State: Deputy Superintendent Vigilance and Anti-Corruption Special Wing, Krishnagiri vs K. Sundararajan, Sub-Registrar and A. Eswaran, Assistant

T. Mathivanan, J.—Challenging the Order of acquittal dated 09.10.1998,and made in Special Case No. 2 of 1994, on the file of the learned Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Special Court, Cuddalore, the Deputy Superintendent of Police, Vigilance and Anti-Corruption has preferred this appeal after invoking the proviso to Section 378 of the Code of Criminal Procedure.

The facts, which necessary for the disposal of this appeal are as under:

2.1. The first respondent, who is the first accused in the case was working as Sub-Registrar Grade-II at Mangalampettai Sub-Registrar''s Office from 09.03.1989 till10.04.1991. The second respondent/second accused was working as Assistant in the same office from 06.08.1990till 10.04.1991.

2.2. P.W.3 and P.W.4 are brothers. Their father is one Govindasami Konar. They are the residents of Chinna Selam in Kallakurichi Taluk. They have effected a partition in respect of their joint family property measuring 7 Acres 32 Cents in the presence of village panchayat.

2.3. That on 26.03.1991 at about 04.00 p.m. in order to register the said partition, both of them had approached one Mr.Annamalai, who is a document writer in Mangalampet Sub-Registrar''s Office. Whileso, they were instructed by the said Annamalai to bring the details about the value of the property from the Sub-Registrar. Accordingly, both of them had met the first respondent K.Sundararajan in his office. When he was enquired about the cost of the stamp papers for executing the partition deed, he had replied that it would not fetch much. But, he asked them to pay asum of Rs. 500/-separately for him. When they requested to reduce the amount as they were not able to offer that much of amount, the first respondent had asked them to bringRs. 300/-for registration of the document. This was informed to the document writer Annamalai (not examined).He had also told them that he would prepare the document on the stamp papers.

2.4. That on 03.04.1991, P.W.3 had met the scribe Annamalai. He had informed that he had written the document on the stamp papers and entrusted with the first respondent for verification and asked P.W.3 to come on05.04.1991. In order to ascertain the fact, P.W.3 had met the first respondent in his office. Whileso, he had told that he would verify the document and hand over on the next day and therefore he asked P.W.3 to come on 05.04.1991 with a sum of Rs. 300/-.

2.5. But, P.W.3 was not willing to pay the bribe and hence, he had been to the Vigilance and Anti-Corruption Office located at Cuddalore at 05.00 p.m. on 04.04.1991 and lodged a complaint under Ex.P4 before P.W.9 the Deputy Superintendent of Police, attached to the Vigilance and Anti-Corruption Department, Cuddalore. On receipt ofEx.P4, P.W.9 had registered a case in Crime No. 2 of 1991under Section 7 of the Prevention of Corruption Act, 1988.The printed F.I.R. was marked as Ex.P5.

2.6. After registration of the case, P.W.9 had asked P.W.3 to come on 05.04.1991 at about 05.30 a.m. Then, he had decided to organiseg a trap and therefore he had sent a memorandum to the Joint Director of Agriculture and Junior Executive Engineer, Soil Conservation Department, requesting to send witnesses at 05.30 a.m. on 05.04.1991 to organiseg a trap team. Then P.W.9 had examined P.W.3 and recorded his statement.

2.7. Accordingly, P.W.5 Mohammed Rafudeen, Junior Assistant from Cuddalore Joint Director (Sales) Office and one Venkatachalam had reported P.W.9 at 05.30 a.m. on05.04.1991 along with P.W.3. After following the preliminary formalities, P.W.3 had produced six numbers of hundred rupee currency notes before P.W.9. These currency notes were smeared with phenolphthalein powder and sodium carbonate test was demonstrated to explain the intrinsic value of the phenolphthalein and Sodium Carbonate test. Thereafter, the numbers of the tainted currency notes were noted separately and the same was entrusted with P.W.3 with an instruction to give the amount to the sub-registrar of the Mangalampet Sub-Registrar''s Office when the amount is demanded.

2.8. P.W.5 was also instructed to accompany P.W.3 and both of them were instructed to show the pre-arranged signal no sooner than the amount is received by the first respondent. Then P.W.9 had prepared an entrustment mahazar under Ex.P6 and all the witnesses had signed in it. The sodium carbonate solution was preserved in a bottle, labeled and signed by the witnesses and the bottle was marked as M.O.6. The tainted currency notes had been marked as M.O.1 series.

