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Judgment
S. Sardar Zackria Hussain, J.—The appellant is the sole accused in C.C. No. 129 of 1997 on the file of the Principal Special Court for CBI
Cases, Chennai. The appeal is filed against the judgment dated 30.12.1997 in the said case convicting and sentencing the appellant to undergo
rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default to undergo six months rigorous imprisonment for the offence u/s 7 of
Prevention of Corruption Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to undergo rigorous
imprisonment for six months for the offence u/s 13(1)(d) read with 13(2) of the Prevention of Corruption Act.
The brief facts that led to the filing of this appeal are as follows:-
(a) The appellant (hereinafter referred to as ""the accused) was employed as group ""D"" staff, A/C and Power, Harbour Telephone Exchange,
Chennai-1 and as such, he was a public servant. The accused demanded and accepted a sum of Rs. 1,500/- on 9.11.1992 from P.W.2
Kumaresan, who is the cousin of Tmt.Nagalakshmi at No. 38, Mosque street, Vadapalani, Chennai-26, as illegal gratification for getting
permanent telephone connection under OYT. The amount was demanded at 8.05 p.m. on 9.11.1992 in the house of Tmt.Nagalakshmi and the
appellant was caught red handed while demanding and accepting the illegal gratification.
(b) Jayakumar(P.W.5), who is the younger brother of the accused has been working as LDC in Madras Telephones Commercial Section (South),
G.R.Complex, Mount Road, Chennai-35 and P.W.8 Narayanaswamy was also working in the same Section as UDC and they are dealing with
new telephone connections of Madras Telephones(South) and they used to help the accused and inform with regard to new telephone connections
and the movement of files and the accused used to meet the subscribers and by convincing them as if he was helping them in getting new telephone
connection, he was collecting money.
(c) Tmt.Nagalakshmi is a widow and was residing at No. 38, Mosque Street, Vadapalani, Madras 26 and she applied for new telephone
connection under OYT Scheme and she wanted urgent telephone connection in her residence, since she was under medical treatment for diabetes
and chest pain. Then she also applied for temporary telephone connection to the Chief General Manager, Madras-10, enclosing medical
certificate. The General Manager(Exchanges), Madras Telephones sanctioned temporary telephone connection on 31.12.1991 to her for six
months and it was forwarded to the AGM(South) for further action and the file was dealt with by Jayakumar(P.W.5), brother of the accused in
providing telephone connection to Tmt. Nagalakshmi. In May, 1992, she applied for extension of six months for the temporary telephone
connection and it was processed by V.Narayanaswamy (P.W.8) and extension was approved. As per the release of 747 new telephone
connections ordered by AGM(South) on 5.8.1992, Tmt. Nagalakshmi was eligible for new telephone connection and Narayanaswamy(P.W.8),
who was dealing with the file, put up note to regularise the temporary line already available with Tmt.Nagalakshmi and to close the temporary line
and it was finally approved by the Commercial Officer South(III) on 27.10.1992. On 28.10.1992, the telex message for closing the temporary
connection in respect of telephone No. 427112 provided to Nagalakshmi and simultaneously for providing permanent connection with the same
telephone number was transmitted to the officials concerned and though the temporary telephone connection file will have to go to the Section
dealing with new permanent telephone connection, the temporary connection dealing with new permanent connection was not sent to the Section
dealing with new permanent connection till 9.11.1992. The accused came to know all the above movements of file, passing orders etc., through his
brother P.W.5 Jayakumar and P.W.8 Narayanaswamy, who dealt with the said files and after knowing about the release of new permanent
telephone connection to Tmt.Nagalakshmi, the accused went to her house on 6.11.1992 at 7.30 p.m., during which time her cousin P.W.2 was
present and the accused introduced himself as an employee of Madras Telephones and informed her that he can arrange for a permanent telephone
connection to Tmt.Nagalakshmi, if she prepares to pay Rs. 3,000/- as bribe. The accused also informed her that he would come to her house on
9.11.1992 and at that time Rs. 1,500/- should be paid as advance and the balance of Rs. 1,500/- on receipt of allotment letter. The accused
himself wrote a letter on behalf of Tmt.Nagalakshmi and obtained signature of Tmt.Nagalakshmi and then informed her that he would come to her
house at about 7.00 p.m. on 9.11.1992.
