Gunasekaran vs State

S.M. Sidickk, J.—The appellant is the accused and the respondent is the complainant. This appeal is filed by the Appellant/Accused to set aside the conviction and sentence passed on him by the learned Chief Judicial Magistrate and Special Judge at Salem in Special C.C. No.8 of 1988 on 20-3-1989.

The prosecution case, as briefly stated, is as follows:-

P.W. l Manickam belongs to Karumanthurai village. He is a member of the Panchayat. Heap-plied for a loan from Indian Bank for developing his lands. He required the Revenue Settlement Register copy, sketch and valuation certificate of his properties. P.W.I Manickam along with his friend P.W.2 Ponnudurai, a tailor, went to the office of accused on 9-6-1987 at 10 a.m. and asked for the documents for which the Appellant/Accused, who is the Village Administrative Officer of Vadakku Nadu of Athur Taluk, demanded Rs.300/- as bribe. P.W.I Manickam said that he was unable to pay money for which the accused said that unless money was paid, the documents would not be given to him. Again P.Ws. 1 and 2 approached the accused on 12-6-1987 and asked for the documents. The accused insisted the demand and asked P.W. 1 Manickam to get the documents the next day. P.W.I Manickam did not want to pay the money. So at 3 p.m. on the same day i.e., on 12-6- 1987 P.W.I Manickam went to the office of the Vigilance and Anti Corruption at Salem and informed the Dy. S.P. of the Vigilance Department examined as P.W.9 Krishnasamy about the demand made by the accused. The complaint of P.W.I Manickam was recorded under Ex. PI and a case was registered. Then P.W.9 Krishnasamy asked P.W.I Manickam and P.W.2 Ponnudurai to come on the next day. On 13-6-1987 at about 8 am. P.W.I Manickam and P.W.2 Ponnudurai went to the office of P.W.9 Krishnasamy. Meanwhile P.W.9 Krishnasamy requisitioned the services of two witnesses for the trap, viz., P.W.3 Mohammed Kaleemullah, who is the Sub Registrar in the Co-operative department and one Narasimhan. P.W.9 Krishnasamy introduced the witnesses P.W.3 Mohammed Kaleemullah and Narasimhan to P.W. 1 Manickam and P.W.2 Ponnudurai.

Then P.W.I. Manickam produced the currency notes consisting of seven numbers of rupees twenty and one number of rupees ten, totally a sum of Rs.150/- marked as M.Os. l to 8. P.W.9 Krishnaswamy explained the Phenolpthaiene test to the witnesses examined as P.Ws 1 to 3 and one Narasimhan. P.W.9 Krishnaswamy then instructed P.W. 1 Manickam to pay the money to the accused as demanded by him and after that he was asked to give the signal of putting hands on his head. Ex.P8 is mahazar for taking the numbers of the currency notes with P.W. 1 Manickam. At 9.30 a.m. they proceeded to the office of the accused. P.W.9 Krishnaswamy and the trap witnesses stayed some distance away from there. P.Ws 1 and 2 went inside the office of the accused, who asked as to whether P.W. 1 Manickam has got the money, for which P.W.I Manickam replied in the affirmative. The accused asked them to wait for sometime and meanwhile he could prepare the copies of the documents required by P.W.I Manickam from him. At about 1.30 p.m. the accused called them and told that the copies of the records are ready. Thereafter the accused received a sum of Rs. 150/- from the witness P.W. 1 Manickam and told them that the records are in the Revenue Inspector''s office. The Revenue Inspector''s office and his quarters are situated in the same village and they are situated opposite to the office of the Village Administrative Officer, who is the accused therein. Then P.Ws 1 and 2 went along with the accused to the Revenue Inspector''s Office. The accused asked them to sit there for sometime and then verified the records and gave the copies of the records marked as Exs.P2 to P7 to P.W.I Manickam. Then P.W.I and 2 came out of the office of the Revenue Inspector and P.W. 1 Manickam gave the signal as instructed by Deputy Superintendent of Police of Vigilance Department. On seeing the signal the Deputy Superintendent of Police P.W.9 Krishnaswamy along with P.W 3 Mohammed Kaleemullah and Narasimhan went inside the room where the accused was sitting. Then P.W.9 Krishnaswamy introduced himself to the accused and asked the accused to dip both his hands in the tumblers and subjected the hands of the accused to Phenolpthaiene test. The test turned positive. Then P.W.9 Krishnaswamy questioned the accused about the money and the latter denied having received the money. Then P.W.9 Krishansamy called P.W. 1 Manickam and asked P.W.I Manickam as to whether the accused received the same and P.W. 1 Manickam told that after receiving the money the accused kept the money in his shirt pocket. Then the accused was asked to remove his shirt and the shirt marked as M.0.9 was subjected to Phenolpthaiene test and it turned positive. Then again P.W.9 Krishnaswamy questioned the accused and the accused took out the money from a register marked as Ex. P 10 kept in an open cement rack from the room of the south east of the building and handed over the same marked as M.Os 1 to 8 to P.W.9, who recovered the said money under the mahazar marked as Ex.P.9. Then after obtaining the sanction order as Ex. P.11 from the Assistant Collector of Salem examined as P.W.7. Jagmohan Sing Raju under EX.P11 and after completing the investigation, the Dy.S.P.P.W.9 Krishnaswamy laid the charge sheet against the accused in this case.

