State vs G.P. Anilkumar

S. Nagamuthu, J—This is an appeal against acquittal, filed by the State. The respondent is the sole accused in Special Case No. 5 of 2005, on the file of the learned Chief Judicial Magistrate cum Special Court under the Prevention of Corruption Act, Kanyakumari District at Nagercoil. He stood charged for offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The trial Court, by Judgment, dated 25.04.2008, acquitted the respondent. Challenging the same, the State is before this Court, with this appeal.

The case of the prosecution in brief is as follows:

Between 13.06.2003 and 15.10.2004, the respondent (hereinafter referred to as accused) was working as an Assistant in the office of the Revenue Divisional Officer, Padmanabhapuram in Kanyakumari District. P.W. 9, Mr. Chiristopher owned the lorry bearing Registration No. TN-74-A-6732. P.W. 2 was the driver of the said vehicle. The said vehicle was seized by the police (P.W. 10) on 24.09.2004 on the allegation that the said vehicle was used for illegally transporting sand. The vehicle was handed over to the custody of the Revenue Divisional Officer. P.W. 9 filed a petition before this Court for the return of the said vehicle. This Court, accordingly, ordered the release of the vehicle on P.W. 9 depositing Rs. 5,000/-. On 11.10.2004, P.W. 2 went to the office of the Revenue Divisional Officer, Padmanabhapuram, met the accused, who was in-charge of the said case and produced all the records including the order of this Court for the release of the vehicle. After having gone through the said records and also the records of his office, the accused told P.W. 2 that apart from Rs. 5,000/-, he has to pay a sum of Rs. 8,000/-, which was due on account of the involvement of the vehicle on an earlier occasion. But, P.W. 2, did not have Rs. 13,000/-. He told the accused that he would come on the next day. Accordingly, he went to the office on the next day. But, the accused told him that the papers were not prepared still and he wanted him to come on 15.10.2004. Accordingly, at 10.00 am on 15.10.2004, P.W. 2 went to the office of the accused and met him. The accused told him that he should deposit Rs. 13,000/- in the State Bank of India, Thuckalay Branch. For the said purpose, immediately, P.W. 2 spoke to P.W. 9 over phone and informed about the same. By about 12.00 noon, P.W. 9 came to the office of the accused and gave Rs. 14,000/- to P.W. 2 to enable him to pay the amount to the bank. With the said amount in his bag, P.W. 2 again went into office of the accused and met him. The accused, with the help of an Office Assistant in his office, prepared three challans each for Rs. 5,000/- and handed over the same to P.W. 2 and wanted him to pay the amount to the bank. At that time, it was noticed that the total amount to be paid was Rs. 13,500/- and challan was prepared accordingly. Having received the said challans numbering three, P.W. 2 went to the State Bank of India, Thuckalay Branch and paid the amount.

Shortly thereafter, P.W. 2 returned to the office of the accused. At that time, the accused asked him whether he had money. P.W. 2 told him that he had money and came out of the office. When the accused asked him about the money, P.W. 2 felt that it was towards bribe. Therefore, he spoke to P.W. 9 over phone and informed the same.

On the instruction of P.W. 9, P.W. 2 went to the Vigilance and Anti-corruption Police Station. P.W. 14 was the then Inspector of Police, attached to the Vigilance and Anti-corruption Police Station. On 15.10.2004, at about 03.45 p.m., he received the complaint from P.W. 2 and registered a case in Crime No. 7 of 2004 under Section 7 of the Prevention of Corruption Act. Ex. P. 28 is the First Information Report. Then he decided to arrange for a trap. For that purpose, on due intimation, P.W. 3 and another witness appeared. P.W. 3 is a Junior Assistant working in Health Department. P.W. 14 conducted demonstration of phenolphthalein test and explained the same to P.W. 2 and the witnesses. Then P.W. 14 collected a 500 rupee currency note and five numbers of 100 rupee currency notes from P.W. 2 and with the help of a policeman, stained the same with phenolphthalein powder and handed over the same to P.W. 2. For that, he prepared a mahazer. Then, P.W. 14 took P.Ws. 2 and 3 along with few other officials to the office of the accused. On leaving P.Ws. 2 and 3 in front of the office of the accused, P.W. 14 instructed him to hand over the above said Rs. 1,500/- to the accused, if demanded and then to come out and make a signal.

