IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.07.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Crl.A.No.381 of 2004 A.Sivasamy S/o.M.Arunachalam, .... Appellant/Accused Vs. State by Inspector of Police, Vigilance and Anti Corruption, Coimbatore, Coimbatore District. ..... Respondent/Complainant Prayer : Appeal is filed under Section 374 Cr.P.C. against the judgment dated 25.02.2004, and made in C.C.No.9 of 2001 on the file of the Learned Special Judge Cum Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.R.John Sathyan For Respondent : Mr.A.N.Thambidurai (Addl. Public Prosecutor) J U D G M E N T Challenge is made in this appeal to the judgment dated 25.02.2004, and made in C.C.No.9 of 2001 on the file of the Learned Special Judge Cum Chief Judicial Magistrate, Coimbatore convicting the appellant under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 and sentencing to suffer one year of rigorous imprisonment and to pay a fine of Rs.1,000/- in default to suffer six months of imprisonment for each offence. 2. Impugning the judgment dated 25.02.2004 the appellant stands before this Court with this appeal. 3. That on 18.10.2001, PW 10 Mr.Robert Payne, Inspector of Police attached to Vigilance and Anti-Corruption Department, Coimbatore had laid a final report before the Learned Special Judge Cum Chief Judicial Magistrate, Coimbatore against the appellant. Mr.A.Shivasami, who was then functioning as Gomangalam Village https://hcservices.ecourts.gov.in/hcservices/ Administrative Officer alleging that on 08.08.2000, 09.08.2000 and 17.08.2000 he had demanded PW 2, Thiru N.Mahalingam a sum of Rs.1,000/- as illegal gratification to process his application for effecting name transfer in patta. Then on 18.08.2000, on the information given by PW 2, a case was registered in Crime No.3/2000/AC/CB under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 on the file of Coimbatore Vigilance and Anti-Corruption Department. Thereafter on 18.08.2000 at about 11.30 am., a trap was organized and the appellant was caught read handed when he had accepted the illegal gratification from PW 2 as a motive or reward to take action for effecting name transfer. 4. The Learned Special Judge, had furnished copies of the charge sheet to the appellant as required under Sections 207 of Cr.P.C. and on hearing both sides, he had framed two charges viz.; 1.Under Section 7 and 2.Under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988. 5. When the ingredients of the charges were explained and questioned, the appellant had pleaded innocent and claimed to be tried. He therefore, was put on trial. 6. The prosecuting agency in order to establish its case had examined as nearly as 11 witnesses and during the course of their examination, Exs.P1 to P19 were marked. 7. The gravamen of the prosecution case is this; 7.1. PW 2, Mahalingam is the rsident of Malayandipatti Village and is an agriculturist by profession. After the demise of his father on 08.07.1999, he wanted to change the patta in his name as well as in the name of his brothers, sisters and mother jointly as the landed property stood in the name of his father. 7.2. That on 08.08.2000 at about 11 am., he had been to the office of the appellant who was then functioning as Gomangalam Village Administrative Officer and requested him to effect transfer of patta. 7.3 On the instruction given by the appellant, PW 6 Thamba @ Thamban, village minial, Gomangalam Village, wrote an application addressed to the Tahsildar requesting name transfer of patta. PW 2 had also signed the application and handed over to the appellant with enclosures viz., legal heirs certificate and death certificate of his father, etc. 7.4. On receipt of the application, the appellant had demanded a sum of Rs.1,000/- to process the same. Then PW 2 had expressed his inability to pay the demanded amount and requested the appellant to https://hcservices.ecourts.gov.in/hcservices/ arrange for the name transfer without any expenses. Thereafter the appellant had instructed PW 2 to come on the next day. PW 2 had also met the appellant at his office on the following date i.e., on 09.08.2000 at about 11 am., but even on that day also the appellant had reiterated his earlier demand of Rs.1,000/-. 7.5. After one week i.e., on 17.08.2000, at about 10 am., the appellant had once again reiterated his earlier demand of Rs.1,000/- when PW 2 had met him in his office, for effecting name transfer in the patta. The appellant had also told PW 2 that without money, he could not process his application. 