R. Sethu and Velmurugan vs State

A. Selvam, J.—Challenge in these criminal appeals is to the conviction and sentence dated 10.12.1998 passed in Special Case No. 3 of 1994 by the Special cum First Additional District and Sessions cum Chief Judicial Magistrate Court, Tirunelveli.

The epitome of the prosecution case can be stated like thus;

On 26.04.1993 the first accused has served as Sub-Registrar and the second accused has served as Assistant in Sivagiri Sub-Registrar Office. On the said date, the complainant by name Balasubramaniam has applied for getting encumbrance certificate in respect of Survey Nos.1003, 1004 & 1006, situate in Rayagiri Village. In order to furnish encumbrance certificate to the complainant, the first accused has demanded Rs. 50/- and the second accused has demanded Rs. 50/- by way of illegal gratification. In pursuance of their demand, the complainant has given Rs. 50/- to the first accused and Rs. 30/- to the second accused on 28.04.1993 by way of illegal gratification and both the accused have received the said amounts. Under the said circumstances, both the accused have committed offences under Sections 7 and also u/s 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

On the basis of the complaint, which has been marked as Ex.P5, the investigating officer has done investigation and after completing the same, laid a final report on the file of the trial Court.

On the basis of the culpability of the accused, the trial Court has framed a charge under Sections 7 and also u/s 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against them and the same have been read over and explained to them and they made candid denial and claimed to be tried.

On the side of the prosecution, PWs.1 to 7 have been examined and Exs.P1 to P19 and MOs.1 to 13 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. On the side of the accused, DWs.1 & 2 have been examined and Exs.D1 to D8 have been marked.

The trial Court, after contemplating both the oral and documentary evidence, has found both the accused guilty under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced them to undergo one year rigorous imprisonment and also imposed a fine of Rs. 1,000/- upon each accused with default clause. Against the conviction and sentence passed by the trial Court, the first accused has filed Criminal Appeal No. 1107 of 1998 and the second accused has filed Criminal Appeal No. 1108 of 1998.

Before contemplating the rival argument advanced by either counsel, the Court has to analyse as to whether the prosecution has established the guilt of the accused u/s 13(1)(d) of the Prevention of Corruption Act, 1988.

The specific case of the prosecution is that during the relevant period the first accused has served as Sub-Registrar and the second accused has served as Assistant in Sub-Registrar Office, Sivagiri. On 26.04.1993, the complainant viz., Balasubramaniam has applied for getting encumbrance certificate in respect of the lands comprised in Survey Nos.1003, 1004 & 1006, situate in Rayagiri Village and both the accused have demanded Rs. 50/- each from the complainant by way of illegal gratification and on 28.04.1993 the complainant viz., Balasubramaniam met them in their office and the first accused has demanded and received Rs. 50/- from the complainant and the second accused has demanded and received Rs. 30/- from him.

In order to encrust the charge framed against the accused, on the side of the prosecution as many as seven witnesses have been examined and voluminous documentary evidence have been let in. PW1, Ramasamy has spoken about the permission granted by him so as to launch prosecution against the accused.

The complainant by name Balasubramaniam has been examined as PW2. He has categorically stated in his evidence that he is a resident of Mullikulam Village and he is an agriculturist and he has decided to purchase lands which belong to Padmanabha Nadar and in order to ascertain its encumbrance, he has applied for getting encumbrance certificate on 26.04.1993 in the Sub-Registrar Office, Sivagiri and the first accused has demanded Rs. 50/- and the second accused has also demanded Rs. 50/- by way of illegal gratification from him and he has accepted to give the same and further the first accused has directed him to come to Sub-Registrar Office, Sivagiri on 28.04.1993 and on 28.04.1993 he has given the complaint which has been marked as Ex.P5, to PW5, Inspector of Police, Vigilance and Anti-corruption Cell and he has also handed over Rs. 100/- to him and PW5 has observed all formalities and two independent witnesses viz., Aathinarayanan and Sankaranarayan have been introduced to him and PW5 has directed him and the said Aathinarayanan to go to the office of the accused and accordingly both of them have gone there and the first accused has demanded Rs. 50/- and he has given the same and the second accused has received Rs. 30/- from him by way of illegal gratification and subsequently he has shown signal as directed by PW5 and thereafter, he has identified both the accused.

