A.M. Palanisamy vs State

R. Banumathi, J.—Accused in Special C.C.101/1995 on the file of Special Court / Chief Judicial Magistrate, Erode is the Appellant. By the Judgment dated 24.11.1997, the Appellant / accused was

convicted under Sec. 420 IPC and Sec. 13(2) r/w. 13(1)(d) of Prevention of Corruption Act.

For the four instances of collecting the amount from witnesses, four separate charge sheets were filed in Spl.C.C.101/1995, 102/1995, 103/1995 and 104/1995. The occurrence was within a period of

one year. Though the occurrence related to more than three instances, all the cases were clubbed together in C.C.101/1995. Excepting the village / place of occurrence, date and number of witnesses, gist of

charges framed in all cases are one and the same.

For better appreciation of the facts and evidence, gist of charges, finding and sentence recorded by the trial court could be stated thus:-

Charge

Gist of the offence

Finding

Sentence

1

U/s. 420 IPC - Cheating. Dishonestly inducing witnesses to deliver to him Rs.150/= each (Totally Rs.4950/=) without intending to remit the same. (44 counts)

Found guilty in 34 counts.

Convicted. R.I. for 2 years and fine of Rs.100/- for each count.

2

U/s. 409 IPC - Criminal Breach of Trust. Dis- honestly failing to remit the amount in the Panchayat Union Treasury

Found not guilty.

Acquitted.

3

U/s. 13(2) r/w. 13(1)(d) of Prevention of Corrupiton Act -Criminal Misconduct by abusing his position as a Public Servant (4 counts).

Found guilty.

Convicted. R.I. for 2 years and fine of Rs.100/= for each count.

4

U/s. 13(2) r/w. 13(1)(d) of Prevention of Corruption Act- Criminal Misconduct of the Public Servant by misappropriating the amount.

--

--

Charges levelled against the accused arise out of the common admitted facts:

The Intensive Sanitation Programme with subsidy benefit was being implemented in Periyar District from 1988-89 onwards for the purpose of providing sanitation facilities in Rural areas by building latrines in

the houses of poor and middle class people living in Villages, and the Rural Welfare Officers of the Panchayat Unions were entrusted with the task of explaining the features of the Scheme and assist the

Villagers in availing the benefits under the said Scheme.

The said Scheme provided for the remittance of Rs.116/= each at the Panchayat Union Treasury by or on behalf of the persons intending to benefit under the Scheme, towards the cost of the latrine basin,

and that after the completion of the construction of the latrine as per the prescribed specification, each of the beneficiaries would be eligible for the subsidy amount of Rs.1280/= to be sanctioned by the Block

Development Officer concerned.

Between 17.08.1990 and 11.10.1990, the accused visited Sengattupalayam, Maruthur, Uppathu Kallivalasu and Upparu Dam Villages and explained to the villagers about the scope and features of the

Scheme and collected the amount from the witnesses as noted below;

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Village and Date Witnesses from whom Total amount

amount collected collected

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Sengattupalayam P.Ws.2 to 16 and

on P.W.38 Rs.2,400/=

17.08.1990 Rs.150/= each.

Maruthur P.Ws.17 to 19 and

on one Thirumalaisamy Rs. 600/=

29.08.1990 Gounder Rs.150/= each.

Uppathu Kalli- P.Ws.27 to 37, 39

valasu on and 42. Rs.150/= each. Rs.1,950/=

01.09.1990.

Upparu Dam P.W.20

on Rs.150/= Rs. 150/=

11.10.1990

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

After collecting the amount as aforesaid, the accused failed to remit the amount in the Panchayat Union Treasury.

Complaint before P.W.21 - Santhanam (Ex.P-2_) Even after three months, the accused had neither provided latrine basin nor furnished the receipt. The witnesses from Sengattupalayam enquired in

Kundadam Panchayat Union Office, whether the amount was remitted to the Treasury. P.W.23 - Assistant informed them that the amount was not remitted to the Treasury. Thereafter, P.Ws.2 and 3

preferred Ex.P-2 Complaint (07.12.1990) before P.W.21 Santhanam complaining about the accused collecting the money. Ex.P.2 - Complaint was signed by others, who paid the amount. Complaint (Ex.P-

3) was also sent to District Collector, Erode and to Dharapuram Divisional Development Officer (Ex.P-4).

