State vs M. Mohamed Sharief

R. Mala, J.—This Criminal Appeal is directed against the judgment of acquittal, dated 31.05.2010 passed by the learned Special Judge for CBI Cases, Madurai, in C.C.No. 9 of 2008.

The case of the prosecution is, briefly, stated as follows:

(i) The respondent was working as Assistant in the Passport Office till 03.03.2008. Subsequently, he was working as Upper Division Clerk in the Passport Office, Madurai. He was given the job of verifying the passport applications submitted on Thakkal basis. The complainant P.W.2 is residing at Ilayangudi Village, Sivagangai District. On 27.02.2008, the son of the complainant, P.W.2, by name, Shahul Hameed Hajiyar, in order to get the passport on Thakkal basis, submitted an application bearing No. M.D.U.I.03038708 along with necessary documents. The accused was working in the counter of Thakkal. He rejected the application for passport for want of additional documents for the purpose of residential proof. He told the son of P.W.2 that he would help you, when he approached him in the afternoon privately.

(ii) Further, on the advice of one Kanagasabapathi P.W.4, working in the same Office, the son of P.W.2 submitted his second fresh Takkal application bearing No. MDU03115008 directly to Sundararaman, Acting Passport Officer, P.W.9. The accused, with an ulterior motive, directed the said Sundararaman-P.W.9, to reject the second application also. Thereafter, P.W.2 and his son met the accused during afternoon session on the same day and asked clarification and the accused asked them to meet him on the next day morning at the office with application.

(iii) Accordingly, on 28.03.2008, at about 09.15 hours, P.W.2 and his son met the accused at the corridors of Madurai Passport Office with the second passport application and also necessary documents for processing the application under Takkal scheme. The accused, for the purpose of processing the application for passport under Takkal scheme, demanded a sum of Rs.2,000/- as illegal gratification.

(iv) Therefore, P.W.2 lodged a complaint before the Central Bureau of Investigation, which resulted in registration of a case in RC.13(A)/2008, on 03.03.2008, against the accused and trap proceedings were initiated. On 03.03.2008, the accused was caught red handed, while demanding and accepting the illegal gratification of Rs.2,000/- from P.W.2, at the rear entrance of Passport Office, Madurai. Thus, the accused, by misusing his official position as public servant, obtained illegal gratification of Rs.2,000/- from the complainant P.W2, for the purpose of processing the passport application under Takkal Scheme and, thereby, he committed the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and the Inspector of Police, CBI, Chennai filed a final report.

(v) Before the trial Court, on behalf of the prosecution, P.Ws.1 to 13 were examined and Exs.P.1 to P.35 were marked along with M.Os.1 to 5. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false and filed a written reply along with the Certificate issued by the Higher Secondary School, Ilayangudi, viz., S.S.L.C. Book first page, voters list and also the other documents of Dr.Zakir Husain College, Ilayangudi, to show that the accused is a foot ball player. On behalf of the defence, D.Ws.1 and 2 were examined and no document was marked.

(vi) The learned trial Judge, after considering the oral and documentary evidence, found that the prosecution has failed to prove the guilt of the accused for the offences as stated above and acquitted him from the charges.

Challenging the acquittal of the respondent/accused for the offences as stated above, the appeal has been preferred at the instance of the State.

The learned Special Public Prosecutor for CBI Cases would submit that the Trial Court has acquitted the accused on the ground that due to previous enmity in respect of the election dispute, P.W.2, the de-facto complainant lodged a false complaint against the accused. However, P.W.2, in his evidence, had stated that he do not know the accused prior to the incident and he has submitted passport application under Thakkal scheme for his son on 27.02.2008. On 28.02.2008, the accused demanded a sum of Rs.2,000/- as bribe for processing the passport application under Thakkal scheme. On 03.03.2008, he gave a complaint and trap proceedings have been initiated at 02.00 p.m., and the accused was arrested. Phenolphthalein test has been positive and that factum was not considered by the Trial Court.

He would further submit that even though P.W.9 turned hostile, it will not affect the case of the prosecution. He is neither the attestor of the recovery mahazar nor he is present at the time of trap proceedings.

