R. Kothandam vs State

B. Akbar Basha Khadiri, J.—The Appellant herein who was found guilty offences under Sections 7 and (13)(2) of the Prevention of

Corruption Act read with Section (13)(i)(d)(i) of the Prevention of Corruption Act. Convicted and sentenced to undergo rigorous imprisonment for

one year and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for three months, has come forward with the instant Criminal

Appeal.

The Instant Criminal Appeal has arisen in this way:

The accused was working as Deputy Inspector of Survey in Egmore-Nungambakkam Taluk, Madras. P.W. 2 Parthasarathy is a contractor who is

running a construction concern under the name and style of ""New Constructions Corporation. One Jeyapandian. Samuel and his brother owned

3/4 ground of land in Choolaimedu area. They had entrusted construction of a building over the site to P.W. 2 Parthasrathy. For that purpose, they

had also authorized P.W. 2 Parthasarathy to obtain patta for the site in their names. About a week prior to the incident. P.W. 2 met the accused

two or three times with regard to obtaining patta. He was procrastinating. Subsequently, the accused Kothandam, one Selveraju and Mufhu came

to the house of Jeyapandian and wanted him to accompany them for the purpose of measuring the land. Jeyapandian went with the accused and

others, who measured the land and left. On 16.10.1989 at about 01.00 p.m., P.W. 2 Parthasarathy went to the office of the accused and made

enquiries regarding issuance of patta. The accused demanded Rs. 1,000/- as bribe money to recommend for issuance of patta. P.W. 2

Parthasarathy said that he could not offer Rs. 1,000/-, but he could only pay Rs. 500/-. The accused agreed and he gave a printed form to P.W. 2

Parthasarathy to get the signatures of Jeyapandian and his brothers and asked P.W. 2 to meet him on 20.10.1989. P.W. 2 Parthasarathy was not

willing to give bribe. Therefore, on 20.10.1989, at about 12.00 noon, he went to the Vigilance and Anti-Corruption Office situate at Wallace

Garden and gave Ex. P.3 complaint along with Ex. P.2 form given by the accused to him. The Deputy Superintendent of police sent for P.W. 13

Inspector of police Sundaravaradhan and directed him to take necessary action. P.W. 13 Inspector of police Sundaravaradhan received the

complaint from P.W. 2 Parthasarathy and registered Ex. P.4 First In-formation Report. He sent for P.W. 3 Swaminathan who was working in

Electricity Department and also one Sasikumar, who was working in Statistics Department. In their presence, P.W. 13 Inspector Sundaravardhan

received five 100 rupee currency notes from P.W. 2 Parthasarathy and demonstrated the phenophthalin test to P.W. 2 Parthasrathy, P.W. 3

Swaminathan and Sasikumar. P.W. 13 Inspector of police Sundaravardhan prepared Ex. P. 5 mahazer regarding phenophthalin test. In that

mahazer, he has also noted the numbers of currency notes. He has smeared phenol-phthalein power on the currency notes and gave them to P.W.

2 Parthasarathy with instruction that that should be given to the accused only when the accused demands. Then the party consisting of P.W. 13

Inspector of police Sundaravardhan. P.W. 2 Parthasarathy. P.W. 3 Swaminathan, Sasikumar and a typist who brought a typewriter, etc. went in

an Ambassador Car to a place nearer to the offices of the accused. The car was stopped and P.W. 13 Inspector Sundaravardhan directed P.W. 2

Parthasarathy the decoy witness and P.W. 3 Swaminathan shadow witness to go to the office of the accused and if the accused receives money, to

give certain signals.

Accordingly, P.W. 2 Parthasarathy and P.W. 3 Swaminathan went to the office of the accused. The accused was seated there. P.W. 3

Swaminathan stood outside the office room about three or four feat away from the table of the accused. The accused talked something in a low

voice to P.W. 2. Parthasarathy and according to P.W. 2 Parthasarathy, the accused wanted him to drop the money in his left side table drawer

which P.W. 2 did. According to P.W. 2 Parthasarathy, the accused counted the money with his left hand. But, according to P.W. 3 Swaminathan,

P.W. 2 Parthasarathy gave the money to the accused and the accused received the same with his left hand and put it in the drawer. Immediately,

P.W. 2 Parthasarathy came and made the prearranged signal, upon which the raiding party entered the room and asked the accused not to touch

anything and prepared sodium carbonate solution in two tumblers. They wanted the accused to dip his right hand fingers in one tumbler and left

hand fingers in another tumbler. The liquid, in which he left hand fingers were dipped, turned pink. When P.W. 13 Inspector Sundaravaradhan

demanded, the accused produced five 100 rupees currency notes which P.W. 13 verified with Ex. P.5 mahazar and found that the numbers tallied.