7.6. On the next day i.e., on 18.08.2000 at about 03.00pm., PW 2 had been to the office of the Vigilance and Anti Corruption Department, Coimbatore and lodged an oral complaint before PW 9, Mr.Thangavellu, Inspector of Police which was reduced into writing by PW 9 under Ex.P3 and based on that complaint he had also registered a case in Crime No.3/2000/AC/CB under Section 7 of the Prevention of Corruption Act 1988. The printed first information report was marked as Ex.P18. 7.7. Since PW 2 had agreed to cooperate PW 9 to organise a trap to nab the appellant and also accepted to bring a sum of Rs.1,000/- which was demanded by the appellant, PW 9 had advised PW 2 to come on the next day i.e., on 18.08.2000 at 07.00am., along with the amount of Rs.1,000/-. On 18.08.2000, PW 9 had organised a trap in the presence of two official witnesses viz., PW 3, Cooperative Sub Registrar, Coimbatore and one Shanmugam. As per the direction given by PW 9, PW 2 had brought 10 numbers of 100 rupee currency notes being the bribe amount to be given to the appellant on demand. Demonstration of Phenolphthalein test was conducted and the significance of the test was explained to the official witnesses as well as PW 2. At the time of demonstration Phenolphthalein powder was smeared on the currency notes and they were handed over to PW 2 with an instruction to pay the amount to the appellant only on demand. The serial numbers of the currency notes were noted in a mahazar (Ex.P4) prepared at the Vigilance and Anti Corruption Office, Coimbatore. Samples of the Phenolphthalein powder were collected in two separate paper covers and marked as A and B respectively. These two separate paper covers viz., A and B were marked as MO1 and MO2 respectively. PW 2 was also instructed by PW 9 to give a signal by removing his right leg chappel no sooner than the amount is received by the appellant. 7.8. Thus at about 08.45am., PW 9, PW 2 and other official witnesses had left the Vigilance and Anti Corruption Office to the Gomangalam Village Administrative Office. At about 10.30 am., they had reached Gomangalam village. At about 10.40 am., PW 2 along with PW 3 had entered the Gomangalam Village Administrative Office. The https://hcservices.ecourts.gov.in/hcservices/ appellant was present there. One Survey Inspector Subramaniam was found conversing with one Babu. Besides them one village assistant Marimuthu was also present there. Apart from them PW 6 Thambu @ Thamban Village Assistant was found sitting on the pale. After some time the serveyor, Subramaniam and Babu were coming out of the office room. Whileso, Surveyor Subramaniam had enquired PW 3 Rajendran as to who he was ? For which PW 3 had pretended and spelt out his name as Mayilsami. On seeing PW 2, the appellant had asked him as to whether he had brought money ? For which PW 2 had replied in the affirmative and tendered the tainted currency notes amounting to Rs.1,000/-. 7.9. The appellant had asked him to give it to PW 6 Thambu @ Thamban who was sitting on the pale. When the amount was tendered to PW 6, he asked to hand over to the appellant himself. When the amount was again brought to the appellant he had asked PW 2 to place it on the table. When the amount was placed on the table, the appellant had put a scale upon the money. Then the appellant had asked PW 2 to come after four or five days. While PW 2 and PW 3 were coming out of the office room of the appellant PW 4 Annadurai was found standing by the side of the door. When questioned, PW 4 had replied that he had also come to meet the appellant to obtain ownership certificate. 7.10. At about 11.30am., PW 2 and PW 3 came out and gave the pre- arranged signal to express that the bribe amount was accepted by the appellant. On seeing this PW 9 and his party had rushed and entered the office of the appellant, wherein PW 2 had identified the appellant Shivasamy, that he was the person who demanded the bribe amount of Rs.1,000/-. PW 9 had introduced himself and other witnesses to the appellant Shivasamy whileso, he got perturbed. Immediately PW 9 had conducted the Phenolphthalein test on both the hands of the appellant Shivasamy separately. But the change in colour was not visible to the eyes. When the appellant was questioned about the money he had denied the demand and receipt of the amount which was kept on the