2.9. Thereafter, the trap team had left from the Office of the Vigilance and Anti-Corruption at 06.45 p.m. and reached Mangalampet Sub-Registrar''s Office at 09.30 a.m. After reaching Mangalampet, the vehicle was stopped at the distance of one kilometer near a tank located at Mangalampet - Pillur Junction point and P.W.9 had instructed P.W.3 and P.W.5 to go to Sub-Registrar''s Office and meet the first respondent and give the tainted amount when the demand is made by him.

2.10. P.W.3 and P.W.5 had reached Sub-Registrar''s Office at 10.15 a.m. Whileso, P.W.4, who is none other than the brother of P.W.3, their father and the document witnesses one Jesu and Murugan were present there. P.W.3had approached the scribe Annamalai and enquired him as to whether the document was ready. For that, he had informed him that after verification, the document was already handed over to first respondent. But, the first respondent was not present in his office as he had been to District Registrar''s Office at Kallakurichi and since he would go to Krishnagiri from there, P.W.3 was asked to come on Mondayie. on 08.04.1991 and assured him that the document would be registered on that day. Then P.W.3 and P.W.5 came back to P.W.9 Deputy Superintendent of Police and informed about the non-presence of the first respondent.

2.11. Besides this, P.W.3 had also informed P.W.9 that originally the name of the first respondent was given in the complaint as ''Subramanian''. But, his actual name is ''Sundararajan'' and therefore a mahazar in this connection was prepared by P.W.9 and his signature was also obtained. That mahazar was marked as Ex.P7. Thereafter, P.W.9 had instructed P.W.3 and other witnesses to come on 08.04.1991at about 07.00 a.m.

2.12. That on 08.04.1991, at about 07.00 a.m. P.W.3had come to the Office of P.W.9 along with the tainted currency notes viz. Six numbers of hundred rupee currency notes. The witnesses P.W.5 and P.W.6 had also arrived there. Again, the currency notes were smeared with the phenolphthalein powder and another entrustment mahazar was prepared at about 08.00 a.m.

2.13. Thereafter, they had left to Mangalampet Sub-Registrar''s Office and reached there at 10.30 a.m. Their car was stopped at the distance of one kilometer at Vridhachalam - Mangalampet road and P.W.9 along with P.W.6and other trap team members took their position in a hiddenplace, from where they could see the Sub-Registrar''s office. Whileso, the documents were readily kept by the document writer and P.W.3, his father and his brother P.W.4had signed in the original partition deed. The partition deed was marked as Ex.P9. Ex.P10 is the copy of Ex.P9.The draft of Ex.P9 was marked as Ex.P11. After receivingEx.P9 and Ex.P10, P.W.3 and P.W.5 went to the office of the first respondent.

2.14. P.W.7 is the father of P.W.8. P.W.7 had purchased 68 Cents of land from one Kamala, wife of Jayaraman belonging to their native place. The sale deed to that effect was written by one scribe Ramamoorthi. The total value of the stamp papers for the said sale deed wasRs. 2,040/-. P.W.7 had purchased only two stamp papers of thousand rupee denomination and one stamp paper for the value of five rupees. Since the stamp papers for the remaining was not available, he was informed that the deficit amount of Rs. 35/-could be paid before the Sub-Registrar at the time of registration. The sale price ofRs. 17,000/- was paid to the vendor Kamala.

2.15. That on 08.04.1991, P.W.7 and his son P.W.8 had been to the Sub-Registrar''s Office along with the vendor Kamala and her husband and other witnesses. When P.W.7 had presented the sale deed before the first respondent for registration, he had demanded a sum of Rs. 125/-. When it was questioned, he told that the amount should be given. P.W.7 had paid Rs. 205/-towards registration fee and deficit stamp fee and apart from this he had also givenRs. 125/-in the denomination of Rs. 100/-, Rs. 20/-andRs. 5/-currency notes. P.W.7 was issued with a receipt for having registered the document. At the time of tendering the amount, P.W.8 was present there. His vendor Kamala and other witnesses had signed before the Registrar.

2.16. When they were about enter into the Office, one office assistant Kaliaperumal had prevented them saying that he would allow them to enter the office provided an amount of Rs. 50/-is given. Since P.W.3 was not having money, he had availed the same from his father and given to him. After receiving the amount, Kaliaperumal had asked them to wait as already a registration was going on. After sometime, P.W.3 and P.W.5 were allowed to go inside. The first respondent was present in his seat. P.W.3 had also presented the original partition deed before the first respondent. Whileso, the first respondent had asked P.W.3as to whether he had brought Rs. 300/-. For which P.W.3 had answered in affirmative and tendered the tainted currency notes (M.O.1 series). After receiving the currency notes, the first respondent had counted the same and kept it in the left side table drawer along with the document.

