In Re: C. Ramaswami

Maheswaran, J.—The appellant Ramaswami has been convicted of an offence punishable under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, (Act 2 of 1947), by the learned First Additional Sessions Judge, Madras and was sentenced to rigorous imprisonment for four years and to a fine of Rs. 1,000.

The facts leading to his conviction need narration. The appellant Ramaswami was at the material time a Revenue Inspector at the Taluk office, Edward Elliots Road, Madras-4. P.W.I, Moramed Ibrahim, a transport contractor, residing at No 101/1, Mowbrays '' Road, Madras, applied on 14th February, 1975 to the Tahsildar, Mylapore, Madras, for a solvency certificate to the value of Rs. 3,00,000, for submission to the Collector's Offices, Cuddalore In connection with a tender in respect of his transport business. This solvency certificate should be produced by him before 25th February, 1975. Pressed for time, he approached on 17th February, 1975, the appellant who is called Revenue Inspector No. 3 in the Taluk Office.

The appellant demanded of P.W. l a sum of Rs. 1,500 as illegal gratification far getting the solvency certificate. He informed P.W.1 that chat money is required for paying the Tahsildar and the Deputy Tahsildar also, P.W.1 then upon told the appellant that he has got documents to prove the value and the ownership of the property and that such a solvency certificate could be granted without any money being paid to the appellant.

The appellant told P.W. l to go over to the taluk office on the next day and accordingly on 18th February, 1975 P.W.1 went to the taluk off ice at about 3 p.m. with necessary documents and told the appellant that he has also applied for an encumbrance certificate, but the appellant told P.W.1 that all those certificates are not necessary and that if the amount which he asked for is not paid, the matter will be delayed. The perplexed businessman, P.W.1 saw the Tahsildar at the Office, who asked him to see the Deputy Tahsildar. On the direction of the Deputy Tahsildar, P.W.1 took the appellant and saw the Deputy Tahsildar. The Deputy Tahsildar told the appellant that be himself should decide these matters and should not send the parties to him. The appellant and P.W.1 came out of the room of the Deputy Tahsildar and the appellant made it clear to P.W.1 that as he required solvency certificate to the value of Rs. 3,00,000, he has to pay Rs. 1,500 at the rate of Rs. 500 per lakh and that such a practice of receiving money is prevalent in the taluk office. Thereupon, P.W. l restricted his claim for a solvency certificate to the value of Rs. 2,00,000 and promised to bring Rs. 1,000 on the next day.

But, on 19th February, 1975 P.W,1 proceeded to the office of the Deputy Superintendent of Police. Vigilance and Anti-Corruption, T. Nagar, Madras and saw P.W.6, Sundararajan, Deputy Superintendent of Police, Vigilance and Anti Corruption and informed him about the demand made on him by the appellant. P.W.6 wanted P.W. l to give a written complaint. P.W. l gave Ex.P 13 a report in writing. P.W.6 registered it as Crime No. l of 1976 under S. 161, I.P.C. Ex. P12 is the F.I R in the case. He instructed P.W. l to see him in his office at 2 p.m. with the amount he proposed to pay as bribe to the appellant. P.W.6 directed P.W.5 Ramachandran, Inspector of Police, Vigilance and Anti-Corruption, to procure two official witnesses. He accordingly got P.W.2, Manickam, a Junior Engineer, employed in the Industries and Commerce Department and Dr. Karthikeyan, a Veterinary Assistant Surgeon, P.W. l went to the office of P.W.6 as directed and there he was introduced to P.W.2 and

Dr. Karthikeyan and then P.W. l produced seven (7) hundred rupees in denominations of hundred rupees and fifteen(15) twenty rupee currency