Accordingly, P.Ws. 2 and 3 went into the office of the accused at 06.15 p.m. When they entered into the office, the accused was in his seat. P.W. 2 enquired him about the release order of the vehicle. Further, according to the case of the prosecution, at that time, the accused demanded Rs. 1,000/- as illegal gratification. P.W. 2 took out the tainted currency notes from his pocket and gave the same to the accused. The accused received the said currency notes with his right hand, changed the same to his left hand and put it safely in his left side pant pocket. P.Ws. 2 and 3 then came out of the office and at the end, P.W. 2 made a signal. On receiving the signal, P.W. 14 and the other witnesses along with the police officials rushed towards them. P.W. 2 explained to him as to what had happened inside the office. Then the accused was identified by P.W. 2. On seeing the police, the accused became perturbed and he was restless. Then, P.W. 14 with the help of a constable prepared Sodium Carbonate solution in a glass tumbler and wanted the accused to dip his right hand fingers into the same. The solution changed into pink colour thereby indicating the presence of phenolphthalein powder on his fingers. Then, he prepared yet another Sodium Carbonate solution in a glass tumbler and wanted the accused to dip his left hand fingers. That also proved positive. Then, the left side pant of the accused was recovered and left side pocket of the said pant was subjected to Sodium Carbonate examination. That also proved positive. Then the accused was arrested. The Sodium Carbonate solutions were taken in bottles and sealed safely in the presence of the witnesses. The file relating to the release of the vehicle was also recovered. The accused was thereafter brought to the Police Station by P.W. 14 and then he was forwarded to the Court for judicial remand. Thereafter, P.W. 14 handed over the investigation to P.W. 15. P.W. 15 examined P.Ws. 1 and 2, and few more witnesses and recorded their statements. He gave request to the Court for forwarding the Sodium Carbonate solutions for chemical examinations. Accordingly, they were sent. The Chemical Analyst was examined as P.W. 11, who has given the opinion that the solution contained phenolphthalein powder. On completing the investigation, P.W. 15 laid the charge sheet.

Based on the above materials, the Trial Court framed charges as stated in the first paragraph of the Judgment. When the accused was questioned in respect of the charges, he denied the same.

In order to prove the case, on the side of the prosecution, as many as fifteen witnesses were examined, thirty documents were exhibited and sixteen material objects were marked.

Out of the said witnesses, P.W. 1 has spoken about the earliest demand for bribe made on 15.10.2004 and his giving complaint as well as trap proceedings. P.W. 3 has also spoken about the same. P.W. 4 is the Shristadar in the office of the accused, who has spoken about the file relating to the release of the vehicle. P.W. 5 is the Tahsildar, who has spoken about the seizure of the vehicle and the fact that it was entrusted to his custody. P.W. 7 has spoken about the preparation of the order for release of the vehicle to be signed by the P.A. to the Revenue Divisional Officer. P.W. 8 is an Office Assistant, who has said that some four or five people rushed into the office, whom later he came to know, were Vigilance officials. He has further stated about the alternative arrangement made by him to give lungi to the accused to enable the police to recover the pant. P.W. 9, the owner of the vehicle, has turned hostile and he has not supported the case of the prosecution. P.W. 10 is the Sub Inspector of Police, who recovered the vehicle, on 24.09.2004. P.W. 10 has spoken about the General Diary and other documents maintained in the police station. P.W. 11 is the Scientific Expert, who had analysed the Sodium Carbonate solutions. He has given opinion that the solutions contained phenolphthalein powder. P.W. 12 is the yet another Office Assistant, who handed over the challans to P.W. 2 to enable him to pay Rs. 13,500/- in the State Bank of India, Thuckalay Branch. P.W. 13 is the Head Clerk of the Court, who forwarded the material objects to the Forensic Lab for examination. P.W. 14 has spoken about the registration of the case and the trap proceedings. P.W. 15 has spoken about the investigation.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he defend the allegations against him and he took the plea that when P.W. 2 approached him for the release of the vehicle by paying Rs. 5,000/- after verifying the earlier records, he found that a sum of Rs. 20,000/- was already due in connection with earlier proceedings and he told P.W. 2 to pay the same also. But, P.W. 2 wanted him not to insist for payment of the earlier amount. But, he did not agree for the same. Having enraged over the same, this false complaint has been made, he has stated. He would further state that at the crucial time, he went to the bath room and after changed his dress and hanged the pant in a corner of the office. He did not receive any amount from P.W. 2 and he did not keep the same in his pant pocket. But, subsequently after arrival of P.W. 14 and other officials he took out the pant and found the currency notes. They wanted him to take the currency notes from the pocket and count. That is how, his fingers became stained with phenolphthalein powder. He pleaded innocence.