P.W.22 - Periasamy (Divisional Development Officer) directed P.W.26 - Selveraj (Commissioner) to hold enquiry about the complaint received. P.W.26 - Commissioner of Kundadam Panchayat Union

directed P.W.21 to conduct the enquiry. On being directed, P.W.21 went to Sengattupalayam on 16.12.1990. He examined the witnesses and recorded their statements. He forwarded the same to

Commissioner of Kundadam Panchayat.

Like the witnesses from Sengattupalayam, Maruthur people (P.Ws.17 to 19) also gave complaint - Ex.P-22 to 24. One Thirumalaisamy also preferred Ex.P.29 - Complaint. Villagers from Uppathu

Kallivalasu also lodged the complaint on 04.12.1991. P.W.26 - Additional Block Development Officer received the Petitions - Exs.P-39 to P-50 from P.Ws.27 to 37, 39 and 42. Thus Complaint was sent

to Kundadam Panchayat Union Office. Enquiry was held and statement of these witnesses was also recorded.

The Statements recorded from the witnesses were forwarded to P.W.22 - Divisional Development Officer. Deception played upon the villagers by the accused was brought out during the preliminary

enquiry. Thereupon, P.W.22 had written Ex.P.33 - Letter to the District Collector seeking permission to initiate the criminal prosecution. On 01.03.1991 the accused was suspended.

Registration of First Information Report:

On secret information, P.W.43 - Inspector of Police, Vigilance and Anti-corruption, Erode District had registered a case in Crime No.5/AC/91/PD under Secs. 420, 409 IPC and 13(2) r/w. 13(1)(c) and

13(1)(d) of Prevention of Corruption Act on 18.09.1991. Ex.P.51 is the First Information Report.

Investigation: Though information was received against the accused in 1991, immediate investigation was not taken up. After the departmental enquiry against the accused, further investigation was taken

up in 1994. P.W.43 - Investigating Officer had examined various witnesses and recorded their statements. P.W.1 - District Collector, Erode issued Ex.P.1 - Sanction Order. On obtaining the Sanction

Order, P.W.43 - Inspector filed the Charge Sheet against the accused under Secs. 420 and 409 IPC and Sec. 13(2) r/w. 13(1)(d) of Prevention of Corruption Act.

To substantiate the charges against the accused, in the trial court, P.Ws.1 to 43 were examined. Exs.P.1 to P.51 were marked. The accused was questioned about the incriminating evidence and

circumstances under Sec. 313 Crl.P.C. The accused stated that a false case is foisted against him using the diary entries - Exs.P-34 to P-36.

Upon consideration of the evidence, the trial court found that the payment to the accused by the Prosecution witnesses is well proved by the consistent evidence of Prosecution witnesses. The learned

Special Judge was of the view that as much as 33 witnesses could not have had reasons or motive to speak against the accused. The defence version that non-mention of date of payment in the earlier

complaint (Exs.P-2 to P-4) would not in anyway undermine the version of the witnesses, who had paid the money to the accused. Points urged by the accused on the delay in investigation was also rejected

by the trial court on the ground that the investigation has proceeded after the Departmental enquiry. Contention of the defence that the Complainant himself cannot be the Investigating Officer was rejected by

the trial court on the ground that P.W.43 has no role in the occurrence and that no prejudice was caused to the accused by P.W.43 - Complainant holding the investigation. On those reasonings, the accused

was convicted and sentenced to undergo imprisonment as aforesaid in para (3).

Aggrieved over the conviction, Appellant / accused has preferred this Appeal.