He prepared Ex. P.6 mahazar attested by witnesses. Later, the investigating officer completed the investigation obtained necessary sanction and

laid charge-sheet against the accused.

The learned trial Judge examined as many as fifteen witnesses, marked Exs. P. 1 to P. 14 documents and M. Os. 1 to 6 on the side of the

prosecution. When questioned the accused denied the offence. He examined one Deivasagayam as D.W. 1. He also marked Exs. D. 1 and D. 2

documents.

After trial, the learned trial Judge came to the conclusion that the prosecution has brought home the guilt to the accused beyond all reasonable

doubt and convicted him as aforesaid.

The accused has preferred the instant appeal, wherein he has raised the several contentions. According to him, the trial Judge erred in accepting

only the prosecution evidence. He had not considered the defence evidence. Further, phenolphthalein test is not a conclusive test to hold the

accused guilty. The other persons who were present in the office were not examined. The evidence of decoy witness and shadow witness are quite

conflicting and the learned trial Judge ought not to have accepted their evidence. In short, according to the learned Counsel for the Appellant, there

was no corroboration for the evidence of P.W. 2 regarding demand and acceptance.

Heard both sides. This is a case where a Deputy Inspector of Survey has been found guilty and convicted for offence under Sections 7 and

13(2) of the Prevention of Corruption Act read with Section 13(1)(d)(I) and (II) of the Prevention of Corruption Act. The main witnesses, who

speak of the occurrence, are P.Ws. 2 and 3. P.W. 2 is the decoy witness and P.W. 3 is the shadow witness. The fact that P.W. 2 Parthasarathy

gave complaint to P.W. 13 Inspector Sundaravardhan is not in dispute. P.W. 2 Parthasarathy is a contractor, who has many occasions to go to the

survey authorities for furnishing measurements of the lands, etc. It is the case of P.W. 2 Parthasarathy that the Appellant demanded Rs. 1,000/-

from him on 16.10.1989, but at the request of P.W. 2 Parthasarathy, he reduced the demand to Rs. 500/-. To hold that the Appellant made such

demand, we have no other evidence excepting the oral evidence of P.W. 2 Parthasarathy. P.W. 2 Parthasarathy does not seem to be a very

respectable witness whose evidence the Court can immediately accept. He would admit that he had been detained under Goondas Act and was in

prison for about fifteen days. The fact that he was detained in Goondas Act itself would cast a shadow on the reliability of his version.

Further, as laid down in State of U.P. v. Zakaullah (1998 SCC (Crl.) 456 ), P.W. 2 Parthasarathy as the complainant would have been

aggrieved by the conduct of the Appellant. The very fact that he has lodged a complaint with the Vigilance and Anti-Corruption. Bureau is

reflective of his grievances. Such a handicap in his evidence may require the Court to scrutinise it with greater care. In the decision cited supra.

Their Lordships of the Supreme Court have stressed that there cannot be outright rejection of his evidence at the threshold. The aggrieved person

whose evidence should be approached with caution and that the rejection of his evidence would help only corrupt officials getting insulated from

legal consequences.

Coming to the factum of receiving the bribe, P.Ws. 2 and 3 would speak of the same. In Meena v. State of Maharashtra (2000 SCC (Crl 878).

Their Lordships of the Apex Court have indicated the importance of shadow witness and the object of having such witness. It has been pointed out

by Their Lordships that Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such

witness to see but also to overhear what happens and how it happens.

P.W. 3 Swaminathan is the shadow witness. He has stated that he was standing at the distance of five feet away from the table of the Appellant

and outside the room where the Appellant was sitting. P.W. 2 Parthasarathy the decoy witness had stated that at the instance of the Appellant he

put the money in the left side table drawer of the Appellant. He had not stated that he talked with the Appellant. On the other hand, P.W. 3

Swaminathan would say that the Appellant and P.W. 2 talked something but their conversation did not reach his ears.