On the basis of the above allegations, the learned Chief Judicial Magistrate at Salem framed the charges u/s 161 of I.P.C. and u/s 5(1) (d) of the Prevention of Corruption Act of 1947 punishable u/s 5(2) of the said Act and the Appellant/Accused denied the charge and claimed to be tried. To substantiate the charges the prosecution examined P. Ws. 1 to 9 and filed the documents marked as Ex.Pl to P15 and the material objects marked as M.Os. 1 to 16.

When questioned u/s 313 of Cr. P.C. with reference to the incriminating circumstances available in the evidence on the side of the prosecution, the Appellant/Accused denied the same. However the Appellant/Accused filed a written statement stating that on 9.6.1987 P.Ws. l and 2 did not meet the accused and on 12.6.1987 P.W.I Manickam alone came and asked for the copies of the documents, and on the next day P.Ws 1 and 2 came to his office and accused asked him to wait, and as there was delay, P.W.I Manickam himself prepared the copies of the document on the particulars given by the accused, and in some of the documents the entries were made by the Village Staff Selvaraj, and the accused signed all the copies of the documents and then gave them to P.W. 1, and thereafter P.W. 1 offered money and the accused refused to receive the same, and thereupon P.W.I trusted the money into the pocket of the accused and the accused threw away the money and pushed P.W.I, and still P.W.I Manickam insisted to take the money, and the accused locked his office and came to the Revenue Inspector''s office and P.Ws.1 and 2 came there also, and the accused scolded them and asked them to get away from that place. The appellant/Accused did not choose to examine any witness on his side but he marked the register for fasli 1395 as Ex. Dl.

On consideration of the materials placed before him, the learned Chief Judicial Magistrate at Salem found the Appellant/Accused guilty of the charges u/s 161 of I.P.C. and u/s 5 (1) (d) read with Section 5(2) of Preventive of Corruption Act of 1947 and sentenced the Appellant/Accused to undergo rigorous imprisonment for a period of 18 months and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for a period of six months for the offence u/s 5(1)(d) read with Section 5 (2) of Prevention of Corruption Act 1947. No separate sentence was awarded for the offence u/s 161 of I.P.C. Aggrieved against the judgment of conviction and sentence the Appellant/Accused has come up in appeal.

After hearing the learned counsel for the appellant and the learned counsel appearing behalf of the Public Prosecutor the point that arises for determination is as to whether the prosecution has proved its case beyond all reasonable doubt and as to whether the Appellant/Accused is guilty of the offences with which he was charged and if so, what is the sentence.