Assailing the version of Prosecution witnesses as to the payment of money to the accused, the learned Senior Counsel Mr.Gopinath contended that when in their earlier complaints and statements the

witnesses had not specifically spoken about the dates, the trial court erred in placing reliance upon the evidence of the witnesses. Submitting that the Prosecution has only tried to take advantage of the diary

entries of the accused, the learned senior counsel interalia raised the following submissions:

(i) in their complaints / statements, the witnesses have not spoken about the date of payment and purpose of payment;

(ii) when no dates are mentioned in the earlier complaints, it is only an attempt on the part of the Investigating Officer to correlate the diary entries Exs.P-34 to P-36 to the date of visit of the accused to the

respective villages;

(iii) that the Complainant - P.W.43, who registered the First Information Report, ought not to have proceeded with the investigation. In this regard, reliance is placed upon Megha Singh Vs. State of Haryana,

.

On the above points urged, the learned Senior Counsel had taken me through the evidence of the witnesses and submitted that the trial court erred in convicting the accused on the delayed investigation and

that the conviction cannot be sustained.

Pointing out that the accused was suspended on 01.03.1991 after the Departmental enquiry, the learned Government Advocate (Criminal Side) submitted that the Prosecution cannot be faulted for the

delay in further investigation. It is submitted that non-mention of dates in the earlier complaints / statements would not in any way affect the core of the evidence of the witnesses. Submitting that P.W.43 is

neither a witness to the occurrence nor has any role in the incident, it is submitted that in the facts and circumstances of the case, P.W.43 was empowered to proceed with the investigation and that the

accused cannot have any grievance.

Upon consideration of the evidence and materials on record, impugned judgment of the trial court, submissions of both sides, the following points arise for consideration in this Appeal.

(1) Whether the accused is proved to have dishonestly induced the witnesses to pay Rs.150/= each ?

(2) Whether the receipt and retention of money which is not legal remuneration is proved by the Prosecution ?

(3) Whether the conviction of the Appellant / accused under Sec. 420 IPC and 13(2) r/w. 13(1)(d) of Prevention of Corrupiton Act and the sentence of Imprisonment warrants any interference ?

It is not in dispute that the accused was working as the Rural Welfare Officer, Grade I at Kethelrev Group of Kundadam Panchayat Union from 24.12.1989 to 02.12.1990. Equally, it is not disputed that

the Rural Welfare Officers of the Panchayat Union were entrusted with the task of explaining the features of the Scheme and to assist the Villagers in availing the benefits under the Intensive Sanitation

Programme with subsidy benefits. The accused who was working as Rural Welfare Officer was thus entrusted with the responsibilities of explaining the features of the scheme to the villagers within his

jurisdiction.

Between 24.12.1989 and 02.12.1990, accused visited the villages - Sengattupalayam, Maruthur, Uppathu Kallivalasu and Upparu Dam. After explaining the Scheme, he collected money at the rate of

Rs.150/=each.

17.08.1990 - Sengattupalayam ... P.Ws.2 to 16 and 38:

P.Ws.2 to 16 and 38 of Sengattupalayam Village have consistently spoken about the visit of the accused to their village on 17.08.1990. According to them, the accused explained to them the scope of the

Scheme and collected Rs.150/= from each of them, informing that he would remit the amount in the Panchayat Union Treasury on their behalf towards the cost of the latrine basins. The witnesses have also

spoken that the accused had obtained their signatures in blank application forms. That the accused visited Sengattupalayam Village is made clear from the Diary entry in Ex.P-34 also.

29.08.1990 - Maruthur Village ...P.Ws.17 to 19 and one Thirumalaisamy:

In this instance also, P.Ws.17 to 19 have spoken about the visit of the accused to their village and that the accused collected from them Rs.150/= each after explaining about the Scheme and that he would

remit the amount in the Panchayat Union Treasury on their behalf towards the cost of the latrine basins. As per Ex.P-34 - Diary entry, the accused is proved to have visited Maruthur Village on 29.08.1990.

01.09.1990 Uppathu Kallivalasu ...P.Ws.27, 37, 39 and 42:

P.Ws.27 to 37, 39 and 42 have also spoken about the visit of the accused to their village on 01.09.1990 and that the accused collected Rs.150/= from each of them stating that the latrine basin would be

provided to them under the Intensive Sanitation Programme. The witnesses have spoken that the accused had obtained their signatures in blank application forms. Visit of the accused to Uppathu Kallivalasu

Village on 01.09.1990 is substantiated by the Diary entry in Ex.P-35 also.

