1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.03.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.O.P.(MD) No.3080 of 2011 and Crl.A.(MD) No.66 of 2011 State represented by: The Inspector of Police, Vigilance and Anti Corruption, Thirunelveli Detachment. (Crime No.05/2000) ... Appellant/Complainant Vs. S.Utchimakali ... Respondent/Accused Criminal Original Petition is filed under Section 378(3) of Cr.P.C praying to grant special leave to file appeal before this Honourable Court against the Judgment made in Special Case No.4 of 2002, dated 22.12.2010 by the learned Chief Judicial Magistrate cum Special Judge, Tirunelveli. C.A.No.66 of 2011 : Criminal Appeal filing under Section 37 of Cr.P.C prying to set aside the judgment passed in Special Case NO.04/2002 dated 22.12.2010 on the file of the Chief Judicial Magistrate cum Special Judge, Tirunelveli. For petitioner : Mr.P.Rajendran Government Advocate (Criminal side) O R D E R This petition is taken up by the Inspector of Police, Vigilance and Anti Corruption, Tirunelveli Detachment, praying for leave to appeal against the judgment dated 22.12.2010, made in Special Case No.4 of 2002 passed by the Court of Chief Judicial Magistrate cum Special Judge, Tirunelveli acquitting the respondent for the commission of the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The case of the prosecution is that P.W.2/defacto complainant is one of the registered contractors of the Panpozhi Panchayat Union and he was awarded the work order for gravelling and metaling the road leading from Adi Dravidar Colony to the grave yard in Karisalkudiruppu Village, Panpozhi Town Panchayat. At the time of execution of work, objection was raised by the owner of a particular land stating that it is his private patta land and therefore, road cannot be laid through his land. Hence, P.W.2 stopped work and sought a clarification from the concerned officials. Subsequently, a decision has been taken to settle the bill due and payable to P.W.2 with https://hcservices.ecourts.gov.in/hcservices/ 2 regard to the contract work done by him and accordingly, a sum of Rs.55,240/- was sanctioned to P.W.2. On such sanction, P.W.2 approached the respondent/accused on 02.05.2000 requesting him to issue a cheque for the said sum and at that time, the respondent/accused has demanded a sum of Rs.1,500/- by way of illegal gratification for issuing the cheque. P.W.2 feeling aggrieved by the said illegal demand made by the respondent/accused, preferred a complaint to P.W.13, Inspector of Police, Vigilance and Anti Corruption, Tirunelveli Detachment and a case in Crime No.5 of 2000 was registered by him and a trap was laid, which was successful and the respondent/accused was caught red handed. Subsequently, P.W.14 took up the investigation and filed a charge sheet against the respondent/accused for the commission of offence under the provisions of Prevention of Corruption Act. 3. The Special Judge cum Chief Judicial Magistrate, Tirunelveli on being satisfied with the materials collected by the prosecution, has framed charges for the commission of offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 4. During the course of trial, the appellant herein in order to sustain their case examined 14 witnesses and marked 27 and also 3 material objects. On behalf of the accused, no witness were examined but Exs.D.1 to D.8 were marked. 5. The trial Court on consideration of oral and documentary evidence and other materials found that the prosecution has failed to prove the charges and acquitted the respondent/accused by its judgment dated 22.12.2010 and hence, the State preferred this appeal against acquittal. 6. Heard the submissions made by Mr.P.Rajendran, learned Government Advocate (Criminal side) and he has drawn the attention of this Court to the impugned judgment and would submit that the findings recorded by the trial Court are perverse and on the face of it, it is unsustainable and prayed the leave of this Court to prefer this appeal. 7. This Court has carefully considered the submissions made by the learned Government Advocate (Criminal side) and also perused the impugned judgment, which is the subject matter of challenge in this Criminal Appeal. 8. A perusal of the judgment would disclose that P.W.2/defacto complainant was awarded a contract to lay a road and while laying the road, an objection was raised by a land owner stating that a particular portion of land is his patta land and therefore, the work was stopped. 9. The trial Court found that the name of P.W.2 has not been found in the list of contractors maintained by the local body and that in respect of a particular portion of land in which road is to be laid belongs to a private individual and no steps were taken to acquire the said land. 10. The trial Court also found that before awarding the contract, estimates have to be prepared, advertisement has to be issued in the newspapers calling for the tender and earnest money deposit has to be obtained from the intending bidders and the same have not been done so. The respondent/accused joined duty as the Executive Officer on 09.08.1999 and the tender was awarded by P.W.8, who was Executive Officer Incharge even https://hcservices.ecourts.gov.in/hcservices/ 3 prior to the appointment of the respondent/accused in the said post. The work order is dated 22.02.1998 and was marked as Ex.P.12 and it was awarded by P.W.8. 11. The trial Court further found that P.W.10-the Executive Officer in charge, had deposed that before awarding the contract, the concerned individual should be a registered contractor with the local body. P.W.8- predecessor to the respondent /accused, in his evidence has admitted that in the list of registered contractors, the name of P.W.2/ defacto complainant does not find a place. P.w.10 in his cross-examination has admitted that though a resolution was passed to acquire a particular portion of private land for laying road, he is not aware whether any such acquisition was made. Investigating officer also admitted that the lands in S.No.657/3 and 657/4 are in possession of individuals. The trial Court also found that in respect of contract amount exceeding Rs.1,20,000/-, the sanction of Assistant Director of Town Panchayat should be obtained and thereafter, only the tender should be floated. But the same has not been followed and P.W.8 in his cross-examination has admitted the