Point:- It is the Prosecution case that on 13-6-1987 at about 1.30 p.m. the Appellant/Accused being a public servant employed as Village Administrative Officer of Vadakkunadu accepted a sum of Rs.150/- at the office at Karumanthurai from P.W. 1 Manickam as gratification for issuing copies of chitta, adangal, F.M.B. and the settlement register pertaining to the lands of P.W.I Manickam to enable him to get a loan from Indian Bank for reclamation of his lands, and thereby the Appellant/Accused committed the offences afore-said. The defence version is that P.W.I Manickam offered money and the accused refused to receive the same but P.W.I Manickam trusted the money into his pocket and the accused threw the money away. According to the Appellant/Accused the motive for foisting this case on him is that one Simarasan and P.W.I Manickam are close friends, and P.W.I Manickam assisted Simarasan when he was in the office as the Village Administrative Officer, and the Revenue Inspector held an enquiry as P.W.5 Viswalingam, who was the former Revenue Inspector of Karumanthurai and Simarasan, committed irregularity in assigning the lands to the landholders, and on a complaint given by the villagers Simarasan, who was the former Village Administrative Officer, was transferred, and thus P.W.6 Gopal, the Revenue Inspector, conducted an enquiry against Simarasan and the accused helped P.W.6 Gopal to conduct the enquiry by furnishing the village records and so the present case was foisted on the accused by Simarasan and his close friend P.W.I Manickam.

P.W. 1 Manickam is a member of the Panchayat. P.W.5 Viswalingam, who is previously the Revenue Inspector of Karumanthurai Village, admitted in his evidence that P.W.I Manickam is an important person in the said village. So the learned counsel for the Appellant/Accused contended that P.W.I Manickam is not a stranger from whom the Appellant/Accused would have demanded a sum of Rs.150/-, especially when the accused took charge of the post of the Village Administrative Officer 1 1/2 months prior to the occurrence, and P.W. 1 Manickam and P.W.5 Viswalingam had stated that the accused took charge as Village Administrative Officer on 1-5-1987 and the demand was made by the accused from P.W. 1 Manickam on 9-6-1987 and 12-6-1987 and the trap was made on 13-6-1987 and therefore the accused would not have demanded and accepted the bribe of Rs. 150/- from an important person like P.W.I Manickam. The above contentions are untenable because there is no hard and fast rule that the Village Administrative Officer like the accused would not have demanded a sum of Rs. 150/- from a member of the Panchayat. It is only a surmise or conjecture to say that the accused would not have demanded a sum of Rs. 150/- from a person like P.W. 1 Manickam.

It was next argued by the learned counsel for the Appellant/Accused that P.W.I Manickam had stated in his evidence that though he brought the money on the date of the trap and told the accused so, the accused did not demand the money immediately, and the P.W.I Manickam said that on 13-6-1987 he would pay the money after getting the records and such a version did not find a place in the statement of P.W.I Manickam recorded u/s 161 of Cr. P.C. by the Investigating Officer, and so on that ground the testimony of P.W. 1 Manickam should be rejected. Nowhere in the cross examination of P.W.I Manickam this omission was pointed out to him and an answer was elicited to the effect that he did not say in the statement given to the Investigating Officer u/s 161 of Cr. P.C. to the effect that he brought the money and the accused did not demand it immediately and P.W. 1 Manickam said that he would pay the money after getting the records. Even otherwise if such an omission was there in the statement of P.W. 1 Manickam recorded u/s 161 of Cr. P.C. it is not a vital contradiction which would go to the root of the matter and therefore on this ground the evidence of P.W.I Manickam cannot be rejected.

Another contention that was put forth by the learned counsel for the Appellant/Accused was that the prosecution case is that P.W.I Manickam and P. W.2 Ponnuthurai came out from the office of the Village Administrative Officer and they were standing outside for sometime and that is not stated in their statements recorded u/s 161 of Cr. P.C. and P.W.3 Mohammed Kaleemullah, who is the trap of witness, says that P.Ws 1 and 2 were inside the office of the accused viz., the office of the Village Administrative officer after entry for 2 1/2 hours and then only P.Ws. 1 and 2 came out and they were waiting outside, and in those circumstances the testimony of P.Ws. l and 2 should not be given any credence. Merely because P.Ws. 1 and 2 did not say about their waiting in their statements u/s 161 of Cr. P.C. it cannot be said that their testimony should be discarded for this omission. P.W.3 Mohammed Kaleemullah stated in his testimony that P.Ws. 1 and 2 were inside the office of the accused nearly for 2 1/2 hours and then only they came out and they were waiting outside for sometime, and it is in conformity with the testimony of P.Ws. l and 2. In those circumstances the contention of the learned counsel for the Appellant/Accused cannot be upheld on this ground.

