M. Selvaraj and P. Muniappan vs The State

A. Selvam, J.—The conviction and sentence dated 19.06.2003 passed in Calendar Case No. 8 of 2002 by the Principal Special Court (for CBI cases), Madurai are now under challenge.

The nubble of the prosecution case is that the first accused viz., Selvaraj has served as Regular Mazdoor from 18.06.2000 to 05.03.2002 and the second accused has served as Telecom Mechanic from 22.09.2000 to 05.03.2002 at Odaipatti Telephone Exchange, Dindigul District. The defacto complainant by name S.Kalimuthu has been residing at Edaivanvalasu, Keeranur Post, Odaipatti, Oddanchatram Taluk, Dindigul District and he applied for getting a new telephone connection to his residence under non OYT scheme on 06.08.1999 to the Sub-Divisional Engineer, Telephone Exchange, Oddanchatram and he has been subsequently issued a demand note bearing No. SB/99-00-308 dated 07.08.1999 and on receipt of the same, the defacto complainant has remitted a sum of Rs. 2,000/- on 29.09.1999 and he has been given waiting list No. 387 of Kallimandayam Telephone Exchange. Both the accused have entered into a criminal conspiracy during the month of February-March 2002 to take illegal gratification from the defacto complainant. On 04.03.2002 they demanded Rs. 1,000/- as illegal gratification from the defacto complainant and on 05.03.2002 also they demanded the same and received Rs. 1,000/- as illegal gratification. On the same day, at about 14.40 hours both of them have been trapped. Under the said circumstances, the accused are said to have committed offences under Sections 120-B of the Indian Penal Code r/w Section 7 & 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.

The investigating agency has conducted investigation and after completing the same, laid a final report on the file of the trial Court.

On the basis of the accusation made against the accused, the trial Court has framed necessary charges under Sections 120-B of the Indian Penal Code r/w Section 7 & 13(1)(d) of the Prevention of Corruption Act, 1988 and also u/s 7 & 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and the same have been read over and explained to them. Both the accused have denied the charges framed against them and claimed to be tried.

On the side of the prosecution, PWs. 1 to 6 have been examined and Exs. P1 to P22 and MOs.1 to 5 have been marked.

When the accused have been questioned u/s 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crimes. However, no oral and documentary evidence have been let in on the side of the accused.

The trial Court, after perpending both the oral and documentary evidence has found the accused guilty under the Sections mentioned in the charges and sentenced them to undergo one year rigorous imprisonment and also imposed a fine of Rs. 500/- for each offence. Against the conviction and sentence passed by the trial Court, the present criminal appeal has been filed at the instance of the accused.

The learned Counsel appearing for the appellants/accused has contended with great vehemence that the accused cannot give telephone connection and the junior engineer only can give the same and the defacto complainant has not said anything about the demand made by the first accused and the alleged recovery is noting but an artificial and both the demand as well as recovery have not been proved by the prosecution and under the said circumstances, the conviction and sentence passed by the trial Court against the appellants/accused are not legally tenable and the same are liable to be set aside.

In order to repudiate the argument advanced by the learned Counsel appearing for the appellants/ accused, the learned Special Public Prosecutor (for CBI cases), has also equally contended that in the instant case the prosecution has clearly proved the alleged demand made by both the accused and accordingly, the defacto complainant has given Rs. 1,000/- to the second accused and the second accused has received the same for himself and also on behalf of the first accused and the said amount has also been recovered from the second accused and under the said circumstances, both the alleged demand as well as recovery of the said amount have been clearly proved by the prosecution and the trial Court, after scrutinising all the evidence available on record, has rightly found the accused guilty under the sections mentioned in the charges and therefore, the argument advanced by the learned Counsel appearing for the appellants/accused is sans merit and altogether the present criminal appeal deserves dismissal.

The accused have faced charges under Sections 120-B of the Indian Penal Code r/w Section 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 and also under Sections 7 & 13(1)(d) r/w 13(2) of the said Act.

Before analysing the rival submissions made by either counsel, it would be more useful to look into the relevant sections of the Prevention of Corruption Act, 1988.

Section 7 of the said Act reads as follows;

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine.

Section 13(1)(d) of the said Act reads as follows;

13.Criminal misconduct by a public servant.- (1)A public servant is said to commit the offence of criminal misconduct,-

(a) (b) (c) ....

(d) if he,-

(i)by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;

Section 13(2) of the said Act reads as follows;

Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

From the close reading of the provision of Section 7 & 13(1)(d) of the said Act, the Court can easily discern that if any public servant accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice shall be liable to be punished.

