A. Loganathan vs The State

S. Palanivelu, J.—This appeal challenges the order of conviction convicting the accused u/s 7 and 13(2) r/w 13(1)(d) of Prevention of

Corruption Act 1988 and sentenced to undergo rigorous imprisonment for six months each and to pay a fine of Rs. 500/- each, in default to

undergo R.I. for two months each. The following is the brief account of prosecution sans unnecessary particulars:

1.(a) P.W.2 Chandran is the resident of Nanjayanaikanur, Vellankoil village. He lodged complaint with the Inspector of Police, Vigilance and Anti-

Corruption Wing, Erode, on 5.12.2000 containing the following allegations:

1.(a)(i) He purchased two items of properties in Pandiampalayam ''B'' village comprised in Survey No. 411/2.3 and Survey No. 394/9.6 Resurvey

No. 1.63 with an extent of 1.35 cents and 2.25 cents respectively, from one Karuppayammal and Karuppannan. P.W.2 wanted to change the

patta in his name, for which he gave an application with Perunthurai Tahsildar on 20.10.2000. After the receipt of the application on 28.10.2000

the accused along with Thingalur Firka surveyor Jothi Ramalingam went to the land of the complainant and measured his property. After measuring

the property, the accused informed the complaint that for rendering recommendation to the Tahshildar, Rs. 6000/- had to be paid to him and the

officials in the taluk office. The complainant told that he did not have that much of money. P.W.2 and P.W.3 went to Pandiampalayam ''B'' Village

Administrative office and met the accused and asked him to recommend. He replied the complainant that they had demanded Rs. 6000/- and if

they paid the amount he could send the recommendation. The accused however, demanded Rs. 2000/- as advance and to pay the balance amount

Rs. 4,000/- at the time of issuing patta. He also told that if the amount was not paid he would not issue any patta. As per the new scheme

announced by the Government, the complainant gave a fresh application for transferring the patta to his name in the Tahsildar Office on

16.11.2007 and that application also was received by the accused. On 17.11.2007 when the complainant met the accused in his office, he again

told unless he paid the advance amount of Rs. 2000/- he would not send report to the Tahsildar and he also told the complainant to pay the

amount before 5.12.2000 evening. Again he met the accused in his office on 4.12.2000 and asked him about patta. The accused insisted the

complainant to bring Rs. 2000/- by next day. P.W.2 also told the accused that he would arrange the money by next day. Since, P.W.2 was not

willing to part with the amount of Rs. 2000/-, he laid the complaint before the Inspector of Police, Vigilance and Anti Corruption Wing, Erode on

5.12.2000 against the accused. The complaint has been marked as Ex. P.2.

2(a) On receipt of the complainant P.W.10 the Inspector of Police, registered a case and lodged F.I.R. Ex. P.25. He made enquiry about the

accused and also examined P.W.2 and recorded his statement. He contacted the Superintendent of Police, Vigilance and Anti-Corruption Wing,

Erode and got permission to initiate trap proceedings against the accused. He gave requisition to the Chief Medical Officer of Erode Veterinary

Hospital and the District Elementary Education Officer, Erode, for deputing official witnesses. He recorded statement from complainant and the

complaint told him that he has brought Rs. 2000/-. One Mohankumar, Assistant Veterinary Doctor and one Balasubramaniam, Superintendent,

District Elementary Education Office met him. They were introduced to P.W.2. Both witnesses were asked to go through F.I.R and ascertain facts

with P.W.2. P.W.2 produced Rs. 2,000/-.

2.(b) Both the witnesses had gone through the contents of F.I.R. P.W.2 produced Rs. 2,000/- cash. They are 500 rupees notes in 3 numbers and

Rs. 100 rupees notes in 5 numbers. P.W.10 noted the serial numbers of the currency notes. He arranged for preparation of sodium carbonate

solution in a glass tumbler. He asked witness Balasubramaniam to count the currency notes given by P.W.2. He did so. P.W.10 asked

Balasubramaniam to dip his fingers of both hands into the solution. On doing so, there was no change in colour. Then P.W.10 directed a police

constable to apply phenolphthalein powder on both sides of the currencies of Rs. 2,000/-. As per request of P.W.10, witness Balasubramaniam

again counted the tainted notes and placed on the table. P.W.10 asked him to dip his fingers into the sodium carbonate solution and on doing so,

solution turned to pink colour. P.W.7 explained the importance of the phenolphthalein test to the witnesses.