table. Thereafter the serial numbers of the currency notes found on the table were verified and compared with the numbers noted in the mahazar prepared earlier under Ex.P4 at the Vigilance and Anti Corruption Office, Coimbatore and the numbers were also found tallied. The scale with the caption "SMILEY PLASTIC SCALE" placed over the bribe amount and the table cloth on which the amount was kept were subjected to Phenolphthalein test, but the change of colour in the solutions was not visible to the eyes. 7.11. All the above resultant solutions were collected in four separate bottles, sealed and labeled as S1, S2, S3 and S4 respectively. PW 9, PW 2 and PW 3 and the appellant had signed on the labels. Thereafter the material objects were recovered under Ex.P6 mahazar. When the appellant was interrogated he had produced https://hcservices.ecourts.gov.in/hcservices/ the application submitted by PW 2 for effecting name change in the patta and other enclosures which were marked as Ex.P5. Then the appellant had also produced Ex.P8 to P11 viz., the attendance register, application register, Village land Revenue receipt book and another land receipt book pertaining to Malayandipatti Village, and they were also recovered by PW9. After entrusting the office with PW 6 Thambu @ Thamban Village Assistant, PW 9 had arrested the appellant and also prepared a rough sketch pertaining to the office of the Gomangalam Village Administrative Office. 7.12. At about 2.45pm., on the same day PW 9 had searched the house of the appellant which is located at Makhilampatti Village, after giving advance intimation to the Learned Special Judge cum Chief Judicial Magistrate. The house search went up to 03.15pm., but no incriminating materials were found and to that effect PW 9 had prepared a search list which was marked under Ex.P7. Subsequently, the appellant was sent to court for being remanded to judicial custody. The material objects were also sent along with the appellant. 7.13. Then the case records were entrusted with PW 10, Robert Payne, Inspector of Police for further investigation. PW 10 after taking up the case for further investigation, had examined PW 2, PW 3, PW 6 and other witnesses and recorded their statements. Besides them he had also examined certain witnesses and recorded their statements also. 7.14. That on 06.09.2000, he had given a requisition under Ex.P12, to the Learned Special Judge, requesting to send the material objects for chemical examination. In pursuant to his requisition, the material objects were sent to Forensic Sciences Laboratory on 14.10.2000 under Ex.P13 covering letter. 7.15. In pursuant to the requisition made by the Learned Special Judge cum Chief Judicial Magistrate, Coimbatore PW 11, Mr.Tamaraiselvan, Scientific Assistant, Grade-I, Forensic Sciences Laboratory, Chennai had examined the samples viz., S1, S2, S3 and S4 and after the completion of his examination, he had issued a chemical analysis report under Ex.P14. After the completion of the investigation, PW 10 as per the direction given by the Director of Vigilance and Anti Corruption Department, Chennai had obtained an order of sanction under Ex.P1 from PW 1 Revenue Devisional Officer, Pollachi to launch prosecution against the appellant. On verification of the records PW 10 had laid a final report before the Learned Special Judge cum Chief Judicial Magistrate on 18.10.2001 under Section 7 and 13(2) r/w. 13 (1)(d) of the Prevention of Corruption Act 1988 with the evidence of PW 11, the prosecution has closed its side. https://hcservices.ecourts.gov.in/hcservices/ 7.16. When the appellant was examined under Section 313(1)(b) of the Code of Criminal Procedure with regard to the incriminating circumstances arising out of the testimonies of the prosecution witnesses ranging from Ex.PW1 to PW 11, the appellant had replied that he did not demand money and never asked PW 2 to hand over it to PW 6. He had also replied that he had never seen the money and that only the Inspector of Police, PW 9 alone had taken out the money from underneath the table cloth. He had also replied that he did not know as to whose money was that. Though the appellant had claimed that he was having witnesses to be examined on his side, no oral evidence was led on his side. Instead, one documentary evidence alone was marked on the side of the defence under Ex.D1. 