Section 13(2) of the said Act says that if any public servant who commits criminal misconduct, shall be imprisoned for a term which shall not be less than one year.

With these legal aspects, the Court has to analyse the arguments advanced by either counsel.

The sum and substance of the argument advanced by the learned Counsel appearing for the appellants/accused is that the accused are not competent persons to give service connection to the defacto complainant and the junior engineer alone is a competent person and therefore, the demand of the amount in question alleged to have been made by both the accused is nothing but apologue and further the alleged recovery is also equally a myth. Since the alleged demand and also receipt of the amount in question from the defacto complainant as well as the alleged recovery from the second accused have been clearly denied on the side of the appellants/accused, it is for the prosecution to establish the same even without a speck of doubt.

PW 1 by name Elamaran has passed necessary sanction order to prosecute the first accused and likewise, PW 2 viz., Vasimalai has passed necessary sanction order so as to prosecute the second accused. The role played by PWs. 1 & 2 has not been questioned on the side of the appellants/accused. It is an admitted fact that the defacto complainant by name Kalimuthu (PW 3) has given an application for getting a new telephone connection to his residence and the same has been marked as Ex. P2. On the basis of Ex. P2, a memo has been given to the defacto complainant and the same has been marked as Ex. P3. The concerned Demand Note and Advice Note have been marked as Exs.P3 & P4.

The prosecution has set the law in motion only on the basis of complaint dated 05.03.2002 given by the defacto complainant viz., PW 3 and the same has been marked as Ex. P8. In Ex. P8 it has been clearly stated that the defacto complainant has given a requisition for getting new service connection and accordingly, he has remitted a sum of Rs. 2,000/. The first accused has demanded Rs. 1,000/- so as to bring telephone post to the house of the defacto complainant and he has also demanded Rs. 1,000/- for giving telephone connection and further it has been clearly stated that on 04.03.2002 the first accused has demanded Rs. 1,000/- and the second accused has also stated that he is in-charge of the area in question and unless the amount demanded by the first accused is given, the wire connection will be removed. Further it is stated in Ex. P8 that the first accused has stated that on 05.03.2002 either he or the second accused would come to the house of the defacto complainant and the amount demanded by them should be given either to him or to the second accused.

The author of Ex. P8 (defacto complainant) has been examined as PW 3. He has clearly stated in his evidence about the requisition given by him for getting new service connection and also amount paid by him and further he has stated in his evidence that wire connection has been given to his house and the persons who have given wire connection, has directed him to meet them and accordingly, he met the first accused and he has stated that he would come to his house next day and also directed him to keep money readily and further he has stated in his evidence that on 05.03.2002 he has given the complaint which has been marked as Ex. P8 and also given Rs. 1,000/- to the Inspector of CBI. The Inspector of CBI, after observing all legal formalities, has directed him and also directed one Michael Ponraj to go to his house and accordingly both of them have gone to his house and on the same day, at about 02.30 p.m. the second accused viz., Muniappan has come to his house and demanded Rs. 1,000/- and accordingly he has given the same to the second accused and he kept it in his T-shirt pocket and after some time the Inspector of CBI has come to his house and after observing all formalities recovered the same from the second accused.

The decoy witness by name Michael Ponraj has been examined as PW 4. He has stated in his evidence that he is working as Depot Materials Superintendent in Metro Transport Project, Chennai and also served as Chief Vigilance Inspector in Southern Railway, Chennai. On 05.03.2002 he made a visit to Dindigul and at that time he received a message from Camp Office, Southern Railway, Dindigul to the effect that his assistance is required by CBI officials. On the same day, at about 10.00 a.m. he and Nazeer have gone to the Officers Rest House, Southern Railway, Dindigul and met the Inspector of CBI viz., Suresh Kumar (PW 5) and at that time PW 3, Kalimuthu has given Ex. P8, complaint and the same has been read by Suresh Kumar and he has also verified the same. Further he has stated in his evidence that PW 3 has handed over Rs. 1,000/- to Suresh Kumar and he asked him to count the same and accordingly he counted it and subsequently Suresh Kumar has observed all legal formalities and thereafter he directed him to go along with PW 3 and accordingly both of them have gone to the house of PW 3. On the same day, the second accused has come to the house of PW 3 and the second accused has stated about the formalities for giving telephone connection and further he has stated that he has to give a share to his colleague and also to his junior engineer. The second accused has mentioned his colleague name as Selvaraj. PW 3 has handed over Rs. 1,000/- to the second accused and the second accused has counted the same and kept it in his left side T-shirt pocket and subsequently, he has given signal and CBI officials have come to the house of PW 3 and they enquired the second accused and he accepted that he received Rs. 1,000/- from PW 3. The second accused has been asked to raise his hands and subsequently the CBI officials have observed all formalities and recovered the money which has been received by the second accused.