2.(c) Rs. 2000/- was kept in the left pocket shirt of P.W.2. It was informed that he had to pay the amount Rs. 2000/- to the accused. It was

particularly directed only if the accused demanded the bribe he had to pay. He also asked Dr. Mohankumar to go alongwith P.W.2 and watch the

happenings. He also advised PW2 to show the signal by changing the wrist watch from the left hand to his right hand. He directed the solution to

be destroyed. They also washed their hands. He further prepared Mahazar Ex. P.4 narrating the above said events in which P.Ws.2, 4, 10 and

witness Balasubramaniam signed.

2.(d) At about 12.15 p.m. all of them left the office in the office jeep to the office where the accused was working. On reaching the place, both

P.W.2 and P.W4 proceeded to the office of the accused. P.W.7, his police party and another witness Balasubramaniam followed them keeping

distance. P.Ws.2 and 4 entered into the office of the accused and came out at 1.50 p.m. P.W.2 showed the pre-arranged signal of changing his

wrist watch from left hand to right hand. Immediately P.W.10 and witness Balasubramaniam proceeded to the accused. P.W.2 identified the office

of the accused. P.W.10 introduced himself and two witnesses to him and the accused became nervous. P.W.10 prepared sodium carbonate

solution in two glass tumblers and asked the accused to dip his right hand in one tumbler and left hand in another tumbler. On doing so, both the

solutions turned to pink colour. P.W.10 collected the sample of solution in two bottles and pasted labels on each, with particulars in which he and

both the witnesses signed.

2.(e) When P.W.10 enquired the accused he accepted that he had received the amount from P.W.2 as bribe and produced the folded currency

notes from his inner shirt pocket. He compared the serial numbers of the said currency notes with the serial numbers in the Mahazar. P.W.10 again

prepared sodium carbonate solution in a glass tumbler and asked to remove his shirt by giving another shirt. He dipped the left side chest inner

pocket portion of the shirt into the solution. The solution turned to pink colour. The sample was collected and packed and the label was signed in

the same manner as mentioned above. When he enquired the accused further, he produced Survey Bill Book bearing S. No. C634-315601 to

315650 of Pandiyampalayam ''B'' Village, Ex. P.19. Inside that book the petition which was given by P.W.2 to the Tahsildar on 16.11.2000 and

two blank papers with the left thumb impression of Erra Naicker and signature of Mallika respectively and the file copies of Sub-Registrar office

Kavunthapadi Ex. P.21 were found. The accused also produced Land Tax book of Pandiampalayam B village. The above currency notes books

and documents were recovered under cover Mahazar.

2.(f) P.W.10 made search of the house of the accused on prior intimation to the Court Ex. P.22 and searched the house on 5.12.2000 between

5.20 p.m. to 5.45 p.m. No property was recovered in the search. Search List is Ex. P.8. Thereafter he brought the accused to his office and sent

him for judicial custody and the case properties. He informed the arrest of the accused to the officers concerned. He also arranged to send a

requisition to the Court to include the Sections 13(2) r/w 13(1)(d) of P.C. Act which is Ex. P.23. He sent the case records to the Deputy

Superintendent of Police, Vigilance and Anti Corruption Wing, Erode on the same day as per the order of the Director of Vigilance and Anti

Corruption for further investigation.

2.(g) P.W.11 the Deputy Superintendent of Police, Vigilance and Anti Corruption Wing, Erode, examined all the witnesses and recorded their

statements. On completion of the investigation, he sent the final report to the Director of Vigilance and Anti Corruption Wing and the charge sheet

was laid before the Court after examining P.W.1, by his successor U.C. Natarajan.

After the prosecution evidence was over, the accused was examined u/s 313 Cr.P.C. as regards the incriminating materials available against him

in the prosecution evidence. He denied complicity to the offences. He filed a statement u/s 313 Cr.P.C. in which it is stated that it is false to state

that he had demanded bribe amount on various dates from the witness Chandran for effecting transfer of patta in his name, that it is false to state

that on 3.11.2000 when the witness Chandran came with the witness Sugumar, he reminded him of the amount, which he had already demanded,

when they asked him to reduce the same, he reminded them of the amount, which he had already demanded and that he asked him to give Rs.