11 Then the learned counsel for the Appellant/Accused pointed out that according to the prosecution, the accused had received the sum of Rs. 150/- from P.W. 1 Manickam in his office and according to the version of P.Ws. l and 2 they came out of the office of the accused along with the accused and they went to the residence cum office of the Revenue Inspector examined as P.W.5 Viswalingam and P.Ws.1 and 2 waited there for another half an hour and then only the records were handed over, and normally P.W.I Manickam would have given the prearranged signal when once the money had been handed over to the accused at his office itself, and P.W.2 Ponnuthurai also says in his evidence that he did not ask P. W. 1 Manickam to give the prearranged signal, and so the prosecution case that the money was given to the accused in his office cannot be accepted. In short the learned counsel for the appellant/accused submitted that the failure of P.W. 1 Manickam to give the pre-arranged signal immediately after the payment of money to the accused is fatal to the prosecution case. This contention is fallacious for the simple reason that the revenue records required by P.W.I Manickam were not handed over to him by the accused at his office immediately after the payment and so P.W. 1 Manickam waited for handing over of the revenue records marked as Ex.P2 to P7 and then only he gave the pre-arranged signal. In such circumstances one cannot expect P.W.I Manickam to give the pre- arranged signal immediately without getting the revenue records marked as Exs.P2 to P7 from the accused in the office of the Revenue Inspector examined as P.W.5 Viswalingam.

Next it was argued by the learned counsel for the Appellant/Accused that P.W.I Manickam admitted that he made certain entries in the F.M.B. plan marked as Ex.P4 whereas it was denied by P. W.2 Ponnuthurai, who was present throughout, and in view of this contradiction, the testimony of P. Ws 1 and 2 should not be given any credibility. P.Ws. 1 Manickam stated in his evidence that the accused was busy and so he himself noted down four or five numbers in the F.M.B. plan marked as Ex.P4 at the dictation of the accused and as requested by the accused. P.W.2 Ponnuthurai had only stated that P.W. 1 Manickam did not write anything in the copies of the revenue records marked as Exs.P2 to P7. At any rate it is not a vital contradiction which would dislodge the prosecution case.

13 Then the learned counsel for the Appellant/Accused stated that it was brought out in the evidence of P.W.I Manickam that one Selvaraj was coming and going out of the office of the accused, and it is the defence version that some of the documents were prepared by Selvaraj, and so the evidence of P.W. 1 Manickam mat it is only the accused, who prepared the copies under Ex.P2 to P7 should not be believed. Nowhere in his testimony P.W.I Manickam had stated that some of the documents were prepared by Selvaraj even though P.W.I Manickam stated that Selvaraj was coming and going out of the office of the accused Merely because one Selvaraj came there, it cannot be said that some of the documents marked as Exs.P2 to P7 were also prepared by him.

The learned counsel for the Appellant/Accused then argued mat mere is no reference in the complaint given by P.W. 1 Manickam and marked as Ex.Pl to the effect that P.W.2 Ponnuthurai accompanied P.W. 1 Manickam on 9-6-1987 and 12-6-1987 when they met the accused who demanded money, and P.W.2 Ponnuthurai has been brought in later purposely, and P.W.2 Ponnuthurai was running a tailoring shop which was opened on all days including the dates 9-6-1987, 12-6-1987 and 13- 6-1987, and P.W.2 Poonuthurai says in his evidence that the demand of the accused was unjust and P.W.2 Ponnudiurai thought that the complaint should have been given on the first date itself and the same was accepted by P.W. 1 Manickam also, and yet the complaint was not given on the first date but the complaint was given on the next date i.e., 12-6-1987, and in such circumstances the testimony of P.W.2 Ponnuthurai should not be believed. According to P.W. 1 Manickam he stated before the Deputy Superintendent of Police, who recorded his complaint under Ex. Pl that P.W.2 Ponnuthurai accompanied him on 9-06- 1987 and 12-6-1987 and however it did not find a place in his complaint. Nodiing was elicited from the Deputy Superintendent of Police examined as P.W.9 Krishnasamy on this aspect during his cross examination. Therefore it follows mat even though P.W. 1 Manickam had stated about the company of P.W.2 Ponnuthurai with him on 9-6-97 and 12-6-1987, the same was not written in his complaint by the Deputy Superintendent of Police marked as Ex.Pl in this case. Therefore there is an explanation given by P.W.I Manickam for the omission of the company of P. W.2 Ponnuthurai with him on these two dates in his complaint marked as Ex.Pl. No doubt P.W.I Manickam testified that the demand made by the accused on 9-6-1987 was unjust and he suggested to P.W.I Manickam to give the complaint on the same day which was accepted by him but they did not go to Salem to give the complaint, and again they went to the accused on 12-6-1987 only at the instance of P.W.I Manickam, and on 12-6-1987 P.W.2 Ponnuthurai did not question the witness P.W.I Manickam as to why they should go to the accused once again on 12-6-1987. It is only for P.W.I Manickam to say as to why he went to the accused on 12-6-1987 and P. W. 1 Manickam had stated that he bargained for the sum of Rs.300/- originally demanded by the accused and later it was reduced to Rs.150/-and that is the reason why P.W.I Manickam did not prefer a complaint on 9-6-1987 even though it was suggested to him by P.W.2 Ponnuthurai. In those circumstances the testimony of P.Ws 1 and 2 cannot be discredited on the ground that the complaint was not given on 9-6-1987 as advised by P.W.2 Ponnuthurai to P.W.I Manickam.

