State vs K. Chellaiah

M. Karnagavinayagam, J.—This is an appeal filed by the State through Public Prosecutor, on behalf of the Inspector of police, vigilance and Anti Corruption, Ramanathapuram Dist.against the Order dated 28.4.1988 in C.C. No. 9 of 1986, on the file of the Chief Judicial Magistrate, Ramanathapuram at Sivaganga, acquitting the /accused, in respect of the offences u/s 161 I.P.C., and Section 5(l) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947.

The accused was tried for the above offences, on the allegation that on 6-1-1985 at 8.00 a.m., the accused a Village Administrative Officer, at Maranadu demanded Rs. 150/-, in order to issue certificates in favour of one Karuppan and Ors. to the effect that they were agricultural labourers, to enable them to get Government subsidy loan for purchasing milch animals under I.R.D. programme and in pursuance of the said demand, on 18-1- 1985, between 7.30 a.m. and 8.00 a.m., the accused in his residence at maranadu, received a sum of Rs. 150/- as bribe from P.W.I Karuppan.

The prosecution has examined P.Ws. 1 to 14, filed Exs. P1 to P21 and marked M.Os.1 to 5. On behalf of the defence, D.W.1 was examined.

The short facts leading to the prosecution could be summarised as follows:

P.W.1 Karuppan is the resident of Maranadu village. He along with others arranged to form, a milk society consisting of lady members of the said village. The Government issued subsidy loans for purchasing milch animals under I.R.D. programme to the society. To apply for the subsidy loans, every member of the society has to obtain a certificate from the concerned Village Administrative Officer, to show that the member is an agricultural labourer. The / accused Chellaiah was the Village Administrative Officer of Maranadu during the relevant period.

On 6-1-1985 at about 8.00 a.m., P.W.1 Karuppan along with P.W.2 Singadurai approached the, Village Administrative Officer, who was also a resident of the same village, to issue certificates to all the members of the society, totaling about 54 persons, for which the demanded a sum of Rs. 500/- as bribe. P.Ws.1 and 2 requested the to reduce the bribe amount. Ultimately, die /accused agreed for Rs. 200/-. Thereafter, P.Ws.1 and 2 informed him that they would come back after collection of the amount from the members of the society.

Thereafter, P.W.1 obtained the signatures in the typed forms from all the members of the society. Again on 17-1-1985, in the morning, P. Ws. 1 and 2 met and informed the accused, that they have brought the signed forms. This time, at the request, the /accused agreed to receive a sum of Rs. 150/- instead of Rs. 200/- as bribe. P.W.1 and P.W.2 were instructed to bring the money along with the signed forms, next day morning at 8.00 a.m., Then P.Ws.1 and 2 decided to give a complaint to the vigilance and Anti-corruption police.

On 17-1-1985 at 4.00 p.m., P. Ws.1 and 2 went to Madurai and met P.W.14, Krishnan, the Inspector of Police, Vigilance and Anti-Corruption. P.W.14, received the complaint, Ex.P20 from P.W. 1. The same was registered in Cr. No.1 of 1985. P.W.14, contacted the Deputy Director of Animal Husbandry and requested the officer to depute responsible persons to be witnesses for the trap case. As per such request, from the department of Animal husbandry, P.W.3 Subramaniam and another were sent to the Vigilance office. They went to Vigilance office at 5.30 p.m., where P.Ws.1 and 2 were present and they were introduced to them.

Ex.P20 complaint which was given by P.W.1 to P.W.14 was handed over to P.W.3 and another, to go through the same. P.W.14, the Inspector of Police demonstrated before them how phenolphthalein powder changes the colour in sodium carbonate solution. In their presence he smeared phenolphthalein powder in the currency notes given by P.W.1 one hundred rupee note, two twenty rupee notes and one ten rupee note (M.O.1 series). P.W.14 asked P.W.3 to touch the currency notes smeared with phenolphthalein powder and dip his fingers in sodium carbonate solution and on doing so, the solution turned into pink colour. A mahazar Ex.P.11 was prepared in their presence. In the said mahazar, the numbers of the currency notes were also written. Then, P.W.14 handed over the cash to P.W.1 and asked him to give the same to the /accused on his demand. P.W.1 was instructed by P.W.14, that he must give a signal to light the beedi for indicating that the money was received by the accused.