(d) Tmt.Nagalakshmi, who was not willing to pay the bribe to the accused, requested her cousin to help in the matter, who on behalf of her sister,
lodged a written complaint on 9.11.1992 to the Superintendent of Police, CBI, ACB, Madras, and on the basis of which, the complaint was
registered by the Inspector of Police(P.W.4) and he made discrete enquiries, in which it came to light that the accused was in the habit of
demanding and accepting illegal gratification from the subscribers, who in the normal course had been allotted telephone connections, in the pretext
of getting them new telephone connections. Accordingly, a trap was held as directed by the said Inspector of Police (P.W.4).
(e) In the trap conducted by P.W.4 in the presence of Govindarajan (P.W.3), Assistant Manager(Vig), UIIC, Royapettah, Madras and one
G.Sankaran, the accused demanded and accepted a sum of Rs. 1,500/- on 9.11.1992 from P.W.2 Kumaresan, who is the cousin of
Tmt.Nagalakshmi at No. 38, Mosque street, Vadapalani, Chennai-26, as illegal gratification for getting permanent telephone connection under
OYT. The amount was demanded at 8.05 p.m. on 9.11.1992 in the house of Tmt.Nagalakshmi and the accused was caught red handed while
demanding and accepting the illegal gratification. Necessary test was conducted and mahazars were also prepared. The proceedings after the
acceptance of the bribe by the accused were video-graphed by constable Nagarajan, using the departmental video camera. Then the trap party
proceeded to the house of the accused and as per the search made, they recovered 11 diary sheets, out of which in one of the diary sheets, the
name of Tmt.Nagalakshmi was written. After obtaining Sanction Order Ex.P-1 and completing the investigation, the final report was filed.
In order to prove the case of the complainant, P.Ws.1 to 10 were examined and Exs.P-1 to P-26 were marked and M.Os.1 to 4 were also
marked on the side of the complainant in the trial Court.
When the accused was questioned u/s 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against
him by the respondent, the accused denied the case of prosecution and stated that false case has been foisted against him.
The trial Court, considering the evidence adduced on the side of the prosecution, found the accused guilty and convicted and sentenced to
undergo as set out above, which is under challenge in this appeal by the accused.
Heard Dr.A.E.Chelliah, learned Senior Counsel representing Mr.P.Karunakaran, learned counsel appearing for the appellant/accused and
Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases appearing for the respondent/State.
The learned Senior Counsel appearing for the appellant/accused submitted that there have been no proper sanction to prosecute the accused
under the Rules 10, 11 and 19 of CCA Rules with regard to appointment, removal and sanction. In this regard, the learned Senior Counsel argued
that Rule 10 of CCA Rules speaks about appointment of enquiry officers, Rule 11 speaks about the appointment and functioning of enquiry
officers and Rule 19 relates to penalty imposed on a Government servant and action on conviction and binding them to good behaviour, etc. Since
P.W.1 has stated in his evidence that there is a post of A.E.(Administration) and who appoints the persons and as such, he alone can remove any
person against whom disciplinary action is initiated. Then referring the evidence let in on the side of the prosecution that the trap was laid in the
house of Tmt.Nagalakshmi and the proceedings were video-graphed and the video cassette is marked as M.O.4, but the person who has taken
the videograph has not been examined, it is vehemently contended by the learned Senior Counsel that the non-examination is fatal to the case of
prosecution. Therefore, he further submitted that there is nothing to indicate that the sanctioning authority was satisfied with the materials placed for
sanction to prosecute against the accused. The learned Senior Counsel strenuously argued that the non-examination of Tmt.Nagalakshmi is also
fatal to the case of the prosecution, in view of the fact that the telephone connection was only given to her on making application and it is in her
house the trap was laid and during which time she was also present. With regard to signature of the said Nagalakshmi, it is submitted that she
signed in English in Ex.P-6 and in Exs.P-2, P-3, P-4 and P-8 are in Tamil and that the prosecution has not explained as to why the said
Nagalakshmi was not examined to prove that she has not signed in Ex.P-13 on 7.11.1992 in her house as claimed by the accused. Then, referring
to the telex message Ex.P-24 sent to her in October itself informing that permanent telephone connection has been given to her and as per the
evidence of P.W.9 the temporary connection was made permanent on 2.10.1992, it is contended that there was no necessity for her to request the