2.17. At that time, P.W.4, who is the brother of P.W.3and their father were present along P.W.5. The first respondent then told P.W.3 that it would take one hour for the completion of the registration and asked them to wait outside. Thereafter, P.W.3 and P.W.5 were standing near the entrance of the office, while P.W.4 and his father were walking out. When they were staying outside of the office, the first respondent had called the second respondent and handed over the document along with money, which were presented by P.W.3 and after receiving the amount along with the document, the second respondent had gone to his seat and counted the money and kept it in his table drawer while placing the document on table. Thereafter, the second respondent had taken something from the table drawer and gone to record room. His conduct created suspicion.

2.18. Subsequently, P.W.3 and P.W.5 had come out of the office of the first respondent and P.W.3 at about 12.45 p.m. had shown the pre-arranged signal to P.W.9. On noticing this, P.W.9 and his trap team rushed to the Office of the first respondent. P.W.9 was followed by P.W.3 and P.W.5. Then P.W.9 had introduced himself to the first respondent and he had also disclosed the purpose for which they had come there. Thereafter, P.W.9 had questioned the first respondent as to where the amount of Rs. 300/-, which was received from P.W.3 was kept. For which, the first respondent had replied that he had given to the second respondent and the second respondent had also replied that he had kept the amount in the bureau placed in the backside of the hall and by saying so he had proceeded to that hall. P.W.9 and other witnesses had also followed him. Then the second respondent had taken out the amount of Rs. 300/-along with the another amount of Rs. 125/-viz. in the denomination of hundred, twenty and five rupee currency notes. He had also handed over the money to P.W.9. Then P.W.9 had told the first respondent that the amount ofRs. 300/-(M.O.1 series) was given by P.W.3 only for the purpose of trapping him. Then M.O.1 series was handed over to the witness Venkatachalam and he was asked to compare the numbers of the notes with the numbers entered in Ex.P6,entrustment mahazar. The numbers were found tallied.

2.19. Thereafter, both the first and second respondents were subjected to sodium carbonate and phenolphthalein test separately. The left and right hand wash of first respondent was preserved separately in separate bottles and marked as M.O.2 and M.O.3respectively. Similarly, the left and right hand wash of the second respondent were preserved separately in separate bottles and marked as M.O.4 and M.O.5 respectively. All the witnesses had signed in the labels pasted on the material objects. The cover, in which the amount ofRs. 425/-was kept, was marked as M.O.8. All the materials were seized under a recovery mahazar under Ex.P12. Apart from this, P.W.9 had also seized a sum of Rs. 50/-from the office assistant Kaliaperumal under the same mahazar and other incriminating receipts and registers. Thereafter the first and second respondents were arrested and the irrespective residential premises were also searched after sending an advance intimation to the Court. The intimation has been marked as Ex.P21. No incriminating materials excepting Exs.P13, P14 and P15, were found. Thereafter, the first and second respondents were released on bail on their own bonds. The complaint Ex.P4 and the first information report Ex.P5 were also sent to the concerned Court.

2.20. P.W.9 had subsequently altered the section of law and included the second respondent in the case and to that effect he had prepared a report under Ex.P20 and sent to Court. P.W.9 had also prepared a rough sketch underEx.P22 in respect of the office of the first respondent. On the requisition made by P.W.9, P.W.11 was nominated as the investigating officer and he had also taken up the case for further investigation. After completion of the investigation, he had entrusted the case record with P.W.10. P.W.10 had taken up the case for further investigation and after the completion of his investigation he had laid a final report against the first and second respondents u/s 120(B) I.P.C. r/w Sections 7, 12 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,1988 and u/s 109 I.P.C.

2.21. With the evidence of P.W.11, the prosecution has closed its side.

The incriminating circumstances arising out of the testimonies of the prosecution witnesses were explained to the respondents and they were also examined as required u/s 313(1)(b) of the Code of Criminal Procedure. While so they had replied that they had nothing to with the alleged offences and that this case was foisted against them. Neither oral nor documentary evidence was adduced on behalf of the respondents.

On appraising the evidences both oral and documentary, the Trial Court has found the first and second respondents not guilty and therefore they were acquitted of the charges.

Being aggrieved by the Order of acquittal recorded by the Trial Court, the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Special Wing, Krishnagiri has preferred this appeal after invoking the proviso to Section 378 of the Code of Criminal Procedure.

Heard Mr. A.N. Thambidurai, learned Additional Public Prosecutor for the appellant and Mr. R. John Sathyan learned counsel for the respondents.