Having considered all the above materials, the Trial Court had acquitted the accused. Against the order of acquittal, the State has come up with this appeal.

I have heard the learned Additional Public Prosecutor appearing for the State and Mr. V. Kathirvelu, learned Senior Counsel appearing for the respondent and I have also perused the records carefully.

The Trial Court has acquitted the accused on a number of grounds and by giving benefit of doubt arising out of the evidences let in by the prosecution. The first and foremost ground upon which the Trial Court has made much reliance is the conduct of P.W. 2. According to his evidence, even in chief examination, that on 11.10.2004, when he went to the office, met the accused and produced documents for the release of the vehicle, the accused did not make any demand for any illegal gratification. When he went to the office on the next day also, the accused did not make any demand. But the accused after verifying the records found that not only Rs. 5,000/- for the vehicle, Rs. 20,000/- more was to be paid. Even at that time, the accused did not make any demand for illegal gratification. At that time, the accused told him that papers were not made ready and therefore he requested him to come on the next day assuring him that he would keep the papers ready at that time. On 15.10.2004 at 10.00 a.m., when P.W. 2 met the accused at his office, there is no allegation that he demanded any amount of illegal gratification. He told P.W. 2 that he should pay Rs. 13,000/- towards the legal dues. But, P.W. 2 did not have that amount. He went out of the office. He spoke to P.W. 9 and wanted the said amount. Thereafter, P.W. 9 came and met P.W. 2 and gave Rs. 14,000/-. With that Rs. 14,000/-, P.W. 2 again met the accused and informed him that he was now ready with the money to be paid to the bank. Even at that time, the accused did not make any demand. He asked P.W. 12 (Narayanan) to prepare the challan and then the accused handed over the same to P.W. 2. The challan was prepared for a total sum of Rs. 13,000/-. Even at that time, that is, while handing over the challan to P.W. 2, the accused wanted him to go to Thuckalay Branch of State Bank of India and to pay the same. P.W. 2 went to the bank. After paying the amount, he returned to the office of the accused and handed over the challans indicating that the amount had been paid to the bank. It is stated that, at this stage, the accused asked him as to whether he had money (vide evidence of P.W. 2). P.W. 2 told him that he had money and at once, he came out of the office. Thereafter, he has added in his evidence, the accused asked for Rs. 1,000/-, which he presumed to be towards illegal gratification. Then, he spoke to P.W. 9 and on his instruction, he gave the complaint.

The learned Additional Public Prosecutor would submit that there is no delay on the part of P.W. 2 in going to the Police Station and the sequence of events narrated by him would only go to show his natural conduct. But in my considered opinion, it is not so. As rightly held by the Trial Court, had it been the intention of the accused to demand illegal gratification from P.W. 2, on the first occasion, that was, on 11.10.2004 itself, he would have made such a demand. Subsequently, on three different days, when P.W. 2 met the accused, he did not demand any amount towards illegal gratification, instead, he did his job in a routine fashion like preparing the papers, preparing the challans, handing over the same to P.W. 2, preparing the order and keeping the same ready for the signature of the P.A. to the Revenue Divisional Officer. All these were done by him in discharge of the official duty and there was no demand at all for any illegal gratification. When that be so, as rightly held by the Trial Court, it is doubtful that the accused would have demanded suddenly Rs. 1,000/- on 15.10.2004. This is highly unbelievable. Apart from that, in order to prove this demand, the prosecution relies only on the evidence of P.W. 2. P.W. 2''s evidence suffers from the above improbabilities. Above all, as stated by the learned Senior Counsel appearing for the accused, irked over the demand made by the accused for clearing of the entire arrears towards the fine amount, he would have contacted P.W. 9 and on his instructions, this complaint would have been made. Quite surprisingly, P.W. 2, during cross-examination, has positively admitted that his master had used him as a weapon to make this complaint, because P.W. 9 believed that the release of the vehicle was withheld only by the accused. From these facts and circumstances, the Trial Court has doubted the veracity of P.W. 2, in which, I do not find any infirmity warranting interference. More so, when there is no corroboration for the evidence of P.W. 2, it is highly unsafe to make reliance on the evidence of P.W. 2 alone.