P.Ws.1 to 3 were asked to come again on the early morning of 18-1-1985. Then, on their arrival these witnesses along with P.W.14 left Madurai and reached Maranadu village at 7.15 a.m., on 18-1-1985. P.W.3 was asked to accompany P Ws.1 and 2 to the house of the accused to watch, as to what happens in the house of the accused. Therefore, all the witnesses P.Ws. 1 to 3 went inside the house of accused. The /accused was found sitting in the front verandah of his house. P.W.3 went and sat in a wooden bench put near the verandah. P. Ws. 1 and 2 informed the /accused that they had come as he instructed. The accused took P. Ws. 1 and 2 to the next room. P.W.3 who was sitting in the verandah was able to see the happenings inside the room. P.W. 1 was having the cash (M.O.1 series) in his hand. P.W.2 was holding the forms, Exs.P9 and P10 series, as soon as the went inside the room, he sat in the mat. P.W.1 gave M.O.I series cash to the accused. P.W.2 handed over the forms. The accused received the amount, counted the same and put inside the register (M.O.5).

Of the 54 forms handed over to the accused/respondent by P.W.2, he put his signature and seal in six forms. They are M.O.9 series. The other unsigned forms numbering about 48 are Ex.P1O series. Then, P.Ws.1 and 2 came out. P.W.1 lighted the beedi, giving the signal as earlier instructed. Immediately thereafter, P.W.14 along with other officers went inside the house of the /accused. At that time, the accused/respondent was found sitting in the mat and in the process of putting signatures in the forms. P.W.14 introduced himself and Ors. to the /accused. P.W.14 asked, whether the /accused received the bribe from P.W.1 to give certificates for the members of the society as agricultural labourers. The accused did not make any answer. The accused was asked to dip his right hand fingers in the sodium carbonate solution, prepared by P.W.14, and while doing so, the same turned into pink colour. The solution (M.O.2) was taken in a bottle and the same was sealed. Again another solution was prepared and the accused was asked to dip his left hand fingers in the solution, which also turned into pink colour, which is M.O.3. Then, the accused was asked to take out the bribe amount. From the register M.O.5 he took out M.O.1 series and handed over the same to P.W.14. The inner sheets in the M.O.5 register were also subjected to test, which also turned into pink colour. This solution is M.O.4. Then, P.W.14, recovered M.O.5 register, Ex.P9 series, the signed forms and Ex.P10 series, the unsigned forms. He prepared Ex.P12 observation mahazar. At about 8.45 a.m., the accused was arrested and subsequently released on bail.

P.W.14 sent these M.O.s., for chemical analysis and obtained the report Ex.P21. he sent requisition for granting sanction and the Revenue Divisional Officer, P.W.13, on perusal of the records granted Ex.P19 sanction. Thereafter, P.W.14 filed the charge sheet before the Court on 28-12-1985.

After the evidence on the side of prosecution was over, the accused was questioned u/s 313 Code of Criminal Procedure, to explain the incriminating circumstances available on record, the accused said, that he was innocent and out of enmity between himself and P.Ws.1 and 2, a false case has been foisted against him and that P.W.I demanded to issue an assignment patta for a porom-boke land, for which the /accused refused and so, he gave the false complaint. He also denied any money having been recovered from him and stated that he was taken by a police constable to the Vigilance office. Infact, his statement before the trial Court u/s 313 Code of Criminal Procedure, is a mere denial.

On the side of the defence, D.W.1 Arunachalam was examined. He stated that there was emity between P.W.1 and the accused/respondent and that there was no milk society in the Maranadu village and P.Ws.1 and 2 did not participate in any capacity in the affairs of the said society.

After termination of trial, the trial Court found the accused not guilty and acquitted him in respect of the charges framed against him, holding that the offences have not been proved by the prosecution beyond doubt. Challenging this Order acquittal, the State has preferred this appeal in this Court.