2000/- initially and then to give Rs. 4000/- later on, that it is false to state that on 5.12.2000, in the presence of the witness Mohankumar, he

demanded and received Rs. 2000/- as bribe from the witness Chandran to transfer patta in the name of Chandran, that the witness had not come

for the transfer of patta, that he had approached the surveyor in his personal capacity, to survey the land belonging to him and the said land was

surveyed, that he tells a lie that the amount given to him to be taken to Erode and given to the employees, who were with the surveyor and the

other surveyors, who had been called is the bribe amount, that owing to the previous enmity which prevails between him and the witness

Chandran, he adduces evidence like this in order to indict him in the false case and that the amount which he received from the witness Chandran is

not a bribe amount.

Point for consideration:

The point for consideration in this appeal is, ""whether the prosecution has established the charges framed against the accused beyond all

reasonable doubt?

Point:

The accused was working as Village Administrative Officer, Pandiyampalayam Village, Perunthurai Taluk. P.W.2 defacto complainant

purchased land from Karuppayammal in the year 1986 and one Karuppannan during the year 1986 in S. No. 411/2 and 3 totally to the extent of

1.35 Acre and inherited lands from his grand father and father in Resurvey No. 394/9 to an extent of 1.63 Acre and land from his grandmother in

Resurvey No. 394 to an extent of 2.25 Acre. To change the patta in his name for the above properties, he gave application on 20.12.2000 to the

Tahsildar Perunthurai. The said application was forwarded to the accused who was Pandiampalayam ""B"" Village Administrative Officer, at that

time. On 28.10.2000, the accused along with P.W.6 Thingalur land Surveyor went to the land of P.W.2 and measured the same. On 03.11.2000

when P.W.2 along with P.W.3 went to the office of the accused and asked about the separate patta, he demanded a bribe of Rs. 6000/-. P.W.2

refused to pay the amount for which the accused insisted him to pay Rs. 2000/- as advance and he should pay the balance amount at the time of

issuing patta.

The learned Senior Counsel Mr. Padmanabhan would contend that inasmuch as the prosecution failed to establish the demand of the accused to

tender of bribe by P.W.2, there is no plausible evidence to support the version of the prosecution, that the trial Court has lost sight of the

inconsistencies in oral evidence of the prosecution particularly the Court below miserably failed to appreciate the evidence adduced at the side of

the accused has come to the conclusion that the accused demanded bribe by influencing his official capacity.

Repelling the contention, the learned Additional Public Prosecutor Mr. P. Govindarajan would submit that the Court below has carefully

analysed the evidence of witnesses and other materials with reference to ""demand"" and tender of bribery in a categorical manner and reached a

correct conclusion which is unassailable. He further contends that the trial Court has thoroughly scrutinized the circumstances with regard to the

commission of offence by the accused in a lawful manner and the prosecution has successfully proved the charges framed against the accused.

As regards demand, it is the evidence of P.W.2 that the petition given by P.W.2 on 20.10.2000 was received by the accused. But the accused

acting on the same along with Thingalur Firka Surveyor Jothi Ramalingam (P.W.6) to measure the property. Only after it has been measured the

Village Administrative Officer would send the report the Tahsildar. On the scrutiny of the report, the Tahsildar would issue patta. The accused

asked Rs. 6000/- from P.W.2 as bribe for issue of patta for the expenses of Tahsildar and official of taluk office, for which P.W.2 was not

agreeable. Aggrieved at that P.W.2 alongwith P.W.3 came to the office of the accused on 3.11.2000 and the accused demanded Rs. 6000/- for

which P.W.2 replied that the accused might reduce the amount. The accused insisted to pay Rs. 6000/- that Rs. 2000/- being advance and at the

time of issuance of patta P.W.2 should pay Rs. 4000/-. On 17.11.2000 P.W.2 met the accused in his office and again on 4.12.2000 when P.W.2

met the accused he again demanded Rs. 2,000/- and asked him to bring the amount to his office. After meeting the investigating Officer and after

making arrangements for the trap organising group P.W.2 met the accused in his office and rendered Rs. 2000/- to him. Consequently, the trap

proceedings started as graphically narrated in the earlier portion of this judgment.