notes. P.W.6 smeared Phenolphthalein powder en the currency notes and P.W. 2 and Dr. Karthikeyan handled the currency notes at the request of P.W.6. Later they dipped their fingers in sodium carbonate solution already prepared and kept there and the solution turned pink. The significance of the test was explained to those witnesses and also to P.W. l. P.W.6 then recorded the serial numbers of the currency notes in a mahazar attested by P.W.2 and Dr. Karthikeyan and then returned the currency notes to P.W. l. P.W.6 gave a tape recorder to P.W. l directing him to keep it concealed on his person and accordingly he kept it in his waist and he also asked him to switch it on when entering toe taluk office and switch It off after ho leaves the taluk Office. P.W.6 further instructed P.W. I to give a signal if the appellant accepts the money which he proposed to give. He then asked P.W.1 to proceed in a car and P.W.1 did accordingly. Later, P.W.6 Instructed a team of inspectors to follow his car and they parked the car in a lane adjacent to Rajeswari Kalyana Mandapam and instructed P.W.S to proceed by walk and remain in Jammi buildings. P.W.6 followed P.W.1 in another car along with P.W.2 and Dr. Karthikeyan and P.W 6, P.W.2 and Dr. Karthikeyan remained at the Royapettah High Road, near the Taluk office. P.W.1 came out and gave the signal and after that P.W.6 proceeded along with P.W.2 and Dr. Karthikeyan to the Deputy Tahsildar's (P.W.3''s) room and disclosed his identity and wanted P.W.3 to point out Revenue Inspector No. 3.

P.W.3 pointed out to the appellant in the central hall and P.W.6 took the appellant to the Tahsildar's room and introduced himself and the two witnesses to the Tahsildar and asked the appellant to produce the sum of Rs. 1,000 which he has received, but the appellant denied having received any money. P.W, 6 then conducted phenolphthalein test on him. The appellant was asked to dip his fingers in the sodium carbonate solution and his fingers turned pink. At that time P.W.5 came and informed P.W.6 that the money was passed on to A.2, one Krishnan, a last grade Government servant working in the Revenue department. P.W.6 asked the Deputy Tahsildar, P.W.3 to produce Krishnan who was a co-accused with the appellant. P.W.3 produced him and the co-accused produced the money, M.O.1 series from his pocket and phenolphthalein test was conducted on the co-accused also and his fingers also turned pink. The numbers of the currency notes noted by P.W.6 accorded with the numbers of the bunch of currency notes M.O.1 series, produced by the co-accused. He sent for P.W.1 and played the tape recorded in the presence of the Tahsildar and then removed the Cassette containing the tape and sealed it in a cover and he arrested the appellant and Krishnan, the co-accused and addressed the Collector of Madras through the Director of Vigilance and Anti-Corruption to accord sanction for the prosecution of the appellant and the other accused. The successor to P. W.6 filed the charge-sheet in the case.

The appellant when questioned by the Special Judge state that P.W.1 wanted the solvency certificate immediately so as to enable him to submit his tender to the Collector of South Arcot at Cuddalore in connection with his transport business and that P.W. l took him and gave him an envelope and on opening it he found that it contained currency notes and that P.W.1 asked. him to keep it, but he returned it saying that he has already prepared his report and then P.W.1 gave two numbers of his phones, that he has put in a service of ten years and that there are no adverse reports against him.

The Special Judge convicted him under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to undergo rigorous imprisonment for ''four years. The learned Special Judge acquitted the co-accused.

Certain facts which are not in dispute, may be stated-

X X X

Discussion of facts is omitted-Ed.

It is contended for the appellant by the learned counsel that P.W.1 is a partisan witness and therefore, cannot be relied on to convict the appellant. He invited my attention to the ruling in Darshan Lal Vs. The Delhi Administration, That was a case where a police constable was convicted under S. 5(21 of the Prevention of Corruption Act and also under S. 161, I. P. C. In that case, one Niranjan Lal, a stamp vendor, against whom certain complaints were received for overcharging his customer on the sale of stamp gave a complaint to Sri Harnaik Singh Deputy Superintendent of Police, Anti-Corruption branch, that the police constable was demanding of him a bribe of Rs. 100. A trap was laid and one, Anand Behari and Chatish Chandra served as witnesses. Niranjan Lal gave a sum of Rs. 103 to the police constable at the bus stand which he immediately threw away on smelling a police raid. The constable's case was that while he was going from the police post to the bus stop, Niranjan Lal attempted to bribe him and Niranjan Lal himself threw the currency notes on the ground. It should be noted that the currency note was not recovered from the person of the police constable, but it was Chatish Chandra who picked up the currency note from the ground and handed it over to Sri Karnaik Singh. Their Lordships of the Supreme Court found that complaints about Niranjan Lal were being investigated by the accused constable and that he has also recorded some statements in that connection and that Niranjanlal must have borne a grudge against the constable and the only other witness is Chatish Chandra who does not speak about the first offer at all, that there is no independent and reliable corroboration of the statements of Niranjanlal and Anand Bsharilal as regards the first offer and that under those circumstances, it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjanlal to the constable. It war in such circumstances that their Lordships observed that the Court should require independent and trustworthy corroboration of the evidence of Niranjanlal and Chatishchandra who laid the trap. In the end the Supreme Court set aside the convictions.