The decoy witness by name Aathinarayanan has been examined as PW3. He has also stated in his evidence that on 28.04.1993 he and Sankaranarayanan have been called for to the office of Vigilance and Anti-corruption and PW2 has been introduced to them and PW5, Inspector of Police, Vigilance and Anti-corruption has observed all formalities and he directed him and PW2 to go to the office of the accused and accordingly they have gone to the office of the accused and PW2 has given Rs. 50/- to the first accused and Rs. 30/- to the second accused and both of them have received the said amounts and thereafter PW2 has given signal to PW5 and, PW5 and others have entered into the office of the accused and, he and PW2 have identified the accused and subsequently PW5 has seized the amounts involved in the crime and he has also conducted phenolphthalein test in the presence of witnesses. PW5 viz., Inspector of Police, Vigilance and Anti- Corruption has also corroborated the evidence given by PWs.2 & 3. One office assistant by name Muthaiya has been examined as PW4. He has also clearly stated in his evidence that the officers of the Vigilance and Anti-corruption have come to the Sub-Registrar Office, Sivagiri.

The application given by PW2 for getting encumbrance certificate on 26.04.1993 has been marked as Ex.P2 and the paper which contains particulars of survey numbers, has been marked as Ex.P3. The receipt given by the Sub- Registrar Office has been marked as Ex.P4 and the complaint given by PW2 to PW5, Inspector of Police, Vigilance and Anti-corruption has been marked as Ex.P5 and all the relevant material objects have been marked as MOs.1 to 13. Therefore, from the evidence of the witnesses mentioned supra, coupled with the documents referred to above, the Court can very well come to a conclusion that the prosecution has clearly established the demand of illegal gratification by the accused from PW2 and also receipt of the same.

The learned Counsel appearing for the appellants/accused has made various feeble attempts so as to supplant the entire case of the prosecution. The first and foremost attack is that PW2 has not established his attempt to purchase the lands mentioned in Ex.P3 and PW2 is a politician and in order to wreck vengeance against the first accused, he has given a false complaint and therefore, the entire case of the prosecution is liable to be rejected, but the trial Court without considering the above factual aspect, has erroneously invited the conviction and sentence against the accused and the same are liable to be set aside.

The learned Government Advocate (criminal side) has also equally contended that in the instant case, both the demand as well as receipt of illegal gratification by the accused have been clearly proved by the prosecution and the prosecution has let in enormous evidence to prove the charge framed against the accused and the trial Court, after pouring all the evidence available on record, has clearly invited the conviction and sentence against the accused and there is no inkling to make interference with the well merited judgment passed by the trial Court and altogether both the appeals deserve dismissal.

As expounded earlier, the specific case of the prosecution is that PW2, complainant has decided to purchase the lands comprised in Survey Nos.1003, 1004 & 1006 which situate in Rayagiri Village and in order to ascertain its encumbrance, he has applied for getting encumbrance certificate in the office of the accused. The above factual aspect has been encrusted by way of filing Exs.P2 to P4. Ex.P2 is a printed form of petition and Ex.P2 bears seal of the Sub-Registrar Office, Sivagiri and further the same contains the date viz., 26.04.1993. Ex.P3 contains the details of Survey numbers. Ex.P4 is a receipt given by the said Office to the complainant on 26.04.1993. Therefore, it is very clear that on 26.04.1993, PW2 has given Ex.P2 for getting encumbrance certificate with regard to survey numbers mentioned supra and only under the said circumstances, Ex.P4 has come into existence.