11.10.1990 Upparu Dam - P.W.20:

After explaining about the Sanitation Scheme, the accused collected Rs.150/= from P.W.20 also. Visit of the accused to Upparu Dam is corroborated by the Diary entry - Ex.P.35.

All the witnesses have consistently spoken about the accused collecting money at the rate of Rs.150/= and that the accused had obtained their signatures in the Application forms. After collecting amount,

there was no response from the accused. The witnesses, who paid the amount to the accused, were trying to search for him. The accused did not make efforts to supply the latrine basin nor the receipt for

receiving the amount.

P.W.23 - Assistant in the Kundadam Panchayat Union Office and P.W.41 - Commissioner, Kundadam Panchayat Union have clearly spoken about the procedure under the Intensive Sanitation

Programme. As per the Subsidy Scheme, the person intending to benefit under the Scheme is to pay Rs.116/= towards the cost of latrine basin. After completion of the construction of the latrine as per the

prescribed specification, each one of the beneficiaries would be eligible for the subsidy amount of Rs.1280/= to be sanctioned by the Block Development officer concerned.

From the evidence of P.W.23 - Assistant, it is also made clear that no amount from the villagers Sengattupalayam, Maruthur, Uppathu Kallivalasu and Upparu Dam was remitted into Panchayat Union

Treasury. The applications were also not submitted to the Union Officer claiming benefit to those applicants. It is not as if the accused was ignorant of the procedure. During the questioning under Sec. 313 of

Crl.P.C., the accused has admitted about the procedure under Scheme and remittance of Rs.116/= into the Treasury and the eligibility of the subsidy Rs.1280/= to the individual beneficiaries. In fact, in ten

instances from Uppathu Kallivalasu, the accused himself had remitted the collected amount from the applicants into the Treasury. Thus the Appellant / accused is quite aware of the duty cast upon him to remit

the amount into the Treasury and submitting their applications to the Panchayat Union Office. From the evidence, it is clearly brought on record that nearly a long period between August and December 1990,

the accused had not remitted the amount till the villagers from Sengattupalayam had lodged Ex.P-29 Complaint to P.W.21 forwarding copy of the compliant to the District Collector and other officials.

Since the accused failed to discharge his duty, P.W.2 - Dhandapani Pillai and P.W.3 - Chinnasamy sent Ex.P.2 - Complaint to P.W.21. Ex.P.2 - Complaint is signed by other applicants also. Earlier

Departmental enquiry was held. The accused was suspended on 01.03.1991. The earlier Departmental enquiry and finding thereon has clearly brought out the guilty mind of the accused in not remitting the

amount. The act of the accused in not remitting the amount is not mere negligence or irregularity. But is proved to be deliberate omission in not remitting the amount.

In Ex.P.2 - Complaint, no specific date of payment of money is mentioned. It is only stated as @Rkhh; ehd;F khj'';fSf;F Kd;g[ Ch; ey mYtyh; jpU v/vk;/gHdpr;rhkp mth;fs; v'';fs; CUf;F te;J muR khd;a

Kiwapy; fHptiw fl;of; bfhLg;gjhff; Twp xt;bthUthplKk; 150 U:gha; tN:y; bra;Jbfhz;L tpz;zg;g'';fs; g{h;j;jp bra;J ifbahg;gk; th'';fpf; bfhz;L////@/ P.Ws.2 and 3 and other villagers have not specifically mentioned

the date in Ex.P.2 - Complaint. Likewise, in their earlier statements recorded by P.W.21 - Assistant Divisional Development Commissioner, Kundadam Panchayat, the witnesses have generally stated that

they have paid the money to the accused in the second week of August. The witnesses from Sengattupalayam have not specifically stated about the date (17.08.1990) on which the payments were made.