accused to come to her house on 9.11.1992 to take bribe money. Though it is claimed that the demand and acceptance of bribe money by the
accused is for providing permanent telephone connection to Tmt.Nagalakshmi and that money was also demanded and accepted in her house, she
has not preferred any complaint and also not examined herself as a witness. By referring the evidence of P.W.3, it is argued that the numbers
relating to the currency notes given to the accused were written in a piece of paper and after the mahazar Ex.P-15, the paper was torn, but there is
no mention about the slip of paper in Ex.P-15. It is the evidence of P.W.4 that he had taken video camera along with constable Nagarajan to take
the proceedings after the demand and acceptance had taken place. On the basis of such evidence no inference can be drawn about the acceptance
of the money by the accused after demanding the same for the purpose of providing permanent telephone connection to Tmt.Nagalakshmi. The
learned Senior Counsel also submitted that there have been contradiction in the evidence of P.W.3 (mahazar witness), who has stated that
immediately after the accused entered into the house of Tmt.Nagalakshmi, video-graph was taken, whereas P.W.4 has stated that only after the
demand and acceptance of money by the accused had taken place, he has taken the video-graph.
The learned Special Public Prosecutor for CBI Cases argued that since P.W.1 has got authority to remove Group-D employees of the
Telephone Department and P.W.1 belonged to Group-B Cadre of the Telephone Department and as per the Central Civil Services (Classification,
Control and Appeal) Rules, P.W.1 is competent to remove the accused from service and as per the relevant provision of the Prevention of
Corruption Act, P.W.1 has accorded sanction to prosecute the accused which can be interfered only if it is ""frivolous or vexatious"". It is also
submitted that there is no irregularity in non-marking the rules in view of the Section 57 of the Indian Evidence Act. Then by referring the evidence
of P.W.2, who handed over Ex.P-14 dated 9.11.1992, the complaint made to CBI by Tmt.Nagalakshmi, in which the letter given by
Tmt.Nagalakshmi Ex.P-13 dated 7.11.1992 is mentioned, the learned Special Public Prosecutor for CBI Cases vehemently contended that it has
not been satisfactorily explained by the accused as to why he visited the house of Tmt.Nagalakshmi on 6.11.1992. He further submitted that
P.W.2 and P.W.3 were present at the time of the trap proceedings that took place on 9.11.1992 and the entrustment mahazar Ex.P-15 and the
seizure mahazar Ex.P-16 both dated 9.11.1992 clearly establishes the case of prosecution, inasmuch as the evidence of independent witness
P.W.3, who has signed both Exs.P-15 and Ex.P-16, is corroborated by the evidence of P.W.4 in proving the case of prosecution about the
demand and acceptance of bribe money by the accused attracting the offence u/s 7 of the Prevention of Corruption Act. As regards the non-
examination of the videographer, Nagarajan, who videographed on 9.11.1992 at the residence of Tmt.Nagalakshmi, it is submitted that it was not
seriously challenged by the accused in the cross-examination of the Trap Officer P.W.4 or the Investigation Officer P.W.10. As regards the
temporary telephone connection given to the accused and which has been made permanent as per the order of the Telephone Department, P.Ws.8
and 9 have stated so clearly in their evidence. Inasmuch as the appellant/accused abused his official position as Grade ""D"" staff of the Telephone
Department, the offence u/s 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act is attracted.
Learned Special Public Prosecutor for CBI cases has also relied on the decision in K. Veeraswami Vs. Union of India (UOI) and Others, , in
which the Full Bench of the Hon''ble Supreme Court held thus in paragraphs 49 and 50:-
It is said that Section 6 envisages that the authority competent to remove a public servant from the office should be vertically superior in the
hierarchy in which the office exists. Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servants
against whom sanction is sought from the sanctioning authority. Where the office held by the public servant is not a part of vertical hierarchy in
which there is an authority above the public servant, then, Section 6 can have no application. We have been referred to the observations of Desai,
J., in R.S. Nayak Vs. A.R. Antulay,
That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has
been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of
the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference
of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided
that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from
the office.