said fact. 12. The trial Court further found that agreement between the tenderer and the Executive Officer is to be obtained on a stamp paper and in Ex.P.13 - blank stamp paper, P.W.2 and P.W.8 had signed. The said stamp paper was purchased on 24.12.1998. However, the signature of P.W.2 - defacto complainant and P.W.8-predecessor to respondent/accused had been subscribed even on 22.12.1998, that is two days prior to the purchase of the stamp paper. The trial Court taking into consideration, the said infirmities, has recorded the finding that the sanctioning authority has not applied his mind properly to the documents placed before him and also placed reliance upon the judgment of the Honourable Supreme Court of India in State of Karnataka v. Ameer Jan reported in (2008) 1 MLJ 542 (SC) and in Rajendran v. State, by Inspector of Police, Vigilance & Anti Corruption, etc., reported in 1995-2-L.W. (Crl) 549. This Court finds no infirmity in the said finding recorded by the trial Court. 13. The trial Court also considered the question as to whether any demand was made by the respondent/accused from P.W.2 by way of illegal gratification? In paragraph 17 of the judgment, the trial Court found that audit objection was raised in Ex.D.7 with regard to quality of work done by P.W.2 and P.W.9 had spoken to that effect. P.W.9 further admitted that even though in the audit objection it has been stated that the amount should not be disbursed to P.W.2/defacto complainant, proposal has been made to pay the amount to P.W.2 and hence, there was misunderstanding between P.W.2 and the accused. The trial Court also found that the prosecution has not adduced any evidence to show that the accused was on duty at about 4.00 P.M. on 02.05.2000 and that P.W.2/defacto complainant met him in the office. 14. In sofaras laying of trap is concerned, the trial Court taken into consideration the testimonies of P.Ws.2 and 3 and found material inconsistencies in their evidence. In so far as recovery of money is concerned, the trial Court taking into consideration the testimonies of P.W.3 and Ex.P.6 - trap mahazar found that the place from which the bribe amount was recovered, become highly doubtful. The prosecution in order to sustain their case, had placed reliance upon the positive proof of Phenolphthalein test as per Ex.P.6. After the trap, the accused was asked to put his right hand finger in the solution and there was no change of https://hcservices.ecourts.gov.in/hcservices/ 4 colour and when he put his left hand finger, the solution turned light pink. However, P.w.3, the witness to the trap and P.W.13 trap laying officer in their testimonies also deposed that when the right hand fingers of accused was put in the solution there was no change of colour. However, the trial Court has noted the infirmity in Ex.P.25-Chemical analysis report, wherein it has been stated that in respect of phenolphthalein test done on the right hand fingers of the accused also, the solution contained phenolphthalein as well as sodium carbonate. It is the specific case of the prosecution that only on putting the left hand fingers, the solution turned light pink in colour, whereas as per Ex.P.25 - Report shows the solution in respect of immersing the right hand fingers turned positive. Hence, the trial Court has expressed great doubt with regard to the trap and it placed reliance on the decision of this Court in K.Sivanandam v. State reported in (2007) 1 MLJ (Crl) 269. The relevant portion has been extracted hereunder: " 17. ... According to P.Ws.2, 3 and 5 the accused received the money only with his right hand and did not touch the money with the left hand. Therefore, when his left hand fingers were tested with the sodium carbonate solution it did not turn pink. Therefore, the bottle labelled as "B" was containing the colourless liquid. But, what was received in the Forensic Science Laboratory was a pale pink colour liquid which tested positive for phenolphthalein powder. Therefore, it shows a great doubt whether the bottles seized and labelled at the time of occurrence were actually sent to the Forensic Science Laboratory or some other bottles were sent. The Court has to believe only one version either the version of the prosecution witnesses or the scientific report. A scientific proof does not give falsehood, whereas the witness can utter falsehood. If the scientific version is believed, then both the hands of the accused should have been soiled with phenolphthalein powder and tested positive when the test was conducted at the time of sodium carbonate solution test. But the evidence of the prosecution witnesses is not so. But the evidence of the prosecution witnesses have not come forward with truth." 15. The trial Court also found that no opportunity has been offered to the accused to offer his explanation and in this connection placed reliance upon the decision of this Court in T.Danial Manickaraj v. State reported in (2008) 1 MLJ (Crl.) 774. The trial Court also found that the trap laying officer, P.W.13 in his cross examination had admitted that he has not examined the accused and recorded the statement after the completion of the phenolphthalein test. The trial Court, therefore taking into consideration, the above said infirmities, has recorded clear and cogent reasons as to why it has not accepted the case projected by the prosecution and found that the defence put forth by the accused has been properly probabilised. 16. This Court on careful consideration and independent application of mind to the material available on record is of the considered view that the appellant/prosecution has failed to probabilise the case against the respondent/accused and finds no tenable ground to grant leave for filing https://hcservices.ecourts.gov.in/hcservices/ 5 this Criminal Appeal. Accordingly, the Crl.O.P.No.3080 of 2001 is dismissed. Consequently connected C.A.No.66 of 2011 is also dismissed. Sd/- Deputy Registrar(LA) /True copy/ Assistant Registrar To: 1.The Chief Judicial Magistrate cum Special Judge, Tirunelveli. 2.The Inspector of Police, Vigilance and Anti-corruption, Tirunelveli District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai 4.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai sj Pre-delivery order in Crl.O.P.(MD) No.3080 of 2011 and Crl.A.(MD) No.66 of 2011 11.03.2011 TR : 23.03.2011 : 5p/5c https://hcservices.ecourts.gov.in/hcservices/