7.17. On assessing the evidences both oral and documentary, the Learned Special Judge cum Chief Judicial Magistrate, Coimbatore had found the appellant guilty under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 convicted and sentenced thereunder as aforestated. 8. Heard Mr.T.S.Sasikumar, the learned counsel appearing for the appellant and Mr.N.P.Kumar, the learned Special Public Prosecutor appearing for the respondent. Two charges have been leveled against the appellant/accused. The first charge is under Section 7 and the second charge is under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988. As observed in N.Thangarajulu & Another v. State by Inspector of Police, Vigilance and Anti Corruption Wing, Tanjore District reported in 2001 (2) Madras Weekly Notes (Crl.) 39, the following are the essential ingredients to be established by the prosecution. 1.Demand 2.Payment 3.Recovery Unless these three ingredients are established by the prosecuting agency, the suspect who is being accused of the charges has to be necessarily discharged. 9. In the present case PW 2 Mahalingam, alleges that the appellant had demanded money to the extent of Rs.1,000/- for effecting name transfer in the patta. As revealed from his evidence in chief he had first approached the appellant on 08.08.2000 and again on 09.08.2000. When he met the appellant on 17.08.2000 at about 10.00am., he had reiterated his earlier demand and had strongly told him that unless the demanded amount of Rs.1,000/- is paid he would not process his application for name transfer. Only thereafter, at about 03.00 pm., on 17.08.2000 PW 3 had complained to PW 9 Mr.Thangavel, Inspector of Police attached to Vigilance and Anti Corruption Department, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 10. PW 2 is not an illiterate, but he knows to read Tamil and sign in both languages viz., Tamil and English. The application which was presented to the appellant was addressed to the Tahsildar. He has also admitted in his cross examination that the demand made by the appellant was not known to anybody excepting himself. PW 3, according to the case of the prosecution is an official witness who was made to be an eye witness to the occurrence by the prosecuting agency. Ofcourse, while the phenolphthalein test was conducted inside the office of the appellant PW 2 was not present there as he was asked to go out by PW 9 and in fact PW 3 was present there along with PW 9. Both PW 9 and PW 3 have categorically stated that there was no colour change and it was also not visible to naked eyes. 11. Even as it reveals from the testimonies of PW 2 and PW 3, the appellant did not receive the money in his hand. But both of them have deposed that the appellant had asked PW 2, to place the money on the table, but PW 2 had placed the money underneath the table cloth. These are the exact words spelt out by PW 2 in his evidence. PW 9 had also taken the money from underneath the table cloth. The above circumstances would go to suggest that the appellant did not receive the money in his hand. If he happened to touch the money then the phenolphthalein test would have been proved in positive. 12. The evidence of PW 11 Scientific Assistant, Grade-I, Forensic Sciences Laboratory, Chennai does not help the case of the prosecution. It is significant to note here that PW 2 himself has fairly admitted in his cross examination that the appellant did not receive the money in his hand. It is also pertinent to note here that he has answered that he did not remember as to whether he had placed the money on the northern corner of the table. The evidence of PW 6, also has left the prosecution case unsupported. He would state in his evidence that PW 1 and another man came there and met the appellant in the office and immediately, they came out while he was sitting on the pale. He has added further that PW 2 and the other man gave the money to him as if they were asked to give it to him. But he did not receive it, and asked them to go back to the appellant. 