A careful scrutiny of the oral evidence of P.W.I Manickam and P.W.2 Ponnuthurai would reveal that their evidence is natural, cogent and convincing. There is no infirmity in their testimony. There was no enmity between P.W.I Manickam and the accused. The accused has admitted in his proceedings u/s 313 of Cr. P.C. that P.W.I Manickam was an agriculturist and he was owning 10 acres of land, and he was the Village Administrative Officer while P.W. 1 Manickam was a member of Panchayat. P.W.2 Ponnuthurai is a tailor by profession and he is an independent witness and he has no axe to grind as against the accused. In those circumstances I am of the view that the evidence of P.Ws. l and 2 is entitled to acceptance in this case. There is no inconsistency or improbability in the testimony of P.W. 1 Manickam and P.W.2 Ponnuthurai which would falsify the prosecution case. The evidence of P.W.I Manickam and P.W.2 Ponnathurai satisfactorily proves beyond all reasonable doubt that the accused demanded a sum of Rs.150/- from P.W./l Manickam and obtained the same for himself as gratification other than legal remuneration.

P.W.5 Viswalingam admitted in his evidence that himself and the previous Village Administrative Officer Simarasan assigned lands to persons who were holding patta lands and there were some irregularities about the same. P.W.6 Gopal also deposed that there was an enquiry against the previous Revenue Inspector examined as P.W.5 Viswalingam and the previous Village Administrative Officer Simarasan, and the accused was assisting him in the said enquiry by placing the records. Therefore on the basis of the evidence of P.Ws.5 and 6 the learned counsel for the Appellant/Accused argued that the accused was responsible for bringing to light the irregularities committed by P.W.5 Viswalingam, Simarasam and P.W. 1 Manickam, and therefore they have foisted this case on the accused by implicating him. It is not the evidence of P.W.5 Viswalingam that P.W.I Manickam was also hand in glove with him and also with Simarasan when lands were assigned to persons who were already owning patta lands. As a matter of fact when a suggestion was thrown to P.W.5 Viswalingam that himself, Simarasan and P.W. 1 Manickam are good friends and all the three conspired together to foist a false case on the accused, P.W.5 Viswalingam denied the same. There is no material on record to show that P.W.I Manickam is a good friend of Simarasan and P.W.5 Viswalingam, and P.W. 1 Manickam was also responsible for assigning the lands to such of those persons who were already holding patta lands. Therefore the defence version is not even established by preponderance of probabilities. It is needless to say that the accused need not establish the defence version by positive words. But it can be established by preponderance of probabilities. There is no inconsistency, improbability and unnaturally in the evidence of P.Ws 1 and 2 in this case.