During the cross examination of P.W.2, he would say that his friend P.W.3 on 3.11.2000 accompanied him to the office of the accused, that

they went there and met the accused and asked him regarding separate patta for which he demanded Rs. 6000/- as bribe as he asked already, that

P.W.2 told him that he could not pay that much of amount, so that the amount to be reduced. But the accused insisted him to pay Rs. 2000/- as

advance and to pay Rs. 4000/- at the time of issuing patta. P.W.3 in his chief examination would depose that he went to office of the accused

along with P.W.2 who asked the accused regarding patta for which the accused quizzed him whether he brought Rs. 6000/- as already he asked

and further said that only if he paid the amount as already told to him, he could see the patta, that P.W.2 replied that he could not pay that much of

amount and the amount may be reduced for which he asked to pay Rs. 2000/- as advance otherwise he would not take any action on the petition

and also told that at the time of issuing of patta Rs. 4000/- had to be paid. In the cross examination nothing could be shattered which were in chief

examination that for question posed by the defendant''s side, he responded that the police did not enquire him relating to the case and he did not

give any statement to them. When the investigating officer examined in cross for the question whether he had enquired P.W.3 Sugumar, he replied

that it is incorrect to state that he did not enquire P.W.3 at the time of investigation. The investigating officer has stated in the chief examination that

he examined P.W.3 on 16.01.2001 and recorded his statement. In the charge sheet, in the list of witnesses his name is found in Sl. No. 3 and

following reference is available in the Memo of Evidence:

P.W.3 : To speak about the fact of meeting AO on 3.11.2000 alongwith complainant Tr. Chandran, demand of Rs. 6000/- and reduced it to Rs.

2000/- by the accused and other connected facts to the case.

The above said factor would show that P.W.3 was examined by the prosecution and his examination before the Court is also proper. Though

P.W.3 deposed in his cross examination that he was not examined by the police at the time of investigation, it may be a slip of tongue due to his

absentmindedness and this part of the evidence would not in any way affect the other features in his oral testimony.

As far as the view of this Court is concerned, the oral evidence of P.W.3 duly corroborates the evidence of P.W.2 as regards demand. Even

though he is a friend of P.W.2 his evidence could not be disbelieved. Merely because one witness is an interested witness, his evidence cannot be

discarded. The Court has to analyse his evidence thoroughly and find out the truth whether it divulges truth of the matter. In the cross examination

there is a suggestion that his version is incorrect. No question was put to him that since he is the close friend of P.W.2 he came out with false

statement.

The trial Court has not appreciated the evidence on record with reference to demand and tender of bribe. Even though it was stated in the

evidence, demand on the part of accused is there, it has not furnished proper findings with reference to the evidence on record. It has failed to

discuss whether the evidence of P.W.3 corroborates the evidence of P.W.2 in the matter of demand. The niceties of the matter are not observed

by the Court below. Top of all, there is no specific finding in the Judgment of the Court below that demand was there on the part of accused.

P.W.4 is a veterinary doctor, accompanied P.W.2 to the office of the accused at the time P.W.2 paying money to the accused as directed by

the Investigating Officer. The learned Senior Counsel appearing for the appellant/accused referred a part of the evidence available in the Chief

Examination of P.W.4 which proceeds that (Other Language) ""(***)"" The translation of the above lines are: Loganathan asked Chandran,

whether you have brought the bribe money of Rs. 2000/-?"" He posed a question that no official would ask whether an individual brought ""bribe

money and at the most, he may ask whether you have brought money and makes a comment that it is a classical instance of improbability found in

the prosecution case. With regard to the investigating officer, in his cross examination, he states that P.W.4 in his statement has stated that the

accused asked P.W.2 whether he brought money.

P.W.2 says that P.W.3 was coming with him while he was going to the office of the accused. P.W.4 in his evidence would say that the

accused asked P.W.2 about bringing of money, P.W.2 gave the currency notes to the value of Rs. 2,000/- (3 notes of Rs. 500/- and 5 notes of

Rs. 100/-) which were applied with powder. The accused got them counted and put to them in the left side shirt pocket. In his cross examination,

his evidence in the Chief examination could not be shattered. Even then, this Court relies upon the evidence of P.W.5 for receipt of money by the

accused from P.W.2.

The facts and circumstances as stated above would reveal that there are very many materials to show that there was demand on the part of the

accused.

Insofar as ""tender"" of bribery is concerned, the fact revolves around oral testimony of P.W.5. He is working as Village Administrative Officer

in Kangiyampalayam village, Perunthurai Taluk. His office and the office of the accused are functioning in the same building. He says in his oral

evidence that on 5.12.2000 at about 1.45 p.m. Chandran (P.W.2) and another person came to the office of the accused and he happened to see

both of them are coming, that both of them met the accused and the accused received Rs. 2000/- from P.W.2 by his right hand, counted them by

his two hands and put them in inner pocket of the shirt. P.W.2 told the accused that the change of patta may be effected and both of them left his

office. Again both of them entered into the office alongwith Anti Corruption Department Inspector of Police and others. The Inspector of Police

introduced himself to P.W.5. The accused got himself tensed. The Inspector proceeded to recover the bribe money from the accused by following

the necessary procedures. He is one of the witnesses in the label pasted on the bottle which contained the pink colour water. After the

phenolphthalein test he also signed in the Recovery Mahazar for the amount recovered from the accused. The said parcel is Ex. P.7. In the cross

examination P.W.5 denied a suggestion that there was a complaint against him in the Vigilance Department and to escape from the police he gave

evidence against the accused. There is no material on record to show that there was any such complaint against him.

