ii) of the Prevention of Corruption Act (3 counts), (2 counts), (2 counts) (1 count) and (3 counts) respectively and were sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.10,000/= in default to undergo a further period of three months simple imprisonment for each count. The eighth accused Duraisamy and the ninth accused Muthukumarasamy were convicted for offence under section 13(2) read with section 13(1)(d)(ii) of the https://hcservices.ecourts.gov.in/hcservices/ Prevention of Corruption Act and section 109 of the Indian Penal Code and were sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.10,000/= in default to undergo a further period of three months simple imprisonment each. All the aforesaid accused viz., A2 and A4 to A9 have filed Criminal Appeal Nos.452 to 458 of 2000. 2. The charges as against the late third accused V.R.Nedunchezhian were quashed. The tenth accused N.Sasikala and the eleventh accused S.R.Baskaran were acquitted of the charges framed against them. But, the State chose not to prefer any criminal appeal as against the order of acquittal recorded as against those accused. 3. As all these appeals have arisen out of the very same judgment in Special C.C.No.15 of 1997, all these cases were taken up for common disposal. 4. It is the case of the prosecution that on 12.7.1995, the second accused T.M.Selvaganapathy, who was the Minister for Rural Development Department sent a Cabinet Note on the subject of providing colour television sets to the rural habitations with fifty families and above for a discussion on the basis of the note put up by A5 Sathyamurthy, the Director of Rural Development. The Cabinet Note itself would read that a total fund of 67.72 crores at the rate of Rs.15,000/= per colour television set was required for executing the scheme proposed thereunder. It is alleged that the price of Rs.15,000/= per colour television set was fixed without any statistical analysis or enquiry. The Cabinet Note was placed before the Council of Ministers presided by the first accused in the meeting that was held on 25.7.1995. The Cabinet approved the proposal to supply colour television sets to all rural habitations with fifty families. It has also been proposed to replace all black and white television sets available in the panchayat with the colour television sets. The source for mobilisation of such a fund also was discussed and a decision was taken. On 15.8.1995, the first accused Selvi.J.Jayalalitha, during her Independence Day Speech, announced that 50,000 colour television sets would be provided to rural areas with the population of fifty families and above by relaxing the existing rules. Thereafter, on 7.9.1995, A5 Sathyamurthy addressed a letter to the Director of Industries and Commerce requesting him to furnish the updated list of television manufacturers in the State of Tamil Nadu as well as from other States. On 4.10.1995, A4 H.M.Pandey joined as Secretary, Rural Development Department. Letters were despatched to 197 colour television manufacturers by certificate of posting on 6.10.1995 requesting them to fill up the forms sent https://hcservices.ecourts.gov.in/hcservices/ alongwith the letter and despatch the same on or before 20.10.1995. But, only six companies viz., BPL, Videocon, Uptron, Solidaire, Keltron and ECIL alone responded and submitted filled in forms personally. They also exhibited their sample colour television sets. All the sample sets were evaluated on 20.10.1995 by the Evaluation Sub Committee. On 21.10.1995, 26,10,1995, 27.10,1995, 29.10.1995 and 31.10.1995, communications were sent to Television Approval Committee and the aforesaid six colour television manufacturing companies. 5. The Television Approval Committee consisted of A4 H.M.Pandey, Secretary, Rural Development Department as Chairman, A5 M.Sathyamurthy, Director Rural Development as Member Secretary and PW4 Mr.Machendranathan, Commissioner of Town Panchayat as a Member. During the course of negotiations, the aforesaid six companies quoted the price of a colour television set ranging from Rs.14,800/= to Rs.16,000/=. Mr.Machendranathan, PW4 informed the Television Approval Committee that on an enquiry, he came to know that the price of a colour television set was about Rs.12,000/=. The representative of ECIL Television agreed to supply the colour television at the rate of Rs.14,500/= per set. The said price was agreed by all the other five companies. Mr.Machendranathan, PW4 reiterated that the price of a colour television set was only Rs.12,000/=. At this juncture, PW27, Mr.Jayaraj, a representative of Videocon Television, in fact, agreed to sell the colour Televisions at Rs.12,500/= provided the entire order was placed with them. Though this aspect of the matter was brought to the notice of the Television Approval Committee, the Committee refused to accept the same. The representative of Uptron and Videocon Television Companies have deposed before the court that they were introduced to A4 H.M.Pandey by A8 Duraisamy at the State Guest House. A4 promised PW12 Ganesh Kanna, a representative of Uptron India Limited that he would render help to them to obtain the order. He also informed PW12 to keep in touch with