S.K. Natesan and C. Manickam vs State

M. Chockalingam, J.—The accused Nos. 1 and 2/appellants herein, who stood charged, tried and found guilty u/s 384 r/w 34 IPC, 7 and

13(2) r/w 13(1)(d) of PC Act and sentenced to undergo one year RI with a fine of Rs.500/- in default one month RI each u/s 384 r/w 34 IPC, six

months RI with a fine of Rs.250/- in default two weeks RI each u/s 7 of PC Act and one year RI along with fine of Rs.250/- in default two weeks

RI each u/s 13(2) r/w 13(1)(d) of PC Act have brought forth this appeal.

The short facts necessary for the disposal of this appeal can be stated as follows:

a) A1 and A2 were working as Office Assistants in the office of Assistant Commissioner (Enforcement), Commercial Tax, Salem during the

relevant period. P.W.1 Nazer Sherif and his partners were running their business in the name ""Ragam Readymades"" at Cherry Road, Salem. The

same was also registered with Commercial Tax office as found under Ex.P.5 and Ex.P.6 certificates.

b) On 10.11.1989 at about 1.30 p.m., both the accused came to the shop of P.W.1 and demanded Rs.100/- as Deepavali inam. P.W.1

expressed his inability and both the accused threatened him with dire consequences. Therefore, P.W.1 agreed to pay the amount and noted in the

note book in page No. 25 maintained by A1 and A2. The same was marked as Ex.P.1. Again on 23.11.1989 at about 4.00 p.m., when P.w.1

and his father P.W.5 Ahamed Sherif were in the shop, both the accused came and demanded money as deepavali inam. P.W.1 replied that his

partners are not agreed to pay Rs.100/- and refused to pay. Both the accused threatened P.W.1 that a raid would follow if P.W.1 did not make

the payment and that they would come again on 27.11.1989 at about 6.00 p.m. for getting the money.

c) P.W.1 was not willing to pay the money. He lodged a complaint Ex.P.2 to P.W.10 Ashokan Inspector of Police, DVAC, Salem on

27.11.1989 at about 3.00 p.m. P.W.10 prepared printed FIR Ex.P.22 and issued a copy to P.W.1 and the signature of PW1 was marked as

Ex.P.3 in Ex.P.22. P.W.10 arranged official witness P.W.2 and one Narasimmalu and introduced to P.W.1 for trapping the accused. P.W.10

explained about the trap to P.W.1, P.W.2 and one Narasimmalu and received money M.O.1 and M.O.2 series and demonstrated phenolphthalein

test to P.Ws.1 and 2 and other official witnesses and prepared Ex.P.4 mahazar and obtained signature from P.Ws.1 and 2, Narasimmalu. P.W.10

himself also signed the same. P.W1 and P.W.2 and the investigating officer P.W.10''s team went to Cherry Road, where P.W.1 and P.W.2 alone

gone to P.Ws.1''s shop and seated there at about 6.45 p.m. A1 and A2 came to the shop of P.W.1 and seated in front of cash counter and both

the accused made a demand.A2 told that they had to come on so many times for getting Rs.100/-. P.W.1 took MOs.1 and 2 series money

Rs.100/- from his pocket and gave it to A.1. A1 received the money and put in into the rexene bag MO8 carried by A1 and asked P.W.1 about

P.w.2. P.W.1 told A1 that he is one of the partners.

d) At about 6.50 p.m. P.W.1 gave the pre-arranged signal to P.W.10 by folding sleeves of his shirt by standing from the seat. P.W.10 came to the

shop and introduced himself to A1 and A2 and prepared two bottles of sodium carbonate solution MOs.6 and 7 and asked A1 to dip his hands

one by one in the solution and the same phenolphthalein test proved positive. P.W.10 asked A1 about M.Os.1 and 2 series. A1 produced

M.Os.1 and 2 series from MO8. P.W.10 prepared a mahazar under Ex.P.9 and the same was signed by P.W.2, P.W.10, one Narasimmalu and

another Inspector of Police, namely, Panneer Selvam. A copy of Ex.P.9 was served to A1 and A2. P.W.10 prepared Ex.P.11 observation

mahazar. On requisition made by P.W.10, P.W.9 Assistant Commissioner, Commercial Taxes, Salem perused the records and issued Ex.P.21

sanction order on 29.11.1990. P.W.10 made a request to the Court for sending MO3 to MO9 for chemical analysis under Ex.P.23. Accordingly,

the same was sent for chemical analysis. Ex.P.25 chemical report was received by the Court. P.W.10 examined all the witnesses and recorded

their statements on various dates. On completion of the investigation, a charge sheet was filed against A1 and A2 by the investigating officer under

Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.

In order to prove the charges levelled against both the accused, the prosecution examined 10 witnesses and marked 25 exhibits and 9 Mos. On

completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 of Cr.P.C. as to the incriminating circumstances

found in the evidence on the prosecution witnesses, which they flatly denied as false. No defence witnesses were examined. No documents or

M.Os. were marked on the side of the defence. On consideration of the rival submissions made and scrutiny of the materials available the lower

court has found both the accused guilty and sentenced them to undergo imprisonment as referred to above. Aggrieved appellants have brought

forth this appeal.

The learned Senior Counsel appearing for the appellants has raised the following points for consideration by this Court.