13. In this connection he would depose that he did not know as to what they had conversed with the appellant. In his cross examination PW 6 has deposed that soon after the arrival of the police party the appellant had shouted that "don't foist false case". Further he has also deposed in his cross examination that he told to PW 2 and other person, that nobody would receive money in their village. PW 3 in his cross examination has stated that PW 4 Annadurai was present in the Village Administrative Office but his signature was not obtained in the Mahazar. He has also stated that the Mahazar also did not have any reference to show the presence of PW 4 Mr.Annadurai. https://hcservices.ecourts.gov.in/hcservices/ 14. PW 4 Annadurai, has also not supported the case of the prosecution. In fact he was treated hostile to the case of the prosecution. PW 7, Tahsildar speaks about the procedure in respect of the issuance of patta. Similarly, PW 8 Sub-Collector, Erode District has also spoken to that each and every Village Administrative Officer had to submit their diary entries in respect of their day today work to the Regional Sub-Collector within 3rd and 18th of every month. His evidence is also not in consonance with the case of the prosecution. 15. Mr.T.S.Sasikumar, the learned counsel appearing for the appellant has submitted that only to wreck vengeance on the appellant this case has been foisted against the appellant by PW 2. He has also submitted that PW 9 and PW 2 are closely related with each other. 16. In Malayandipatti Village one teacher Balakrishnan is having a well in his own land. An attempt was made to take water to the land of one Shanmugavel from the land of the said teacher Balakrishnan. But it was subsequently prevented and objected by the villagers of the appellant. This fact is also admitted by PW 2 in his evidence. Both PW 9 and PW 2 have admitted their relationship. 17. In the above circumstance, the learned counsel for the appellant would submit that in order to wreck vengeance on the above stated incident, PW 2 had made use of the services of PW 9 to foist the case against the appellant. PW 1 is the Revenue Divisional Officer and he would state that on the basis of the records, he had issued the sanction for launching prosecution against the appellant. PW 1 has also admitted that the application for effecting name change in the patta should be presented before the concerned Tahsildar and he has also specifically admitted in his evidence that in the records presented to him for the issuance of order of sanction, no where it was stated that the appellant had received the money from PW 2. He has also admitted that there was no change of colour when the phenolphthalein test conducted on the appellant. 18. On the other hand the learned Special Public Prosecutor has submitted that the hyper technical approach might not be adopted to scrutinize the evidences and he has also canvassed that the prosecuting agency had established the guilt of the appellant through the testimonies of PW 1 to PW 3 and PW 9 to PW 11. He has also maintained that the trial court had rightly found the accused guilty under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 and therefore, the conviction and the sentence of the trial court need not be interfered with and might be confirmed. 19. This Court has carefully analyzed the testimonies of the prosecution witnesses as well as the documentary evidences adduced on https://hcservices.ecourts.gov.in/hcservices/ both sides. As discussed in the opening paragraph, the demand of bribe, payment, followed by the recovery are the essential ingredients to be established by the prosecuting agency. Further, all these three ingredients have to be conjointly proved beyond all reasonable doubts. No doubt the appellant is a public servant but the prosecution has miserably failed to establish the charges under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 through acceptable legal evidence. The evidence of prime witnesses viz., PW 2, PW 3 and PW 9 are not sufficient to bring home the guilt of the accused beyond all reasonable doubts. 20. Having regard to the submissions made on behalf of both sides and on considering the related facts and circumstances this Court is of considered opinion that this is a fit case for acquittal. 21. In the result, the appeal is allowed. The finding, conviction and sentence imposed on the appellant are set aside and the appellant is acquitted, as he is not found guilty. The fine amount paid by the appellant shall be refunded to him. The bail bonds executed by and on behalf of the appellant are discharged. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar prm To 1.The Inspector of Police, Vigilance and Anti Corruption, Coimbatore, Coimbatore District. 2.The Public Prosecutor, Madras High Court. 1 CC to Mr.R.John Sathyan, Advocate, SR.41168 Crl.A.No.381 of 2004 SS(CO) SRA(03/11/2011) https://hcservices.ecourts.gov.in/hcservices/