On perusal of the Judgment delivered by the Trial Court, the first and second respondents were acquitted mainly on the following grounds:

i. The name of the first respondent is K. Sundararajan. But, in the complaint as well as in the first information report, it has been wrongly stated as ''Subramanian''. This has given a suspicion in the mind of the Trial Court in respect of fixing culpability on the first respondent herein.

ii. P.W.3 and P.W.4 being brothers have not supported the case of the prosecution. Infact, P.W.3 being the complainant on whose complaint the law was set in motion has not supported the case of the prosecution as his evidence seemed to be conflicted with the evidence of P.W.5. The Trial Court has rejected the prosecuting conteagency ntion in projected respect by of the presumption u/s 20 of the Prevention of Corruption Act, 1988.

The learned Additional Public Prosecutor has also based his arguments on the above points.

It is also pertinent to note here that the defacto complainant viz.P.W.3 and his brother have not supported the case of the prosecution. It may be more relevant to note here that as per the case of the prosecution, the first demand was made by the first respondent from P.W.3 on26.03.1991. The second demand was made by him on03.04.1991. For the third time, the first respondent had made the demand on 08.04.1991 at about 11.00 a.m. and the tainted money was tendered by P.W.3 and after showing the pre-arranged signal the trap laying troop under the stewardship of P.W.9 had caught the first respondent red handed along with the second respondent and the sodium carbonate and phenolphthalein test conducted on the fingers of the first and second respondent were proved positive and then the tainted money was recovered. They were also apprehended after seizure the incriminating materials.

In sofar as the evidence of P.W.3 and P.W.5 are concerned, P.W.3 would speak that at the time of tendering the amount, apart from P.W.5 his father and his brother P.W.4 were also present. But, none of them had spoken to about this fact. Admittedly, the father of P.W.3 was not examined or not even cited as witness here. As evident from the testimonies of P.W.3, he had been to Mangalampet Registrar''s Office to register a partition deed in respect of their family property. He would state that in respect of their family properties measuring 7 Acres and 32 Cents, a partition was effected between P.W.3 and P.W.4 and his father in the presence of village panchayatars. The document was written by one scribe Annamalai and when he was trying to register the partition deed it was alleged that the first respondent had demanded a sum of Rs. 500/-on26.03.1991 and on the request made by the first respondent, it was reduced to Rs. 300/-. As adumbrated supra, P.W.4,who is none other than the brother of P.W.3 has not supported the case of prosecution. In many aspects, there are conflicts between the testimonies of P.W.3 and P.W.5.As revealed from the evidence of P.W.9, he had sent a memorandum, requesting Joint Director of Agriculture and Junior Executive Engineer, Soil Conservation Department to send witnesses for the organisation of trap. But, that memorandum has not been marked here.

In sofar as this case is concerned, two sets of facts encompasses:

i. Based on the alleged demand made by the first respondent on 26.03.1991 at 04.30 p.m. and second demand on 03.04.1991, P.W.3 had lodged a complaint before P.W.9 at 04.00 p.m. On04.04.1991.

ii. WhenP.W.7 and P.W.8 went to the first respondent''s office to register their sale deed along with the vendor Kamala, it is alleged that he had demanded a sum of Rs. 125/- and that amount was also given by P.W.7 to the first respondent. Admittedly, P.W.7 did not prefer any complaint. As per the case of the prosecution, the amount given by P.W.3 and the amount given by P.W.7 i.e. Rs. 300/-smearedwith phenolphthalein powder and Rs. 125/-notsmeared with phenolphthalein powder were placed in a single cover M.O.8.

As observed earlier, P.W.8, who is none other than the brother of P.W.7 has also not supported the case of prosecution. As rightly observed by the Trial Court, the first respondent''s name is ''Mr. K. Sundararajan''. But, both in the complaint as well as in the first information reportviz.Exs.P4 and P5 his name is wrongly given as ''Mr. Subramanian''. But, this has not been properly investigated by P.W.10 and P.W.11 as well as P.W.9. Infact, P.W.9 says that he had prepared a report in respect of the change of the name of the first respondent as well as the alteration of section of law under Ex.P20. As revealed from his evidence, this report under Ex.P20 was prepared after completion of all the proceedings viz. recovery of alleged tainted currency notes, effecting of arrest of first and second respondents and their release on bail on their own bond from the police station itself. Under this circumstance, the evidentiary value of Ex.P20was questioned by the learned counsel for the respondents.