A8 Duraisamy. The latter demanded a sum of Rs.1750/= for A4 H.M.Pandey, A5 M.Sathyamurthy and for himself and sum of Rs.1000/= for K.Janardhanan, A7, who was the Personal Assistant to the second accused T.M.Selvaganapathy. PW27 Jayaraj, the representative of Videocon also met the 4th accused H.M.Pandey and the 5th accused M.Sathyamurthy on 21.10.1995. The fourth accused H.M.Pandey enquired from PW27 as to how much money the Videocon Company would offer per set. PW27 informed him that it all depended upon the quantum of orders placed with them for supply of television sets. The 4th accused reiterated saying that the quantum of the order would depend only on the amount offered by them to him per set. A4 also casually referred that there was a chance for fixing the price at the rate of Rs.15,000/= per set and made a demand of Rs.400/= per Television set https://hcservices.ecourts.gov.in/hcservices/ for him. This was agreed by the representative of the Videocon Company. A2 to A9 engaged themselves in demanding money from the Television Companies and negotiated with them the bribe amount. The Minutes concerning the Television Approval Committee meetings held on 21.10.1995, 26.10.1995, 27.10.1995, 29.10.1995 and 31.10.1995 were drawn as common Minutes. The normal procedure of preparing separate Minutes and intimating them to the individual Members of the Television Approval committee was not adhered to. The Minutes of the Television Approval Committee was sent on 10.11.1995 as evidenced by Ex.P20. 6. On 13.11.1995, the Rural Development Department sent a circular note to the Finance Department under Ex.P28. On 16.11.1995, the Finance Department raised the following objections under Ex.P12. 1) Open Tenders should have been called for according to the order issued in G.O.Ms.No.708 Finance (BPE) dated 22.8.1994. 2) Bulk order should earn discount only and not result in increase in price. 3) The price fixed should be compared with the ruling market price to be ascertained from the Commissioner of Statistics. 4) The proposal to pay 100% advance of the television cost by the Department of Rural Development is quite against the orders issued in G.O.Ms.No.708 Finance (BPE) dated 22.8.1994. 7. On 23.11.1995, the Department of Rural Development circulated a note, Ex.P14 by way of reply to the objections raised by the Department of Finance. The Finance Department reiterated its earlier stand. As the purchase of the Television sets involves a sum of Rs.75 crores, a Purchase Committee should have been constituted in consultation with the Finance Department and the procedure adumbrated for Open Tender system alone should have been followed, it has been additionally raised by the Finance Department. 8. The first accused called for a meeting at the camp office on 30.11.1995 in which A2, A4, A5, A6, PW5 and PW7 did participate. A2 explained to A1 about the views of both the Rural Development Department and the Finance Department. https://hcservices.ecourts.gov.in/hcservices/ 9. PW5 was thereafter summoned inside the meeting room. PW5 has deposed that A1 heard the view of both the Rural Development Department and the Finance Department with respect to the price and ultimately accepted the proposal mooted by the Rural Development Department. A1 directed PW5 to prepare the note as per the decision taken by her. Thereafter, A4 instructed PW10, the Deputy Secretary attached to Rural Development Department to prepare a circulation note, Ex.P17 based on the decision taken by the first accused. A circulation note was prepared and signed by A4 on 5.12.1995. 10. PW6 took charge as Secretary, Rural Development Department on 6.12.1995. PW4 informed him that the colour television sets have been proposed to be purchased by paying higher price. PW5 perused the entire file on 7.12.1995 and having found that the decision taken on 30.11.1995 by the first accused was not properly recorded, communicated a routine note, Ex.P18 and sent it to the Rural Development Department. On 9.12.1995, PW6 prepared the final note, Ex.P19 which was signed by PW5 on 9.12.1995. A2 and A6 approved the same on 10.12.1995 and A1 and the deceased A3 approved the same on 11.12.1995. 11. The order in G.O.Ms.No.209 marked as Ex.P10 was issued on 13.12.1995. Thereafter, the Agents of various television companies paid commission to A2, A4, A5, A6, A7 and 9 having received the money from Department of Rural Development. Ganesh Kanna, PW12 and Sivasankaran, PW14 have spoken about the bribe paid for the orders placed for supply of colour television sets by Uptron. V.K.K.Dasan, PW22 speaks about the bribe paid for the supply of colour television sets by Keltron. Jayaraj, PW27 deposes about the bribe paid for the orders placed for supply of television sets by Videocon. Balaji, PW37 and Ravindran, PW58 depose about the bribe paid for the orders placed for the supply of colour television sets by BPL and Vaikuntam, PW63 speaks about the bribe paid for the orders placed for the supply of colour television sets by Solidaire. Padmanabhan, PW76 also speaks about the payment of bribe to the accused. 12. The investigation officer, having examined the witnesses and seized the relevant documents, laid the final report as against all the accused. 