In their earlier complaints / statements, the witnesses from Maruthur and Uppathu Kallivalasu have also not stated about the exact date of payment of money to the accused. Much emphasis is laid upon

such non-mention of dates in the earlier complaints / statements, the learned Senior counsel has taken me through the evidence of witnesses and illustrative instances of complaints. It is contended, when the

witnesses have not mentioned the dates in their earlier complaints, no reliance could be placed upon their version of payment of money to the accused, on specific dates. It is his further contention that after

seizure of Diary of the accused and noting the entries in Ex.P.34 to 36, on which dates the accused had visited the respective villages for some other purposes, the Prosecution had tried to take advantage of

the same in fixing the dates. Main emphasis is laid upon Diary entries in Exs.P-34 to P-36, as per which, the accused visited the respective villages on some other official purposes.

By reasonable standard of appreciation of evidence, this contention cannot be sustained. Of course, in the earlier complaints preferred by P.Ws.2 and 3 (Ex.P.2), and Complaint by P.W.27 (Ex.P.39),

specific dates are not mentioned. In Ex.P-39, it is only stated @Cuhl;rp xd;wpak; K:yk; khdpaj;Jld; fHpg;g[ miw fl;o jUtjhft[k; mjw;fhd Kd;gzk; U:gha; xU Ehw;W Ik;gJ fl;l ntz;Lk; vd j'';fs; mYtyfg; gzpahsh;

jpU gHdpr;rhkp mth;fs; Twp vd;dplk; nkw;go bjhifiag; bgw;Wf;bfhz;L nkw;go bjhiff;fhd urPJ vJt[k; ,Jtiu bfhLf;ft[kpy;iy@/ Likewise, in their complaints and the earlier statements recorded from the witnesses

by P.W.21, exact date of payment of money to the accused is not mentioned. It is to be noted that the Prosecution witnesses, who paid the money to the accused, are rural and their remembrance cannot be

viewed with exactitude like persons of education, understanding. That apart, after payment of money, the complaints were lodged nearly 3 - 4 months after payment. The witnesses may not have exactly

remembered the date. Later, they might have recalled the dates. Non-mention of dates in the earlier complaint does not in any way undermine the consistent version of witnesses on the payment of money to

the accused.

The Prosecution relies upon the following entries in the Diary (Exs.P-34 to P-36) that the accused visited the villages Sengattupalayam, Maruthur and Uppathu Kallivalasu on various dates. The entries in

the Diary is as noted below:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Date Place Purpose

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

17.08.1990 br'';fhl;Lg;ghisak; rj;Jzt[ ikak; gs;sp rj;Jzt[k;

ghh;itaplg;gl;lJ/ FLk;g eyk;

kw;Wk; rpWnrkpg;g[ gzpfs; ftdpf;

fg;gl;lJ/

29.08.1990 kUJhh; jPtpu Rfhjhu gzpfs; ftdpf;?

fg;gl;lJ/

01.09.1990 fs;sptyR rpWnrkpg;g[ kw;Wk; FLk;gey jpl;l

gzpfs; kw;Wk; Rfhjhu fHpg;gpl

gzpfs; gw;wp ftdpj;njd;/

11.10.1990 cg;ghW nlk; FLk;g eyk; rpWnrkpg;g[ gzp

ftdpf;fg;gl;lJ/

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Thus the above entries do not specifically state that the accused had visited the Villages for the purpose of explaining the features of Intensive Sanitation Programme and meeting the villagers in connection

with the same. Main contention advanced onbehalf of the Appellant / accused is that the accused had visited the Villages on the above dates on other official purposes and that the Prosecution is only trying to

take advantage of the Diary entries. This contention has no merits. Even if the accused had visited the Villages on the respective dates on other official purposes, in all probability the accused would have met

the villagers in connection with explaining the features of the Scheme and collecting the money. Non-mention of the relevant purpose in the Diary entry does not affect the core of the prosecution case.

Inasmuch as 44 instances of receipt of money by the accused was reported. The accused had written the application forms. On his own hand he had written the particulars in Ex.P.25 - Chit -

acknowledging the receipt of money from P.W.20 - Subramani on 11.10.1990. While being so, it is not open to the accused to deny the receipt of money from the witnesses. Why 33 witnesses should testify

against the accused that he had received the amount and had not remitted the same into the Treasury as stated by him. The Prosecution witnesses have no motive or ill-will towards the accused. In that

circumstance, contention of the accused that a false case is foisted against him has no force.