The evidence of P.W.I Manickam and P.W.2 Ponnuthurai is corroborated by the testimony of the trap witness examined as P. W.3 Mohammed Kaleemullah. He is the Sub Registrar of the Co-operative Department. He is an independent witness. According to P.W.3 Mohammed Kaleemullah the accused only pointed out that the money was placed inside the register marked as P10 series kept in the cemeni rack or almirah though P.W.3 Mohammed Kaleemullah would admit that the accused when questioned in the first instance denied having received the money of Rs. 150/-from P.W.I Manickam. However P.W.3 Mohammed Kaleemullah stated that P.W. 1 Manickam was again called by the Investigating Officer examined as P. W.9 Krishnaswamy and the witness P.W.I Manickam affirmed that the accused received the tainted money of Rs.150/- and put it in his shirt pocket. Then the Investigating Officer P.W.9 Krishnaswamy subjected the shirt pocket of the accused marked as M.O. 9 to Phenolpthaiene test and it turned positive and thereupon P.W.9 Krishnaswamy once again questioned him and then the accused pointed out the register marked as Ex. P10 from where the tainted money was taken away and given to the Investigating Officer. Then P.W.3 Mohammed Kaleemullah verified the numbers of the currency notes and they were found to be the same as mentioned in the mahazar prepared earlier under Ex.P8 and then the tainted money was recovered in the presence of witnesses under the Mahazar marked as Ex.P9 in this case. Therefore the evidence of the independent witness examined as P.W.3 coupled with Phenolpthaiene test conducted on the hands of the accused and on the shirt pocket of the accused will fully corroborate the evidence of P.Ws 1 and 2 Manickam and Ponnuthurai in this case.

Then the learned Additional Public Prosecutor had drawn my attention that the tainted money of Rs.150/- was recovered from the cement rack in the office of the Revenue Inspector and that has been accepted by the accused in the proceedings u/s 313 of Cr. P.C. But the accused would state in the proceedings u/s 313 of Cr. P.C. that this amount of Rs.150/-was trusted into his shirt pocket and the admissions made by the accused would also lend support to the prosecution story. The learned Senior Counsel appearing on behalf of the Appellant/Accused stated that the statement made by the accused in the proceedings u/s 313 of Cr. P.C. is not sufficient to bring home the guilt of the accused. In support of the above contention the senior counsel appearing on behalf of the Appellant/Accused cited the decision of the Supreme Court reported in Banshi Lal Yadav v. State of Bihar (1981 M.L.J. (Cri) 537), wherein at Page 538 it was held as follows:-

Before the presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined u/s 313 of the Code of Criminal Procedure, with reference to the circumstances appearing against him in evidence, only stated that currency notes were trusted in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration, so as to be able to raise the presumption. Acceptance or obtaining, or agreeing, to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing.

The decision reported in 1981 M.L.J.(Cri) 537 is a case, where at the hearing of the appeal, the learned Appellate Judge first referred to the statement of the accused recorded u/s 313 of Cr. P.C. and after referring to the statement of the accused u/s 313 of Cr. P.C, the learned Appellate Judge reached the conclusion that the accused in that case had admitted receiving the marked tainted currency notes and therefore the presumption u/s 4 of the Prevention of Corruption Act of 1947 would arise. So the learned Appellate Judge in that case then proceeded to hold that the accused has not rebutted the presumption and thereupon he confirmed the conviction but reduced the sentence. But here is a case where there is acceptable evidence which proves that the accused has demanded a sum of Rs. 150/- and obtained the same for himself as illegal gratification from P.W.I Manickam. Besides the reliable testimony of P.Ws. l and 2 supported by the evidence of P.W.3, the presumption u/s 4 of Prevention of Corruption Act of 1947 would also arise which presumption has not been rebutted by the accused by pointing out any improbability or unnatural-ness in the evidence of the prosecution case to probabilise the defence version. Therefore in my view the facts in the decision reported in 1981 M.L.J. Cri 536 are different from the facts the present case and the decision cited supra will have no application to the facts of the present case.

The learned Senior Counsel for the Appellant/Accused further contented that the sanctioning authority has not applied his mind to grant sanction and therefore the sanction granted to prosecute the accused is not valid under law. In this connection he also relied on the decisions reported in Charles Waker Devadas v. State by the Inspector of Police, etc (1993 L.W. (Crl.) 346) and N.M. Rajendran v. State represented by Inspector of Police, Vigilance and Anti Corruption Department Madras( l995 (2) L.W. (Crl.) 549)

Per contra the learned Additional Public Prosecutor appearing on the side of the prosecution would say that the sanctioning authority himself was examined as a witness as P.W.7 Jag Mohan Sing Raju and he had spoken to the fact that he has perused the statements and records and he applied his mind and thereafter only he accorded sanction and it is a valid one. In support of the above contention the learned Additional Prosecutor relied on the decisions reported in K. Nachimuthu Vs. State, and State of Tamil Nadu v. Damodaran ( 1993 S.C.C. (Crl.) 272).