Ex.P20 appears to have been addressed to the learned Chief Judicial Magistrate and Special Judge, South Arcot District, Cuddalore. Ex.P20 reads as follows:

The complainant Tr. Gopal in his complaint dated 04.04.1991 has stated the name of the Sub-Registrar, Mangalampet as Tr. Subramanian. But later he ascertained and stated on05.04.1991 that the name of the Sub-Registrar, Mangalampet as Tr. Sundararajan. The verification also confirmed the same. Further, during the trap proceedings besides Tr. Sundararajan, Sub-Registrar, two other officials (i.e. Tr.A. Eswaran, Assistant and Tr.A. Kaliaperumal, Office Assistant) attached to the Sub-Registry, Mangalampet also involved themselves in corrupt practices related to the above complaint. They were also arrested and added as additional accused in this case. In this case, it is submitted that in addition to the section 7 of the Prevention of Corruption Act, 1988,Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 are also added.

It is seen from Ex.P20 report submitted by P.W.9to the learned Chief Judicial Magistrate and Special Judge, South Arcot District, Cuddalore, the name of the first respondent was subsequently ascertained by P.W.9 as ''Sundararajan'' and not ''Subramanian''. It is also revealed that apart from the first and second respondents one Kaliaperumal, Office Assistant was also arrested by P.W.9.In Ex.P12 recovery mahazar also, the arrest of the office assistant Kaliaperumal along with the first respondent has also been mentioned. Neither the investigating officer P.W.11 nor P.W.10, who laid the charge sheet has spoken to about this fact. Even in the charge sheet also, P.W.10 has not stated anything about the deletion of the office assistant A. Kaliaperumal. It is also pertinent to note here that the name of another accused Easwaran does not find a place either in Ex.P4 complaint or in Ex.P5 first information report.

The prosecuting agency remain silence about the fact of the third accused viz. A. Kaliyaperumal, Office Assistant of the Mangalampet Sub-Registrar''s Office.

On coming to P.W.2, who has granted the order of sanction to launch prosecution against the first and second respondents has also not considered this lacuna. Ex.P3 is the order of sanction. In which, he has stated that he being the authority viz. Inspector General of Registration, competent to remove the said K.Sundararajan and A. Easwaran from office after fully and carefully examining the materials such as statement of witnesses and documents placed before him in regard to the said allegations and circumstances of the case satisfied that the said K. Sundararajan and A. Easwaran should be prosecuted for the aforesaid offence and therefore he accorded sanction u/s 19(1)(c) of the Prevention of Corruption Act, 1988 for the prosecution of the first and second respondents. But, he does not speak about Ex.P20 and he has also not stated as to whether he had considered the arrest of yet another official viz. A. Kaliaperumal. Ex.P12 recovery mahazar ie.Post Trap Mahazar and Ex.P20 alone speak about the arrest and subsequent release of yet another official A. Kaliyaperumal. Barring these two documents, nothing is available on record to show as to why the name Mr. A. Kaliaperumal was deleted when the charge sheet was

Mr. R. John Sathyan, learned counsel for the respondents has contended that P.W.3 and P.W.4 being the main witnesses have not supported the case of prosecution as they both had turned hostile. Similarly, P.W.8, who is none other than the brother of P.W.7 has also turned hostile and another important witness P.W.7 has not lent support to the case of prosecution. P.W.2, sanctioning authority has also not applied his mind, which is sine quonon in this case. All these circumstances have made the case of prosecution to lose the balance.

He has also contended that the order of acquittal recorded by the Trial Court is well considered and hence it does not require any interference of this Court to reverse the finding. He has added further that since the respondents were acquitted by the Trial Court after evaluating the evidences of prosecution witnesses the interference of this Court cannot be in slipshod manner. In support of his contention, he has made emphasis on the filed? This discrepancy find a place in the prosecution case makes a vacuum. decision reported in V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., .

He has also placed another decision reported in Jagan M. Seshadri Vs. State of Tamil Nadu, . In this case, the Apex Court has held that

the appreciation of evidence by trial Court did not suffer from any law. Acquittal cannot be set aside merely on grounds that another view was possible.

In Satbir Singh and Another Vs. State of Punjab, , it is held that

as a practical proposition, in any appeal against acquittal, it is always necessary that the reasons given by the trial Court for recording an acquittal should be examined by the High Court. If the conclusions of the trial Court are not based upon any evidence or they are such as no reasonable body of men, properly instructed in law, can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court will be justified in taking a contrary view by giving its own reasons. It is not enough that it is just possible for the High Court to take a contrary view. While interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial Court having regard to all the relevant evidence in record.

On coming to the instant case on hand, this Court has gone through the Judgment of the Trial Court completely and finds that the Judgment of the Trial Court does not suffer from any infirmity and hence the interference of this Court does not require.

In the result, the appeal is dismissed and the Judgment dated 09.10.1998, and made in Special Case No. 2 of1994, on the file of the learned Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Special Court, Cuddalore is confirmed.