Mr. S. Manimaran, learned Government Advocate representing the State took me through the Order of the trial Court and the entire evidence available on record and contended that the trial Court has over-looked several vital materials brought on record, which would clearly show that the offences have been proved beyond reasonable doubt against the /accused. He also contended that Section 4(l) of the Act has not been clearly understood by the trial Court, in order to decide about the issue raised in this case. He would also submit, on the strength of the decision of the Supreme Court in Raj Mohan Mazumdar Vs. Ram Krishna Dass and Another, , the trial Court, on the materials available on record, ought to have convicted the accused. In short, learned Government Advocate requests this Court to set aside the order of acquittal and convict the /accused for the offences with which he was charged.

Per contra, Mr. K. Duraisamy, learned Senior Counsel representing Mr. Munirathina Naidu, learned Counsel for the /accused strenuously contended that the reasonings given by the trial Court, for acquitting the /accused are proper and unassailable, and that there are various contradictions in the evidence of P.Ws.3 and 14 and that the evidence of those witnesses are also not reliable. On this basis, learned Counsel for the requests this Court, to confirm the verdict of the learned trial Judge, finding the accused not guilty of the charges framed against him.

Before adverting to the submissions made by the respective parties, let me refer about the grounds on which the Order of acquittal was rendered by the trial Court:

Prosecution examined P. Ws. 1 to 14. of these witnesses P. Ws. 1,2, 4 to 7, 10 to 12, turned hostile. Relating to the receipt of the amount by the /accused and recovery of the same from him, the only evidence available is through P.W.3, an officer working in the department of Animal Husbandry and P.W.14, the investigating officer. Since most of the witnesses turned hostile, the trial Court has taken mainly that aspect, into consideration for acquitting the /accused.

The finding and the reasonings for such finding, as referred to by the trial Court could be summarised as below:

P. Ws. 1,2, 4 to 7, 10 to 12 were treated as hostile witnesses. P.W.1 who gave the F.I.R., reporting about the demand of the bribe and P.W.2 who speaks about the same have not supported the case of the prosecution. P.Ws.4 to 7 and 10 to 12, the hostile witnesses, did not refer about the demand or receipt of the bribe.

In Sita Ram Vs. The State of Rajasthan, the Supreme Court has acquitted the accused; since P.W.1 who gave the complaint in that case turned hostile. The ingredients of the charge u/s 161 I.P.C.are:

(i)that the accused must be a public servant;

(ii)that he must be shown to have obtained from any person any gratification; and

(iii)that the gratification should be other than legal remuneration as motive or reward for doing or forbearing to do any official act for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the person.

When the first two ingredients are proved by evidence then a rebuttable presumption arises in respect of the third ingredient. In the absence of the proof of the first two ingredients, the presumption does not arise. On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of, presumption cannot arise.

In the light of the above points and principles laid down by the Apex Court, the trial Court held that the /accused cannot be convicted, merely on the strength of the evidence of P. Ws.3 and 14, especially when P.W.1, the complainant turned hostile, and that the prosecution has not proved the first two ingredients of Section 161 I.P.C., and as such, the trial Court acquitted the /accused.

On going through the judgment of the Sita Ram in Re. render by the Supreme Court, I am of the view, that the trial Court has misread itself, without understanding the facts of that case. In that case, a complaint was lodged by the complainant against the accused, a Secretary of the Gram Sewa Sahakari Samiti, Dadia, who alleged to have demanded bribe for handing over the charge to him, the complainant. Then, after the formalities were over, the complainant Mohan Lai, was sent along with one Sugansingh (P.W.9) an independent witness to the office in which the accused was working. Thereafter, in the office, the complainant gave the currency notes to the accused. Then the raid followed and the currency notes were recovered from him, which resulted in the prosecution. In that case the complainant turned hostile. The independent witness, P.W.9 Sugansingh, who went along with the complainant, Mohanlal, stated in his cross- examination that when Mohan Lai gave currency notes to the accused, he did not see that. So, virtually, there was no evidence whatsoever, to show that amount was received by the accused from the complainant.