In Dalpat Singh and Another Vs. State of Rajasthan, the Supreme Court has stated that though the trap witnesses can be considered as interested witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration. To the same effect is the ruling in The State of Bihar Vs. Basawan Singh, Their Lordships of the Supreme Court in that case observed-

The value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination, etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, as in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, where the Court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.

Therefore, it is clear that the evidence tendered by a witness cannot be rejected merely on the ground that the witness is partisan or interested.

All that is required is that judicial approach has to be very cautious in dealing with such evidence. Bearing these principles in mind, if we analyse the evidence Of P.W.1 it would be found that the appellant received the tainted money from P.W.1 and immediately returned it directing the co-accused to receive the amount from P.W.I. The evidence of P.W.1 is clearly corroborated by the conversation between him and the appellant, recorded on the tape, which has been transcribed and marked as Ex.P 5 and also by the phenolphthalein test. This leads on to the question as to how far the tape recorded conversation is admissible in evidence. The ratio of the decision of the Supreme Court in Yusufali Esmail Nagee v. State of Maharashtra (1968) M.L.J. (Crl.) 247 : 1961 L.W. Crl 12, is that such tape recorded conversation is relevant and is-admissible. That was a case where the appellant in that case offered bribe to one Sheik, a municipal clerk. Sheik informed the police and the police laid a trap. Sheikh called Nagee at his residence. The police kept the tape recorder concealed in another room. The tape recorder was kept in the custody of the police officer. Sheikh gave evidence. The tape recorded corroborated his testimony. Their Lordships observed that-

If a statement is relevant and accurate, an accurate tape record of that is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voice may be properly Identified. One of the features of magnetic tape recording is the ability to erase and reuse the recording medium. Because of this facility of creaser and reuses, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

In this case, the conversation was between P.W.1 and the appellant. P-W. l was offering the bribe which the appellant had demanded of P.W.1 earlier. P.W.1 speaks to the fact of P.W.6 giving the tape recorder and instructing P.W.1 to keep it concealed on his person so as to record the conversation between him and the appellant. P.W.2, the junior Engineer and the official witness also corroborates the evidence of P.W.1 that P.W.6 gave a tape recorder to P.W.1 to keep it on his person and that P.W.6 also instructed him as to how he should operate it. P.W.1 identified the voices of the appellant when the tape containing the conversation was played before the Special Judge in his chambers in the presence of the appellant and the co-accused and their counsel and in the presence of the Special Public Prosecutor. The transcription has been marked as Ex.P 5.

The tape was played at the taluk office in the presence of the appellant and the co-accused and P.Ws.2 and 3 and the Tahsildar, P.W.l''s evidence disclose that the "cassette" containing the tape was sealed in a cover, Ex.P 8 series, attested by the Tahsildar and other witnesses (I myself had it played in open Court in the presence of the Public Prosecutor and the counsel for the appellant) and I find that the transcription in Ex.P 5 accorded with the conversation recorded in the tape). It is clear from the recorded conversation that the appellant has received the bribe amount. The appellant also asked P.W.1 whether the money consists of hundred rupee currency rotes, to which P.W.1 replied that there are seven notes in the denomination of rupees hundred and the rest are twenty rupees notes. P.W.1 also stated that he has brought Rs. 1,000 which he demanded of him to which the appellant replied "right". It is also seen from the conversation that sometime after receiving the money, the appellant returned the money to P.W.1 asking him to keep it and telling him that he would receive the amount after the certificate is ready. The appellant also told P.W.1 that he would phone to him. P.W.1 further furnished the phone numbers of his office and house. It should here be noted that this Ex.P 4 was seized from the person of the appellant under a mahazar, Ex.P.9 by P.W.6. It is also clear from the Ex.P.5 that out of this amount, the Tahsildar has to be paid Rs. 400 and the Deputy Tahsildar Rs. 300. The co-accused also joins in the conversation and says that formerly Tahsildars and Deputy Tahsildars did not compete for the seat in the Taluk Office, but now they bribe Rs. 2,000 or Rs. 3,000 to procure a seat in the Taluk Office, so that they may earn. It is further seen that the appellant told the co-accused that "P.W.1 would give and he could receive". The co-accused also says that hundred rupee currency notes should be changed to denominations of Rs. 10. When P.W.1 asked the reason, the co-accused stated that he has been directed to receive only in denomination of Rs. 10.