The learned Counsel appearing for the appellants/accused has advanced his argument only on the basis of the evidence given by PW2. During the course of cross-examination, PW2 has stated in his evidence that he has not purchased the lands in respect of which encumbrance certificate has been sought for. Simply because PW2 has not purchased the lands in question, the Court cannot come to a conclusion that Ex.P2 has been given by PW2 only for the purpose of entangling the accused and further whether PW2 has purchased the lands in question or not, is a different question. The only point that has to be decided now is as to whether PW2 has given a petition in the Sub-Registrar Office, Sivagiri, so as to get encumbrance certificate in respect of the survey numbers mentioned supra. Even at the risk of jarring repetition, the Court would like to point out that the above factual aspect has been clearly proved by the prosecution. Therefore, the first limb of argument advanced by the learned Counsel appearing for the appellants/accused is sans merit and the same can be rejected.

The second limb of argument advanced by the learned Counsel appearing for the appellants/accused is that the accused have not received the alleged illegal gratification from PW2 viz., complainant and the amounts in question have been received by the accused as Flag Day collection and to that effect on the side of the accused trustworthy evidence are available and the trial Court, without considering the evidence adduced on the side of the accused, has erroneously invited the conviction and sentence against them and therefore, the conviction and sentence passed by the trial Court against the accused are liable to be set aside.

Per contra, the learned Government Advocate (criminal side) has also equally contended that in the instant case, the prosecution has adduced replete evidence so as to prove the guilt of the accused, but on the side of the accused, no acceptable and trustworthy evidence have been let in so as to prove the defence taken on their side and the trial Court has rightly rejected the defence taken on the side of the accused as unfounded and therefore, the argument advanced by the learned Counsel appearing for the appellants/accused is liable to be rejected.

The specific defence taken on the side of the accused is that the amounts in question have been received from PW2, complainant as Flag Day collection and in order to establish the above factual aspect, on the side of the accused, DWs.1 & 2 have been examined. DW1 has stated in his evidence that he has joined in District Registrar Office on 15.04.1998 and further he has stated in his evidence that he does not know about the circular issued with regard to Flag Day Collection and Small Savings, and further he has stated that if any amount is received in respect of Flag Day, receipt must be given. DW2 has stated in his evidence that he does not know about the facts which occurred in the year 1993. Therefore, from the evidence of DW1, the Court can easily discern that if an amount is received in respect of Flag Day collection, a receipt must be given. In the instant case, no receipt has been given to PW2 so as to prove that he has given the amounts in question only in respect of Flag Day. Therefore, it is quite clear that the defence taken on the side of the accused is totally false and the same cannot be given effect to.

At this juncture, it would be more useful to look into the decision reported in 1999 Criminal Law Journal 2944 (Periyaswamy v. Inspector, Vigilance and Anti-Corruption, Tiruchirapalli), wherein this Court has categorically held that the accused has not proved that he has received the amount in question as Flag Day Collection and he has not produced any receipt to prove his defence. Under the said circumstances, the conviction and sentence passed against him are proper.

In the instant case, as animadverted to earlier, even though on the side of the accused a defence has been taken to the effect that the amounts in question have been received as Flag Day collection no positive and acceptable evidence have been tendered on the side of the accused and further no receipt has also been produced so as to encrust the same. Therefore, the defence taken by the accused has been invented only for the purpose of eluding from the clutches of law.

It has already been pointed out in many places that the prosecution has clearly established the guilt of the accused. The trial Court after evaluating all the evidence available on record has rightly found the accused guilty u/s 13(1)(d) of the Prevention of Corruption Act, 1988 and in view of the foregoing narration of factual premise, this Court has not found even a flimsy ground to make interference with the well merited judgment passed by the trial Court and altogether the present criminal appeals deserve dismissal.

In fine, these criminal appeals deserve dismissal and accordingly are dismissed and the conviction and sentence passed in Special Case No. 3 of 1994 by the Special cum First Additional District and Sessions cum Chief Judicial Magistrate Court, Tirunelveli, are confirmed. The trial Court is directed to take appropriate steps so as to incarcerate the accused in prison to serve out the remaining period of sentence.