But the instant case stands entirely on different footing. P.W.1, the complainant, of course did not say about the handing over of the money, while deposing before the trial Court, for the best reasons known to him, and that was why he was treated as hostile. However, P.W.3, who is an independent witness working as an officer in the Animal Husbandry Dept. and who has no axes to grind against the accused, has stated in his evidence, that he saw the entire happenings inside the house of the accused, while P.W.1 handed over the bribe amount to the respondent/accused. As such, the decision referred above, is not at all applicable to this case.

Moreover, in this case, it has been proved by the evidence of P.Ws.3,4,5 and 14, that the /accused was working as a public servant. The himself has admitted in his statement u/s 313 Code of Criminal Procedure, that he was working as Village Administrative officer, during the relevant period. Therefore, the first ingredient of Section 161 I.P.C, has been proved. The second ingredient, viz. Whether the accused person has obtained any money as gratification. For this, the evidence of P.W.3 is available, who gave an elaborate account of the happenings took place in the house of the accused and the fact of the accused having received the bribe amount from P.W.1. So, when -these two ingredients have been proved, then automatically, as laid down by the Supreme Court in the above referred decision, that presumption arises, that the gratification was received by the accused/respondent as a reward other than the legal remuneration for doing an official act or showing favour in exercise of his official functions. This is a case, where, according to the prosecution, the amount was received for putting his signatures in the forms certifying that the members of the society are agricultural labourers, to enable them to get the subsidy amounts.

The evidence of P. Ws.3 and 14 would clinchingly prove the recovery of M.O.1 series currency notes from the accused, who took out the same from M.O.5 register and handed over the same to P.W.14, Inspector of police.

When these materials proved the case of the case of prosecution, then it is for the /accused to prove by preponderance of probability that the amount was received not as illegal gratification. Of course mere recovery of certain amount from the person of the accused, without the proof of its payment, will not be sufficient to raise a presumption u/s 4(l) of the prevention of Corruption Act. As already referred to, the prosecution has let in evidence through P.W.3, to show that the amount was received by the accused from P.W.I, inside the room of his house, when P.W.3 was sitting in the verandah of the said house, from where one could see the happenings inside the room. As such, I see, the trial Court has miserably failed to appreciate the evidence in the proper perspective and acquitted the accused, without going through the settled law on the subject.

Learned Government Advocate, has brought to my notice, a decision in Hazari Lal Vs. State (Delhi Administration), , in which the Supreme Court has held that the evidence of the police officer, who laid the trap, which is found reliable would alone be sufficient to base the conviction under Sections 5 (1) (d) and (2) of the prevention of Corruption Act. The Supreme Court has further held:

Where the evidence of the police Officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a/particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the fact and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.

The conclusion arrived at by the Supreme Court in that decision was that

Once we arrive at the finding that the accused had obtained the money from P.W.3, the presumption under S 4(1) of the prevention of Corruption Act is immediately attracted The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the Courts below.

In the said decision also, all the witness turned hostile, except the police officer, who recovered the money from the accused at the police station. Therefore, I feel, the above observations would squarely apply to the instant case. In the present case, we have not only the evidence of police officer, who laid the trap and recovered the money from the accused/, but also the evidence of independent witness P.W.3, whose evidence is found to be entirely trustworthy. As such, both the facts of receipt of money by the accused and recovery of the same from him, have been spoken to by P.Ws.3 and 14, and therefore, I see no reason to reject their testimony. A reading of the deposition of these two witnesses (P. Ws.3 and 14) would make it clear that their evidence is clear, cogent and truthful.

On the basis of this, I have no hesitation to hold that the trial Court has done a serious illegality, which has to be set right in this appeal. It is also significant to note, that there is no discussion about the reliability of the evidence of P.Ws.3 and 14 in the judgment of the trial Court. The Court below in last two paragraphs of its Judgment, hurriedly passed an order acquitting the /accused, by referring some portions of the judgment of Sita Ram In Re. rendered by the Supreme Court, without considering the available and substantive evidence, which has proved the case of the prosecution.