The voices in the tape recorded conversation have been identified by P.W.I. P.W. 3. the Deputy Tahsildar, has admitted that the Deputy Superintendent of Police, played the tape recorder in his presence and that it contained the recorded conversation of the appellant, P.W.1 and co-accused. This tape recorded conversation is genuine and is free from tampering or mutilation.

The conversation therefore establishes beyond doubt that the bribe amount tendered by P.W I. was received by the appellant. This evidence of P.W.1 is clearly corroborated by this tape recorded conversation between the appellant and P.W.I. Further-corroboration is afforded by the phenolphthalein a test conducted on the appellant and the co-accused. The evidence shows that the currency notes were treated with phenolphthalein powder. The fingers of the appellant as well as those of the co-accused turned pink when dipped in the solution of sodium carbonate. The desirability of applying the phenolphthalein test in trap cases have been emphasized in Raghbir Singh Vs. State of Punjab, In Som Prakash Vs. State of Delhi, . His Lordship Krishna Iyer, J, observed-

It is but meet that the science oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aid to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of Scientific research to prove guilt.

It is, therefore, patently clear from the evidence of P.W.1, that the appellant received the bribe amount. It is also proved by the tape recorded conversation and by the phenolphthalein test. Therefore, the argument of the learned counsel for the appellant that traps are tainted and trap witnesses are unworthy, does not advance his case, for the ruling cited by the appellant merely indicates the need for caution and corroboration in the circumstances of that case.

It is next contended that the co-accused from whom the money M.O.1, series currency notes, were recovered has been acquitted by the learned Special Judge and therefore the conviction of the appellant is bad. It is a matter of great regret that the learned Special Judge has acquitted the co-accused, (A.2) when the currency notes MO. 1. series, were recovered from him. It should be noted that the currency notes M.O.1, series, were recovered from A. 2 and that his fingers turned pink when dipped in the solution of sodium carbonate. A personal the judgment of the Special Judge leaves on me an unfortunate impression that the Special Judge has labored hard to find reasons for the acquittal of the co-accused.

What is more regrettable is that the investigating agency, namely, the vigilance department, has not cared to file an appeal against the acquittal of the co-accused. As the State has not appealed against the acquittal of the co-accused, I leave the matter well alone. Merely because the co-accused has been acquitted, it would not follow that the appellant should also be acquitted. The evidence of PW.l, though a trap witness, is clearly corroborated by the tape recorded conversation and by the phenolphthalein test. There is no reason to discredit his testimony. In this cases P.W.I, wanted to get the solvency certificate urgently. Bribes are paid not only to get unlawful things done, but to get lawful things done in time, since time means money. The term speed money, is a misnomer. It does not activism the administration, but slows down. Delays are deliberately caused to invite payment of bribe. The tape recorded conversation shows that not only the appellant, but others also are interested in this bribe money. This is perhaps a case, where the bigger fishes have escaped the criminal net and a smaller fry got entangled in she net. I have already referred to the fact that the appellant is a public servant. One may accept money that is offered, or solicit payment of bribe or extort the bribe by threat or coercion and in each case he obtains a pecuniary advantage by abusing his position as a public servant and if a person obtains a pecuniary advantage by the abuse of his position, he will be guilty under Sub-cl. (d) of S. 5(1) of the Prevention of Corruption Act. The conviction is therefore correct and is confirmed.

As regards the sentence I must point out that the sentence of rigorous imprisonment for four years is rather excessive. Having regard to the fact the appellant has lost his job and was in mental agony for nearly four years, I feel that it will meet the ends of justice if the sentence of imprisonment is reduced from four years to one year rigorous imprisonment. In the result the conviction is confirmed and the sentence of fine is maintained and it confirmed and the sentence of imprisonment it reduced from four years to one year rigorous imprisonment. Except for the modification in the sentence of imprisonment, the appeal in other respects fails and is dismissed.