Even though two witnesses have stated about the receipt of bribe money by the accused the evidence of P.W.5 assumes much importance.

Because he is also a Village Administrative Officer who was present near the accused at the time of occurrence. There is no ground nor reason to

disbelieve nor discard his evidence. His evidence establishes the fact that the accused received bribe money from P.W.2. This evidence of P.W.4

also lends support to this application. The above factors would show that there was demand and receipt of payment by the accused.

Adverting to the legal propositions governing the field, Mr. Padmanabhan, the learned Senior Counsel appearing for the accused relied upon

various decisions:

18.(a) In 2009 (3) MWN (Cri) 356 [State rep by Inspector of Police Vigilance & Anti Corruption, Tiruchirappalli v. Mahalingam] it is held that

the witness being a Government servant not supposed to associate himself with raiding party unless he gets proper permission from his superior

officer. P.W.4 says that he got oral permission from his superior to participate in the trap proceedings. Hence, it is the duty of the accused to

examine the superior of P.W.4 for this purpose. But it was not done.

18.(b) The Supreme Court in T. Subramanian Vs. State of Tamil Nadu, has held that mere proof of receipt of money by the accused in absence of

proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of offence. In the case on hand, a defence was

raised that the root cause for the delay in getting electrical connection by giving NOC by the accused on earlier occasion. P.W.2 in his evidence

denied a suggestion that due to the motive he has given false complaint. But in the statement filed by the accused u/s. 243 Cr.P.C. given at the time

of questioning u/s. 313 Cr.P.C. he says that since there was motive, P.W.2 has laid a false complaint against him. When the motive is tested, it

does not appear to be a grave one as to make P.W.2 to give false complaint. It is also stated by the accused that the amount was given to the

accused for paying to the wages of workers who were assisting the survey at the time of surveying the land by taking measurements. It is stated

that this amount was due to labourers who were private persons, they will be paid personally by the land owner. But the accused has not shown

that the amount was given for this purpose.

18.(c) Further this Court in D. Dass Vs. State, has held that mere proof of receipt of money by an accused in the absence of proof of demand and

acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused in a corruption case. Therefore, mere recovery

of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in

the prosecution case is not reliable. But in the present case on hand, both the features viz., demand and receipt of money by the accused have been

established.

18.(d) In Punjabrao Vs. State of Maharashtra, it is held that if the explanation offered by the accused u/s 313 Cr.P.C. is found to be reasonable,

then it cannot be thrown away merely on the ground that he did not offer the said explanation at the time when the amount was seized. But the

explanation given by the accused in his statement u/s 313 Cr.P.C. is not convincing, in the case on hand.

18.(e) In Som Parkash Vs. State of Punjab, the Supreme Court has held that accused however, acquitted giving benefit of doubt as the evidence

of witnesses party were not independent evidence regarding handing over of money to accused unbelievable. But in this case, the evidence of

P.W.5 is relied upon. The evidence of P.W. 4 witness who was also a member, is not relied by this Court.

18.(f) Where the trap proceedings are proceeded with suspicious circumstances, the accused has to be acquitted as held by this Court in 2001 (1)

MWN (Cr.) 602 [M. Rajendran v. State]. But it is not applicable to the facts of the present case since in the case on hand no such suspicious

circumstances are found in the trap proceedings.

A conspectus of all the circumstances in this case would reveal that the charges framed against the accused have been proved by the

prosecution beyond reasonable doubt. The prosecution has brought home the guilt of the accused beyond any doubt. The conviction under

sections recorded by the trial Court cannot be faulted with. The Judgment of the Court below deserves to be confirmed and accordingly it is

confirmed. The appeal is devoid of merits. It suffers dismissal. This point is answered as indicated. In fine, the Criminal Appeal is dismissed. The

Chief Judicial Magistrate and Special Judge, Erode, is directed to issue warrant to commit the accused person to suffer the remaining period of

sentence.

(***)