Let me now discuss and appreciate the evidence of the witnesses in this case. Of course, the evidence of P.Ws.1 and 2 are of no use to the Prosecution. But the evidence of P.Ws.4 to 6 and 10 to 12, though they were treated as hostile, supports the case of the prosecution to some extent. The case of the prosecution is that P.Ws.1 and 2 approached the /accused for issuing certificates to the effect that they are agricultural labourers. The defence case as put forward by D.W.1 and through suggestion put to the prosecution witnesses is that there was no such society and no attempt was made by P. Ws.1 and 2 to get subsidy loans from the Government under I.R.D. programme. But, P.W.4, the wife of P.W.I has categorically stated that they have put signatures in the typed forms, in order to obtain loan, as members of the society.

D.W.1 Arunachalam, has merely stated that there was no such society in Maranadu village and P.W.1 had never been engaged in the affairs of the milk society. He also speaks to some enmity between P.W.I and the accused. But, this aspect has been disproved by P.W.4, who is none other than the wife of P.W.I. The evidence of P.W.4 has been corroborated by P. Ws.5 and 6, in regard to their signatures put in Exs. P9 and P10 series, which have been recovered from the custody of the accused.

P.W.8 Chandramohan, an Assistant in Thiruppuvanam Panchayat Union Office, deposed that the loans were being sanctioned to the members of the society, provided they should apply for the same along with the certificates issued by the concerned Village Administrative Officer with appropriate seal, to the effect that they are agricultural labourers. He also deposed that the certificates of Village Administrative Officers and the recommendations will be considered by the superior officers. This aspect of evidence is also being spoken to by P.W. 9, Tahsildar. That apart, the accused himself admits this aspect in his statement u/s 313 Code of Criminal Procedure So, the demand of bribe by the accused for issuing the certificates and the receipt of the same have been amply proved by the substantive evidence as well as by the circumstantial evidence as referred to above.

Moreover, there is no contradiction between the evidence of P.Ws.3 and 14, in material particulars. In fact, I find more corroboration in their evidence. In Ex.P8 mahazar, the details of the currency notes, viz. the numbers and amount, and the instruction regarding the signal, name of P.W.3 who was instructed to go to the house of the accused along with P.Ws.1 and 2, were all mentioned. Ex.P8 mahazar was attested by P.W.3 and another. Ex.P11, the second mahazar prepared after recovery of the amount and other M.Os., also would give details inconsonance of the deposition of P.W.3. Ex.P12 is the observation mahazar, which also fits with the evidence of P.W. 14. As already referred to, there is no necessity for P. Ws.3 and 14 to speak falsehood against the accused/respondent.

Mr. K. Doraisamy, learned Senior counsel appearing for the contended that P.W.3 in his cross-examination was not able to give the details of the topography of the house and that the Inspector as soon as entered into the house of the accused caught hold hands of the accused and so, the phenopthalene test cannot be, said to be valid one and that there was also some contradictions in the evidence between P. Ws. 3 and 14.

Mr. S. Manimaran, learned Government Advocate strenuously and effectively con-tended that though P.W.3 did not give full details of the house of the accused, he has given some particulars which corroborates the materials found in the second mahazar Ex.P11 and that the evidence of P.W. 14 also would be in consonance with the said mahazar. Of course, P.W.3 would say that Tamil word.

This aspect shows that the evidence of P.W.3 is highly natural, because when a person goes to a new place, one cannot expect to remember about or identify about the sides whether it is east or west, north or south.

It is also pointed out by the counsel for that during the course of examination, P.w. 14 said that he recovered 2 hundred rupee notes, whereas recovery was only one hundred rupee note. This is obviously a mistake, because both the evidence of P.W.3 and the mahazars show that only one hundred rupee note was given. So only by mistake, P.W. 14 has referred as two hundred rupee notes. This, in my view, cannot in any way affect the case of the prosecution.