In Ex.P-51, case was registered in Crime No.5/AC/91/PD on 18.09.1991. On discreet enquiry, Ex.P.51 - First Information Report was registered. Further investigation was not pursued. Investigation

was taken up only in the year 1994. P.W.43 - Inspector had examined the witnesses. Pointing out the delay in the investigation, the learned Senior Counsel for the Appellant / accused submitted that because

of the delay, there is every possibility of foisting a false case by introducing coloured version fixing the dates, etc. Ex.P-33 letter was sent by P.W.22 to the District Collector bringing it to the notice of the

Collector about the repeated dishonest act of the accused and seeking permission to launch the criminal prosecution. Thereafter, the accused was suspended on 01.03.1991. Departmental enquiry was

initiated against the accused. Result of the Departmental enquiry is not discernible from the materials on record. However, the guilty mind of the accused must have been disclosed during the Departmental

enquiry and thereafter the criminal prosecution was pursued. No unreasonable delay could be attributed to the investigation by taking up further investigation nearly after a period of three years in 1994. In the

facts and circumstances of the case, delay in taking of further investigation is reasonably explained.

As noted earlier, P.W.43 - Inspector of Police, Vigilance and Anti-corruption, on receipt of information registered the First Information Report in Ex.P-51. In the year 1994, he himself had taken up

further investigation and examined the witnesses and laid the charge sheet. Placing reliance upon 1995 Cri.L.J.3998 and unreported judgment of this Court in Crl.Appeal 571/1995 and other connected

Appeals, it is submitted that P.W.43 having registered the First Information Report, ought not to have investigated the case. It is further submitted that the investigation and the entire prosecution case is

vitiated on account of the Complainant himself being the Investigating Officer.

Unlike the above cases, in this case P.W.43 - Invesigating Officer had no part in the occurrence nor being witness to the occurrence. Only on receipt of information, he registered Ex.P-51 - the First

Information Report. The observation in the above decisions that Complainant cannot be the Investigating Officer cannot be applicable to the case in hand; more so, when no prejudice is caused to the

accused. This aspect was also raised before the trial court placing reliance upon number of decisions. In para (26) of its judgment, the trial court has carefully distinguished those decisions on factual aspects

and rejected this contention of the accused. The finding of the trial court that Complainant - P.W.43 himself being the Investigating Officer, would not undermine the invesigation and had not caused any

prejudice to the accused is to be endorsed with.

Evidence adduced by the Prosecution has clearly established beyond reasonable doubt the guilty mind of the accused. The Prosecution has brought about the essential ingredients of Sec. 420 IPC -

inducing 34 persons to pay Rs.150/= each. Though the amount was collected for the Intensive Sanitation Programme and to be remitted to the Treasury, the accused has dishonestly retained the same. The

designation of the accused is Rural Welfare Officer, Grade I at Kethelrev. But the accused had not acted for the welfare of the villagers from whom he collected the money. Prosecution has well established

that the accused has abused his position as a public servant.

The learned Special Judge had rightly convicted the accused under Sec. 420 IPC (34 counts); Sec. 13(2) r/w. 13(1)(d) of Prevention of Corruption Act (4 counts). The reasonings and findings of the trial

court are in conformity with the evidence on record. The finding of guilt and conviction is to be sustained.

The trial court has imposed sentence of imprisonment of two years for the conviction under Sec. 420 IPC and Sec. 13(2) r/w. 13(1)(d) of Prevention of Corruption Act and also imposed fine of Rs.100/-

for each count and sentences were ordered to run concurrently. The sentence of imprisonment and imposition of fine is neither unreasonable nor disproportionate warranting interference. This Appeal has no

merits and is bound to fail.

Therefore, the judgment of the Special Court / Chief Judicial Magistrate in Special C.C.101/1995 (dated 24.11.1997) convicting the Appellant / accused under Sec. 420 IPC (34 counts) and under Sec.

13(2) r/w. 13(1)(d) of Prevention of Corruption Act (4 counts) and the sentence of imprisonment and the quantum of fine imposed are confirmed and this Appeal is dismissed.

The trial court is directed to take immediate steps for securing the accused to commit him to prison for serving the remaining period of sentence.