The prosecution has relied on the evidence of P.W.5 for the alleged demand made by the accused on 10.11.1989 and 23.11.1989. It is highly

doubtful as to whether P.W.1 was present at the time of the alleged incident or he has got anything to do with the business carried on by the

parties. No material was placed to prove that he has got anything to do with the alleged garment business. According to the prosecution, P.W.7

was also present when the demand was made on 27.11.1989. According to P.W.7, he came to Salem for the purpose of getting employment.

This would indicate that he has nothing to do with the said business and the evidence adduced by the prosecution was false and highly improbable.

Though demands were made on 10.11.1989 and 23.11.1989, the belated complaint was made on 27.11.1989. According to P.W.1, on

10.11.1989, he expressed his inability and on 23.11.1989, the partners were not agreeable to pay the same. It is not the case of P.W.1 that he has

got any suggestion from the partners to give such an amount. The alleged mahazar relied on by the prosecution as to the seizure has got to be

rejected for the simple reason that P.W.2 has admitted that the mahazar was prepared in the inner room measuring 10'' x 4''. According to the

prosecution witnesses, P.Ws.1 and 2, the officials and all other witnesses were present at that time, and thus, this would be indicative of the fact

that the mahazar could not have been prepared on the spot as put forth by the prosecution. Even according to the prosecution, the amount was

received only by A-1, in which A-2 has nothing to do. Added further the learned Senior Counsel that the lower court has found the accused guilty

u/s 384 IPC also. Even assuming that the prosecution has proved its case, there is nothing to warrant either charge or punishment u/s 384 IPC. In

view of the reasons stated above, the judgment of the lower court has got to be set aside.

Opposing all the contentions raised by the appellants'' side, the learned Government Advocate (Criminal side) would represent that that

prosecution has placed necessary evidence before the lower court through P.Ws.1,5 and 7 to prove that both the accused made a demand on

10.11.1989, 23.11.1989 and 27.11.1989. The lower court has thoroughly analysed their evidence. It cannot be disputed that P.W.1 was one of

the partners, to whom the demand was made. P.W.5, who is the father of P.W.1, was also present at that time. On 27.11.1989, P.W.7 was also

present and following the demand, a complaint was given by P.W.1 and the same was registered. A trap was arranged and the amount was also

received by the accused, which was seized immediately. A test has been conducted and it was proved positive, and hence, the prosecution has

proved its case by adducing necessary evidence. Hence, the judgment of the lower court has got to be affirmed.

On a careful appraisement of the materials available and consideration of the rival submissions made, this Court has to necessarily disagree with

the plea of the appellants for acquittal.

In the instant case, P.W.1 was one of the partners of the business being run in the name ""Ragam Readymades"" and the same was proved under

Ex.P.5 and Ex.P.6 certificates. P.W.5 is the father of P.W.1. According to the prosecution witnesses, both the accused came there on 10.11.1989

and 23.11.1989 and made a demand. On both the occasions, nothing was paid to the accused. On 23.11.1989, A-1 and A-2 threatened P.W.1

that a raid would follow if P.W.1 did not make the payment. All the above facts have been clearly spoken to by P.Ws.1 and 5. A complaint was

lodged by P.W.1 and the case came to be registered by P.W.10 Inspector of Police, DVAC, who arranged for a trap. On 27.11.1989 evening,

P.W.1 and P.W.2 were present in the shop. Both the accused came to the shop on 27.11.1989 evening and made a demand. Following the

demand, P.W.1 handed over Rs.100/-, which was the trap money, to A-1 and immediately he gave signal to P.W.10. P.W.10 came to the shop

and seized the amount from A-1. A test was conducted and proved positive. On requisition by P.W.10, the M.Os. were sent for chemical

Analysis and the same was also proved positive. A report was also filed in that regard. In view of the sufficient evidence, the lower court was

perfectly correct in finding that the demand and the seizure of money according to custom''s practice, were proved, and hence, the contentions put

forth by the appellants'' side do not carry any merit. Hence, the lower court was perfectly correct in finding both the accused guilty under Sections

7 and 13(2) r/w 13(1)(d) of PC Act. But, as rightly pointed out by the learned Senior Counsel appearing for the appellants, there is nothing to

warrant either to charge or punish them u/s 384 r/w 34 IPC, and hence, the conviction and sentence imposed by the lower court on the accused

Nos. 1 and 2 u/s 384 r/w 34 IPC have got to be set aside.

Coming to the question of punishment, the lower court has taken a lenient view and given minimum punishment u/s 7 and 13(2) r/w 13(1)(d) of

P.C.Act to both the accused and the same does not require any interference. Hence, the conviction and sentence imposed by the lower court on

the accused Nos. 1 and 2 u/s 7 and 13(2) r/w 13(1)(d) of P.C. Act are confirmed, while the conviction and sentence imposed by the lower court

on both the accused u/s 384 r/w 34 IPC are alone set aside. With the above modification, this criminal appeal is partly allowed. The Sessions

Judge shall take steps to commit the accused Nos. 1 and 2/the appellants herein to prison, if they are on bail, to undergo the remaining period of

sentence. The fine amounts, if any paid u/s 384 r/w 34 IPC, shall be refunded to the accused Nos. 1 and 2.