With the utmost respect, we are unable to agree with the above observations. It seems to us that these observations were not intended to lay
down the law that the authority competent to grant sanction for prosecution of public servant should be vertically superior in the hierarchy in which
the office of the public servant exists. That was not the issue in that case. The observations therefore, are not meant to be and ought not to be
regarded as laying down the law. It has been said almost too frequently to require repetition that judgments are not to be read as statues. In our
opinion, it is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public servant
should be vertically superior in the hierarchy in which the office of the public servant exists. There is no such requirement u/s 6. The power to give
sanction for prosecution can be conferred on any authority. Such authority may be of the department in which the public servant is working or an
outside authority. All that is required is that the authority must be in a position to appreciate the material collected against the public servant to
judge whether the prosecution contemplated is frivolous or speculative. Under our enactment the power has been conferred on the authority
competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prosecution for an
offence under that Act has been conferred upon the Attorney General or Solicitor General.
The accused was employed as group ""D"" staff, A/C and Power, Harbour Telephone Exchange, Chennai-1 and as such, he was a public
servant. In respect of the offence alleged to have been committed by the accused, sanction was accorded to prosecute the accused as per the
Sanction Order Ex.P-1 dated 3.3.1993 by P.W.1, the then Assistant Engineer, A/C and Power, Harbour Telephone Exchange, Madras-1
belonging to the TES Group ""B"" Cadre and claiming that he is the competent authority to remove the accused from service and which acts also
have been mentioned in the Sanction Order Ex.P-1 as well as in the evidence of P.W.1.
It is settled as per the dictum laid down by the Hon''ble Supreme Court in K. Veeraswami Vs. Union of India (UOI) and Others, that the
authority competent to remove a public servant can give Sanction Order for prosecution and as such, it is clear that P.W.1 being the authority to
remove the accused from service, has every right to give Sanction Order for prosecution under Ex.P-1 and accordingly, the finding rendered by
the trial Court that the sanction has been properly accorded by P.W.1 for prosecuting the accused, need not be disturbed.
P.W.5 is the younger brother of the accused and has been working as LDC and P.W.8 has been working as UDC in Madras Telephones,
Commercial Section (South), G.R. Complex, Mount Road, Chennai-35 and it is their evidence that they used to give information to the accused
with regard to providing new telephone connections and the movement of files. It is in evidence that Tmt.Nagalakshmi, who is a widow and cousin
of P.W.2, was sanctioned temporary telephone connection as per application Ex.P-2 dated 6.12.1991 made by her and the said file was actually
dealt with by Jayakumar(P.W.5). 747 new telephone connections were ordered by AGM (South) on 5.8.1992 and Tmt.Nagalakshmi became
eligible for new telephone connection and P.W.8, who was dealing with the file, put up note to regulate the temporary line already available with
Tmt.Nagalakshmi after closing the temporary line and it was finally approved on 27.10.1992 by the Commercial Officer South (III). To that effect,
telex message Ex.P-24 dated 28.10.1992 was transmitted to the officials. But, however, related file was not sent to the Section dealing with new
telephone connections till 9.11.1992 and the accused was informed about all the development by P.Ws.5 and 8 and the accused went to the house
of Tmt.Nagalakshmi on 6.11.1992 at 7.30 p.m. and during which time, her cousin P.W.2 was present and the accused by introducing himself as
an employee of Madras Telephones, demanded Rs. 3,000/- as illegal gratification for providing permanent telephone connection to
Tmt.Nagalakshmi and that he would come to her house on 9.11.1992, during which time he requested her that Rs. 1,500/- is to be paid as
advance and the balance amount of Rs. 1,500/- is to be paid on receipt of allotment letter. Since Tmt.Nagalakshmi was not willing to pay the
bribe, she requested her cousin P.W.2 to help in the matter, who gave the complaint Ex.P-14 on 9.11.1992. Therefore, the trap was conducted
by P.W.4 in the presence of P.W.3 and one G.Sankaran, and as informed, the accused came to the house of Tmt.Nagalakshmi and demanded a
sum of Rs. 1,500/- on 9.11.1992 at 8.05 p.m. from P.W.2 as illegal gratification for obtaining permanent telephone connection and the accused
was caught red handed while demanding and accepting the illegal gratification. P.Ws.2 to 4 have clearly spoken to about the demand and receipt
of Rs. 1,500/- by the accused from P.W.2, Kumaresan, cousin of Tmt.Nagalakshmi at No. 38, Mosque Street, Vadapalani, Chennai-26, viz.,
denomination of Rupees Fifty totally 30 in numbers, in which phenolphthalein powder was applied.