The said Suresh Kumar has been examined as PW 5. He has also stated in his evidence about the complaint given by PW 3 and subsequent arrangements made by him and further he has stated in his evidence that as per his direction, PWs. 3 & 4 have gone to the house of PW 3 and after some time, PW 4 has given a signal and he and others have entered into the house of PW 3 and enquired the second accused and the second accused has accepted the receipt of Rs. 1,000/- from PW 3 and he has also handed over the same.

From the evidence of PWs. 3 to 5 coupled with Ex. P8, the Court can safely come to a conclusion that both the accused have demanded Rs. 1,000/- from PW 3 so as to give telephone connection to his residence and accordingly, the second accused has received the same. Therefore, the demand alleged to have been made by both the accused as well as receipt of Rs. 1,000/- from PW 3 by the second accused for himself and also on behalf of the first accused have been clearly proved by the prosecution.

The learned Counsel appearing for the appellants/accused has accited the following decisions;

a)In 2001 (2) Law W (cri) 861 (Jothiramalingam @ Jothi v. State: through Inspector of Police, Vigilance and Anti-Corruption, Thanjavur) this Court has held that since the prosecution case through the materials placed was that A1 asked A2 to receive the money as bribe and consequently A2 received the same and the said demand by A1 through A2 has been disbelieved, A2 cannot be convicted for the mere receipt of the money from PW 2 and ingredient of Section 8 of the Prevention of Corruption Act, 1988 is not made out.

b)In Subash Parbat Sonvane Vs. State of Gujarat, the Honourable Apex Court has held that mere acceptance of money is not sufficient for convicting the accused u/s 13(1)(d)(i) of the Prevention of Corruption Act, 1988 and there must be evidence on record that the accused obtained any amount by corrupt or illegal means. The complainant has not not supported the case on the points of demand and acceptance.

c)In 2004 Scc (cri) 220 (Suchand Pal v. Phani Pal and Anr.) the Honourable Apex Court has held that if two views are possible, one which favours the accused should be preferred.

d)In 2004 Scc (cri) 1888 (State of Rajasthan v. Bhanwar Singh and Ors.) the Honourable Apex Court has held that possibility of two views i.e. one of acquittal and other of conviction, and acquittal by the High Court cannot be interfered with.

e)In 2006 (1) Law W (Crl.) 269 (T. Subramanian v. State of Tamil Nadu) it has been held that if the reason for receiving the amount is explained and it is probable and reasonable, then the appellant has to be acquitted.

f)In 2006 (2) Law Weekly (Crl.) 965 (Ramakrishnan v. the Inspector of Police, D & VAC, Chennai) this Court has held that mere proof of receipt of the 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.

From the conjoint reading of the decisions referred to earlier, the Court can easily cull out the following aspects;

a)In a corruption case, there must be a demand of money and also receipt of the same as illegal gratification.

b)Mere receipt of money without proof of demand is not sufficient to attract the provisions of Prevention of Corruption Act, 1988.

c)If sufficient and acceptable reason has been given with regard to receipt of money, definitely, the same should be considered for giving acquittal to the concerned accused.

d)If two views are possible and one favours the accused, the Court must accept the same.

In the instant case as expounded earlier, the demand of money from PW 3 by both the accused has been clearly established and likewise, receipt of Rs. 1,000/- by the second accused for himself and also on behalf of the first accused has also been equally established. Further on the side of the accused, no acceptable reason has been given with regard to possession of money in question by the second accused and further two views are not in existence in the present case. Considering the facts mentioned supra, it is needless to say that the dictums given in the decisions referred to earlier, are not suitable to the facts and circumstances of the present case.

The trial Court, after making thorough discussion has rightly found the accused guilty under the Sections mentioned in the charges and in view of the foregoing elucidation of both the factual and legal aspects, this Court has not found any valid force in the argument advanced by the learned Counsel appearing for the appellants/accused, whereas the argument advanced by the learned Special Public Prosecutor (for CBI cases) is really having subsisting force.

In fine, this criminal appeal deserves dismissal and accordingly is dismissed and the conviction and sentence passed in Calendar Case No. 8 of 2002 by the Principal Special Court (for CBI cases), Madurai are confirmed. If the appellants/accused are not in duress, the trial Court is directed to take appropriate steps to immure them in prison so as to serve out the remaining period of sentence.