However, as referred to earlier, once when the prosecution has proved the receipt of gratification, other than the legal remuneration by the accused, it is for the accused to establish by a preponderance of probability, that he has not received the money as gratification, other than the legal remuneration. But, not even an attempt was made by the accused to establish that it was the legal remuneration due to him. As stated earlier, there are ample circumstances which established the guilt of the /accused.

On the foregoing analysis, I am of the view that the trial court, without considering these aspects has acquitted the accused, on the reasonings, which are. not supported by any valid ground and as such, the Order of acquittal passed by the trial Court is liable to be set aside. Of course the Apex Court on several occasions held that there are two views possible, while dealing with the appeal against acquittal. One view in favour of the accused must be preferred. But, in this case, I feel, only one view is possible, which is that the prosecution has established its case beyond reasonable doubt.

In The State of Madras Vs. A. Vaidyanatha Iyer, ), the Supreme Court, in an appeal against acquittal, set aside the Order of acquittal passed by the High Court and made the following observations:

On the facts of the case, that the judgment of acquittal passed by the High Court should be set aside as certain salient features of the case were not properly appreciated or given due weight to by the High Court and its approach to the question whether the sum of Rs. 800/- was an illegal gratification or a loan was such that the High Court had ''acted perversely or otherwise improperly''. The High Court also seemed to have disregarded the special rule of burden of proof u/s 4, Prevention of Corruption Act and therefore its approach in this case had been on erroneous lines."

This observation is squarely applicable to the present case, as in this case also, the trial Court has not considered the salient features of the case available through the evidence of P. Ws. 3 and 14. Moreover, the trial Court disregarded the special rule of burden of proof u/s 4 of the Prevention of Corruption Act.

In Rup Singh Vs. The State of Punjab, the Supreme Court has ob-served that when there was a defence, then evidence must be adduced to prove the same and the failure of accused to explain presence of phenolphthalein powder on his hand and the availability of evidence of prosecution witnesses are sufficient to prove the offence against the accused. The Court has further held as follows:

His defence that he was a victim of conspiracy because he had refused to change the valuation of the land on the demise of P.W.5''s father is, to say the least, preposterous. Except his oral statement there is nothing on record to support the contention. He has not explained the presence of phenolphthalein powder on his hand and the finding of currency notes from the adjoining house where according to the prosecution witnesses he had thrown the notes.

So, in the light of the above principles, I am of the considered opinion, that the /accused is liable to be convicted for the offences, with which he was charged, on the basis of the materials brought on record, as discussed earlier.

In that view of the matter, the respond-dent/accused is found guilty for the offences u/s 161 I.P.C., and Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. Accord-kingly the appeal is allowed and the judgment of the Chief Judicial Magistrate, Ramanathapuram at Sivaganga, in C.C. No. 9 of 1986, dated 28.4.1988, acquitting the /accused is set aside.

Learned Counsel for the was questioned about the sentence to be imposed upon the /accused. Mr. s. Muthukumar, representing Mr. Doraisamy, Senior Counsel, submits that the /accused will lose his job. if conviction is imposed upon him and that he alone has to look after his family and so he requests this Court to consider the imposition of sentence sympathetically.

41.In view of the above circumstances, I deem it fit to impose a minimum sentence of R.I. for one year and to pay a fine of Rs. 500/- in default to undergo S.I. for 3 months, for the offence u/s 5 (1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and no separate sentence is necessary for the offence u/s 161 Indian Penal Code.

At this stage, Mr. S. Muthukumar, learned Counsel represents that the /accused is entitled to the benefit of remission, for a total period of one year as per two Government Orders, viz. (1) GO. Ms. No. 180 Home prisons.IV) Dept. dated 28.1.1989 and (2) G.O. Ms. No. 781, Home (PR.C) Dept. dated 11.4.1990. Mr. S. Manimaran, learned Government Advocate does not dispute the same. Since the /accused is entitled to the benefit of remission for a period of one year, subject to payment of above said fine, the need not surrender before the prison authorities. The /accused is directed to pay the above said fine of Rs. 500/- within a period of one month from the date of this order.