It is in evidence that entire proceedings were video-graphed by the constable Nagarajan, using the departmental video camera and the video
cassette also has been marked as M.O.4 through P.W.4. Further, there have been clinching evidence let in on the side of the prosecution through
P.Ws.2 to 4 about the demand and receipt of Rs. 1,500/- (M.O.1 series) by the accused who was caught red handed while demanding and
accepting the illegal gratification.
As per the report Ex.P-26 dated 29.12.1992, both phenolphthalein powder and Sodium Carbonate were detected in M.Os.2 and 3 solutions,
and as such, it is proved that the accused received the sum of Rs. 1,500/- at the time of occurrence paid by Tmt.Nagalakshmi through her cousin
P.W.2. If money was not demanded by the accused from Tmt.Nagalakshmi for providing permanent telephone connection, there was no necessity
for him to go to the house of Tmt.Nagalakshmi. The mere fact, the accused went to the house of Tmt.Nagalakshmi at 8.05 p.m. on 9.11.1992,
where her cousin P.W.2 was also present, would indicate that the accused went to the house of Tmt.Nagalakshmi for receiving the sum of Rs.
1,500/- by way of advance out of Rs. 3,000/- demanded for providing permanent telephone connection to Tmt.Nagalakshmi as already informed
on the earlier occasion on 6.11.1992. Such demand and receipt has been clearly spoken by P.Ws.2 to 4 and the test conducted as per the report
Ex.P-26 also amply proves the same.
The non-examination of Tmt.Nagalakshmi is not fatal to the case of the prosecution, since the demand and receipt of the bribe amount by the
accused, who was caught red handed, have been clearly spoken to by P.Ws.2 to 4 and the same has been clinchingly proved by the prosecution.
Though it is stated by P.W.8 that telex message (Ex.P-24) was sent to Tmt.Nagalakshmi, there is nothing to show that the telex
message(Ex.P-24) was sent to Tmt.Nagalakshmi. Further, even in the chief-examination and also in the cross-examination, P.W.8 has only stated
that the telex message with regard to providing permanent telephone connection was sent to the officials, viz., to Engineer, Accountant and other
Higher Officials and not to Nagalakshmi and therefore, it cannot be said that Nagalakshmi was also informed accordingly by way of telex message.
The entrustment mahazar Ex.P-15 and seizure mahazar Ex.P-16 also establishes, inasmuch as it is corroborated by P.W.2, who signed in both
the mahazars Exs.P-15 and P-16. Further, as rightly argued by the Special Public Prosecutor for CBI Cases, the non-examination of Nagarajan,
Constable, who has taken videograph on 9.11.1992 at the residence of Nagalakshmi is not seriously challenged by the accused in the cross-
examination of the Trap Officer P.W.4.
Therefore, the trial Court considering all these aspects rightly and finding the accused guilty for the offence u/s 7 and Section 13(1)(d) read
with 13(2) of the Prevention of Corruption Act, convicted the accused and sentenced him as set out above. Such finding, conviction and sentence
does not call for any interference and they are confirmed.
In the result, in view of the discussions made above, this Criminal Appeal is dismissed. The judgment dated 30.12.1997 made in C.C. No.
129 of 1997 on the file of the Principal Special Court for CBI Cases, Chennai, is confirmed. The bail bond executed by the appellant/accused shall
stand cancelled. The Principal Special Judge for CBI Cases, Chennai is required to secure the custody of the accused to undergo the remaining
period of sentence.