13. On the side of the prosecution, P.Ws.1 to 80 were examined and Exs.P1 to P389 and M.Os. 1 and 2 were marked. On the side of the accused, D.Ws.1 and 2 were examined and Exs.D1 to D33 were marked. 14. The Trial Court, having adverted to the voluminous evidence https://hcservices.ecourts.gov.in/hcservices/ let in on the side of the prosecution, chose to acquit the first accused, 10th accused and 11th accused and convict the second accused and fourth accused to ninth accused. 15. The learned Government Advocate (Criminal Side) would vehemently submit that the first accused chose to fix the price of the colour television without making any enquiry or receiving any statistical analysis about the existing market price. She announced during the Independence Day Speech on 15.8.1995 that 50,000/= colour television sets would be purchased at a cost of Rs.75 crores before March 1996 implying thereby the price of each television set would cost a sum of Rs.15,000/=. She had full knowledge of the valid objection raised by the Finance Department. The Open Tender System has been given a go-by by the first accused. The clearance of the relevant file without giving any weightage to the objections raised by the Finance Department would go to show that she had acted in connivance with the other accused in order to obtain pecuniary advantage for herself and others. Even if the television sets were to be supplied before the General Election, fresh tenders could have been called for and the entire process would have been over within a period of thirty days. The public money has been completely misused by the accused. The payment of money through the prosecution witnesses, 12, 14, 22, 27, 37, 58, 63 and 76 to A2 to A9 stood established. As per section 10 of the Indian Evidence Act, the aforesaid acts of A2 to A9 in obtaining the pecuniary advantage consequent upon the approval made by the first accused is itself a relevant fact against the first accused to show that she was one of the conspirators. It is his further submission that it is not necessary that all the conspirators must know each and every details of the conspiracy so long as they are co-conspirators of the main object of conspiracy. A1 categorically admitted during the course of answering the questionnaire under section 313 of the Code of Criminal Procedure that she did know about the objections of the Finance Department. It is his further submission that the plea of good faith set up by the first accused would not be available for her as she had acted without due care and attention. Therefore, he would submit that A1, A2 and A4 to A9 are punishable for the offence of conspiracy hatched by them to squander the public money. 16. Learned Senior Counsel appearing for the first accused, second accused and the fourth accused to 9th accused would contend that it is the admitted case of the prosecution that the decision for going in for purchasing the television sets for providing to all the villages with fifty and more families in the State of Tamilnadu free of cost was taken by the full Cabinet. The policy decision taken by https://hcservices.ecourts.gov.in/hcservices/ the Cabinet is virtually under challenge in the criminal prosecution. There is no answer from the prosecuting agency as to why only a few members in the Cabinet were singled out and prosecuted. The declaration in the Independence Day Speech that colour television sets would be supplied to the villages at the cost of Rs.75 crores would not imply that there had been a conspiracy to swallow the public money. There was a Television Approval Committee which was formed wayback in the year 1989. The said Committee consists of PW4, who was the Commissioner of Town Panchayat, PW8, the Circle Range Officer, A4, Secretary of the Rural Development Department and A5, Director of Rural Development Department. Only after all the television manufacturers numbering 197 as per the list collected from the Department of Industries and Commerce were invited to participate in the tender process, the deal was concluded. As there was a tussle between the Rural Development and the Finance Department relating to certain issues, the first accused held a meeting with A2, A6, PW5 and PW7 and took a decision. The quantities were fixed based on the capacity of the supplier. There was no meeting of minds established by the prosecution to prove the charge of conspiracy allegedly hatched by the accused. 17. Criminal thoughts generated in the mind of a person are not crimes. The thoughts may take a concrete shape of an agreement to do an illegal act. Such an agreement is designated as criminal conspiracy. A bare agreement to do some illegal act would not amount to an offence of criminal conspiracy unless some act is done by one or more parties to the agreement in pursuance thereof. The very essence of the conspiracy is the fact of combination by agreement. The agreement need not always be express. It may also be implied. It may also be express in part and implied in part. It is not enough that two or more persons pursued the same unlawful object the same time or in the same place. It is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other. 