Now, turning to the trap proceedings, the trial Court has pointed out number of contradictions and improbabilities in the case of the prosecution. P.W. 2 has not stated that during trap proceedings, the accused demanded money at all. His evidence goes to show that during trap proceedings as soon as they entered into the office, he asked the accused as to what had happened to order for the release of the vehicle. Immediately, the accused told him that the order was ready for the signature of the P.A. to the Revenue Divisional Officer and as soon as the P.A. came, the order would be signed and the same would be handed over to him. Even at that time, according to P.W. 1, the accused did not make any demand at all for gratification. It is his evidence that he voluntarily gave Rs. 1,000/- to him, which he received. This evidence of P.W. 2 is quite contrary to the evidence of P.W. 3. According to P.W. 3, as soon as, they entered into the office of the accused and on seeing P.W. 2, the accused asked him as to whether he had brought money as demanded earlier. In response to the same, P.W. 2 nodded his head positively and took out the money from his pocket and handed over the same to the accused. This contradiction, in my considered opinion, is material which creates some doubt in the mind of the Court. The Trial Court has rightly given much weightage to this contradiction on this crucial aspect. In this regard, we may refer to the stand taken by the accused. According to him, in the evening, he had left the pant in a corner of the office and went to the bath room. When he returned, the vigilance officials were there and they wanted to search for something in the pant pocket and he found the currency notes. At this juncture, I may point out an important aspect of the matter. Fair investigation is part of fair trial, which is implicit in Article 21 of the Constitution of India. Any explanation offered by an accused at the earliest point of time would carry weightage as any explanation made for the first time during the trial, is likely to be discarded as an afterthought. Therefore, to be fair on the part of the Investigating Officer, he should afford an opportunity to the accused to explain as to how he came to possess the currency notes. But, in this case quite interestingly, a perusal of the evidence of P.W. 14 would go to show that he did not offer any such opportunity at all, to the accused during trap proceedings, to offer any explanation about his possessing money. It is the evidence of P.Ws. 3 and 14 that the accused was not given any opportunity to make any explanation regarding the money. The accused was simply arrested, phenolphthalein test was conducted and brought back to the police station. Thus, in my considered view, the investigation on this respect, was not fair. Therefore, the explanation offered by the accused for the first time in Court cannot be discarded as an afterthought. If this explanation is accepted as a probable happening, then the entire case is liable to be disbelieved, not only on this aspect and on the other grounds, which I have dealt with above.

Apart from that so far as the preparation of the file for the return of the vehicle is concerned, as I have already pointed out, the accused has done his job in full without any delay. Had it been his intention to detain that file demanding illegal gratification, such demand would have been made on the first occasion, namely, on 11.10.2004. All these aspects have been rightly considered by the Trial Court to come to the conclusion that the prosecution has not proved the case beyond reasonable doubt.

It is the settled law that the accused is entitled for presumption of innocence, which is one of the fundamental principles of the Criminal Jurisprudence of this country. Such presumption of innocence, is strengthened, as a matter of fact, doubled in the words of the Hon''ble Supreme Court when the trial Court has recorded acquittal. The said presumption of innocence is therefore to be rebutted by the prosecution in the appeal by making out a very strong case. In this case, as I have already pointed out, the grounds upon which the accused was acquitted could not be assailed and the prosecution has failed to rebut the presumption of innocence in favour of the accused. It is also the settled law that if there are two views equally possible, the Appellate Court cannot substitute its view against the accused in the place of the view, which was taken by the trial Court in favour of the accused. But, in this case, I am not in a position to take a different view than that of the view taken by the trial Court.

Having regard to all the above facts and circumstances and by having a clear analysis of the entire materials, I hold that the trial Court was right in acquitting the accused and there are no grounds to interfere with the same.

In the result, the Criminal Appeal fails and the same is accordingly dismissed.