In Puran Chand Vs. State of Punjab, , a single Judge of the Punjab and Haryana High Court has pointed out that when the shadow witness did

not speak as to what transpired in the conversation between the bribe given and the accused, that would indicate absence of demand.

Further, when P.W. 2 Parthasarathy would say that the Appellant wanted money to be dropped in the table drawer, P.W. 3 Swaminathan

would say that the Appellant received the money with his left hand. If what the prosecution alleges is true, there cannot be two different versions

regarding the same occurrence coming from the mouth of the two different witnesses who actually participated in the procedure.

Under such circumstances, the prosecution ought to have examined the other persons who were present in that room. P.W. 4 Elango would

say that at the time when the Appellant was trapped, he was present one Na-garajan, Surveyor and one Ramani, Draft man, were also present.

Nagarajan was examined as P.W. 6. He had stated that he was sitting in the same hall. When examined by the Appellant, he had stated he had not

see anything. His version is to the effect that five or six other members of public were also present in the hall, whereas P.W. I3 the investigating

officer would say that no member of public was present in the hall, which conflicts with the version of P.W. 6 Nagarajan, it would thus appeal that

other officials were also present in that room and members of public were also there. None of them had been examined excepting the members of

the trap party.

It is pertinent to note that P.W. 2 Parthasarathy, the decoy witness himself would admit that one Deivasagayam was present at the time when

the Appellant was caught. Curiously, P.W. 13, the investigating officer, would deny the presence of Deivasagayam.

The Appellant had examined Deivasagayam as defence witness. Deivasagayam as D.W. 1 claims himself to be Gandhian and has deposed that

the Appellant did not receive any bribe money. According to him, the whole trap proceedings were unjust proceedings and that he had even raised

his voice against the arrest of the Appellant. When the presence of D.W. 1 was admitted by P.W. 2 Parthasarathy, there is no reason why P.W.

13 the investigating officer should try to cover up his presence. There is no reason why no statement u/s 161 Code of Criminal Procedure was

recorded from D.W. 1 Deivasagayam by P.W. 13 the investigating officer. I feel, the circumstance boils down to this position. The Appellant is

said to have received Rs. 500/- from P.W. 2 Parthasarathy had stated that he had not talked with the Appellant, whereas P.W. 3 Swaminathan

would say that the Appellant and P.W. 2 talked something, which was not audible. P.W. 4 Elango would say that one Ramani draft man was also

present in the hall along with him and P W. 6. P.W. 6 Nagarajan had stated that five or six members of public were present in the office at that

time, whereas P.W. 13 the investigating officer would deny the presence of such public. P.W. 2 Parthasarathy himself would admit that D.W. 1

Deivasagayam was present, whereas P.W. 13 the investigating officer denies the presence of D.W. 1 Deivasagayam. The evidence of P.W. 2 and

P.W. 3 are not corroborative regarding giving of money by P.W. 2 and also receiving the same by the Appellant, whereas the defence witness

D.W. 1 had stated that the Appellant had not received any money. of the two witness who speak of the trap P.W. 2 is the decoy witness who had

been detained under Goondas Act for fifteen days. The credit worthiness of his evidence is doubtful. The evidence of P.W. 3 Swaminathan is not

corroborating with the evidence of P.W. 2 in all material aspects. Under such circumstances, I feel that the learned trial Judge failed to appreciate

the evidence in the proper perspective and came to the conclusion that the Appellant is guilty of the offences charged. The phenolphthalein test is

not a conclusive test. It requires corroboration. In my considered opinion, there is no acceptable corroborative piece of evidence available. The

evidence is quite contradicting and conflicting. Under these circumstances, I feel that the Appellant is entitled to the benefit of doubt. I therefore set

aside the conviction and sentence imposed upon the Appellant by the learned trial Judge in C.C. No. 46 of 1991 on the file of the III Additional

Special Judge, Madras and acquit the Appellant of the offences. Accordingly, the Criminal Appeal is allowed. The fine amount if any paid by the

Appellant shall be refunded.