18. Therefore, the court will have to decide whether there was an integration of thought process which provided a shape of an agreement amongst accused 1, 2 and 4 to 9. It is the admitted case of the prosecution that the Full Cabinet chalked out a policy decision to provide colour television sets to all the villages with fifty and more families in the State of Tamil Nadu free of cost. Mr.Peter, PW10, who served as a Deputy Secretary, Rural Development wrote a D.O. Letter, Ex.P72 on 13.8.1995 to the fifth accused Sathyamurthy, the Director of Rural Development of the decision taken by the https://hcservices.ecourts.gov.in/hcservices/ Cabinet and the duty cast upon him to initiate further action in that matter. The proposal states that the said decision was taken with a view to strengthen the communication and information set up in the rural areas. 19. On 14.8.1995, PW10 wrote a letter, Ex.P73 to the Finance Department informing them of the decision taken by the Cabinet that all habitations with fifty families and above would be supplied with colour television sets and all the black and white television sets which were available would be replaced. 20. The first accused, being the Chief Minister, declared in the Independence Day Speech on 15.8.1995 that colour television sets would be provided to village people free of cost by incurring a sum of Rs.75 crores. The Television Approval Committee which was formed in the year 1989 was directed to convene a meeting for the approval of television sets and for the purchase of the same. Admittedly, the price, the number of television sets and the suppliers had not been identified as on the date of such pronouncement in the Independence Day Speech by the Chief Minister. 21. The Television Approval Committee consisted of PW4, who was the Commissioner of Town Panchayat, PW8, the Circle Range Officer, A4, the Secretary of Rural Development Department and A5, the Director of Rural Development. The fourth accused was the Chairman of the said Committee. The Director, Rural Development requested for sanction for purchase of television sets vide Ex.P38 dated 11.9.1995. The Department of Industries and Commerce on request, provided the list of 174 television manufacturers in the entire country to the Director of Rural Development. The Director of Rural Development communicated under Ex.P156 to the television manufacturers numbering 197 and invited them to participate in the Tender. It is on record that the bids from Uptron and Videocon were received on 20.10.1995. The Television Approval Committee Meetings were held on 21st, 26th, 27th, 29th and 31st October 1995. The Department of Rural Development put up a note under Ex.P28 seeking orders for the release of funds for purchase of TV sets. Thereupon, the Finance Department raised objections with regard to the proposal on 16.11.1995 under Ex.P12. Those objections were answered by the Department of Rural Development on 23.11.1995 under Ex.P14. 22. The Chief Minister held a meeting with A2, A6, PW5 and PW7 in order to expedite the process of supply of television sets to the village people. Two decisions were taken in the said meeting and they were found a place in the note, Ex.P13 prepared by the Secretary, https://hcservices.ecourts.gov.in/hcservices/ Finance Department. The bidders submitted a letter of commitment indicating their weekly capacity by 4th and 5th December 1995. The quantities were fixed on the basis of the capacity of supplier. The Government passed G.O.Ms.No.209 under Ex.P10 on 13.12.1995 for supply of the television sets. 23. There is virtually no evidence let in on the side of the prosecution to establish that what was being quoted by the bidders was higher than the market price. None of the witnesses has deposed that the Television Approval Committee was influenced or exerted pressure by the accused to take a wrong decision. The prosecution has also not established that the television sets with certain special specifications sold to the Government were available at a lower price in the open market. The Agents of the Television Manufacturers have not stated that the television sets have been sold to the Government at a rate higher than the market price. 24. The evidence of PW4 Machendranathan is found to be an improvised version compared to his statement, given by him to the police under section 161 of the Code of Criminal Procedure and also his statement given under section 164 of the Code of Criminal Procedure before the learned Judicial Magistrate. PW4 never made a mention in his statements that before he attended the second meeting of the Television Approval Committee, he independently verified the price of a television set with some of the dealers in Chennai. Had he actually verified the price of a television set from such sources, he would not have failed to mention it in the statement given to the police under section 161 of the Code of Criminal Procedure and the statement given before the learned Judicial Magistrate under section 164 of the Code of Criminal Procedure. The above facts and circumstances would clinchingly show that he has modulated his version before the court during the