The decision relied on by the learned Senior Counsel for the Appellant/Accused are all in respect of the cases, where the statements and materials were not placed before the sanctioning authority. But here is a case where the statements and other records were placed before the sanctioning authority examined as P.W.7 Jag Mohan Sing Raju, who categorically stated in his chief Examination as follows:-

I perused all the statements and other records and I am satisfied that mere was a prima facie case against the accused u/s 161 of I.P.C. and Section 5(1)(d) and 5(2) of the Prevention of Corruption Act. I satisfied that the accused should be tried by a competent Court. Then I accorded sanction for the prosecution of the accused. Ex. P11 is the sanction order passed by me.

Not a single question was put to this witness examined as P.W.7 Jag Mohan Sing Raju during his cross examination. His testimony was not contradicted. His evidence goes unchallenged. His version will amply prove that he has perused all the papers and other records and he applied his mind and men satisfied about the prima facie case against the accused and thereafter only he accorded the sanction under Ex. P11. Therefore in my view the decisions relied on by the learned Additional Public Prosecutor will apply to the facts of the present case. The testimony of the sanctioning authority himself as P.W.7 coupled with the sanction order marked as Ex.P. 11 would establish that the sanction granted by him to prosecute the accused is valid under law. Considering the above facts and circumstances of the case I hold that the prosecution has proved its case beyond all reasonable doubt and the Appellant/Accused is guilty of the offences u/s 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act and u/s 461 of I.P.C.

Now turning to the question of sentence, the trial Court has awarded a lenient sentence of 18 months'' rigorous imprisonment with a fine of Rs. 1,000/- for the offence u/s 5(1)(d) read with Section 5(2) of Prevention of Corruption Act and no separate sentence was passed by the lower Court for the offence u/s 161 of I.P.C. There is no mitigating circumstance pointed out to reduce or to modify the sentence awarded by the lower Court. However the learned Senior Counsel appearing on behalf of the Appellant/Accused claimed the benefit of remission of sentence in accordance with the G.Os. passed by the Tamil Nadu Government. In this respect he has drawn my attention to a decision of our High Court reported in R. Dhasan In Re ( 1992 M.L.J. (Cri) 18 ), wherein it was laid down as follows:-

The State Government, therefore, can remit the sentences imposed both u/s 161 of I.P.C. as well as under the Prevention of Corruption Act, 1947. The instant case has been investigated only by the Inspector of Police, Vigilance and Anti Corruption, Nagercoil and as such, it will not fall under the prohibition contained in Section 435 of Cr. P.C. Investigation is not by any wing created by the Delhi Special Police Establishment Act of 1946. There is, therefore, no legal impediment to extend the benefit of the abovesaid to Government orders to the appellant convicted for the abovesaid offences.

The present case is also one investigated by the Deputy Superintendent of Police, Vigilance and Anti Corruption at Salem and as such I am of the view that the Appellant/Accused will be entitled to the benefits of remission of sentence in accordance with the G.Os. passed by the Tamil Nadu Government.

Taking into consideration the above facts and circumstances of the case I hold that this appeal has to be dismissed, and the Judgment of conviction and sentence passed by the learned Chief Judicial Magistrate and Special Judge at Salem in Special C.C.N0./88 on 20-8-1989 is confirmed, and the Jail authorities will give remission of sentence in accordance with the G.Os. passed by the Tamil Nadu Government to the Appellant/Accused, and I answer this point accordingly.

In the result the appeal is dismissed. The Judgment of conviction and sentence passed by the learned Chief Judicial Magistrate and Special Judge at Salem in Special C.C.N0.8/88 on 20-3-1989 is confirmed. The Jail Authorities will give remission of sentence to the Appellant/Accused in accordance with the G.Os. passed by the Tamil Nadu Government.