He would further submit that the Trial Court has acquitted the accused, relying upon the evidence of P.W.10 and P.W.11, stating that both the evidence contradicted with each other in respect of place of trap and also recovery mahazar, but whereas the evidence of other witnesses have clearly proved the trap proceedings. There is no previous enmity and that factum was not considered by the Trial Court. He would further submit that the ingredients of Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 have been proved by the prosecution beyond reasonable doubt. Hence, he prayed for conviction.

Resisting the same, the learned counsel for the accused would submit that the accused is only an Upper Division Clerk in Passport Office at Madurai. He has no authority to issue a passport on Thakkal basis and the Passport Officer alone is the competent authority to issue passport. Furthermore, he has stated that there was a previous enmity in respect of the local body election. P.W.2''s wife and the daughter of the accused wife''s sister were contesting the local body election, wherein P.W.2''s wife lost. P.W.2''s son has submitted passport application under Thakkal scheme, mentioning his Chennai address. The accused has perused the papers and rejected the same for want of additional documents regarding residential proof. P.W.9 has also rejected the application stating that the Passport Officer at Madurai is not having jurisdiction. Then, P.W.8 is the agent and he has approached P.W.4. P.W.4 has misused and placed another application as if the applicant is residing within the jurisdiction of Madurai and at that time, it was the case of the prosecution that the accused has directed P.W.2 to meet him in his office room and demanded illegal gratification. Since there was a previous motive, he gave a false complaint and that factum was rightly considered by the Trial Court.

Further, P.W.2''s evidence has been clearly proved that there is no such demand of bribe and no such occurrence has been taken place at his room. He would further submit that the evidence of P.W.10 and P.W.11 have been correctly evaluated by the Trial Court and there is a discrepancy in respect of the place of trap and also the preparation of recovery mahazar. Therefore, the Trial Court has considered all the aspects in proper perspective and came to the correct conclusion.

He would further submit that P.W.9, in his cross-examination, has categorically stated that the trap laying officer has threatened the accused to receive the amount, and on threat only, he received the amount and then only, recovery has been made. Therefore, all the aspects have been rightly considered by the Trial Court and hence, there is no reason for interfering with the finding of the Trial Court. Hence, he prayed for dismissal.

Considering the rival submissions made by both sides, and on perusal of the typed-set of papers, it is seen that the accused is an Assistant in Passport Office at Madurai and he is a public servant. Sanction has been accorded by P.W.1. The factum of sanction has not been disputed.

The only point to be decided in the appeal is whether the acquittal by the Trial Court is sustainable in law?

It is the case of the appellant that since P.W.9 is turned hostile, it will not affect the case of the prosecution. But, a perusal of case records shows that the prosecution ought to have proved the first demand, second demand, acceptance and also recovery and phenolphthalein test. But, admittedly, phenolphthalein test has been proved to be positive. In order to prove the demand, except the evidence of P.W.2, no other evidence is available. Therefore, whether the evidence of P.W.2 is reliable is the issue to be considered.

P.W.2''s son, by name Shahul Hameed Hajiyar, submitted an application for passport on Thakkal basis. Since he has not given his correct residential proof, P.W.9 has made an endorsement as ''working Chennai. P.1 apply RPO, Chennai''. Subsequently, at the instance of P.W.4 and P.W.8, who is the agent, Thakkal has been over-write as normal and the application was presented for processing. It is the case of the prosecution that the accused has influenced P.W.9 and got the endorsement of rejection of the application. But the accused would submit that there is a previous enmity between him and P.W.2, and hence, a false complaint has been foisted against him. The demand of bribe has not been proved. The acceptance also has not been proved. The evidence of P.W.9 and P.W.10 and P.W.11 have been contradicted with each other and that factum was rightly considered by the Trial Court.

Now, this Court has to decide as to whether there is a previous enmity between the accused and P.W.2.

P.W.2''s wife and the daughter of the accused wife''s sister has contested the local body election, in which P.W.2''s wife has lost and hence, there was an enmity. The Trial Court has considered the evidence of P.W.2, because P.W.2 and the accused are residing in the same village. They were studied together in the same school and they were the members of foot ball team and, therefore, they were known each other. Therefore, it is clear that P.W.2, with an intention to book a case against the accused, has given a false complaint. A careful reading of the entire evidence of P.W.2 would make the position very clear that with a mala fide intention, he deposed the evidence against the accused. Therefore, it is unsafe to rely upon the evidence of P.W.2. Hence, the evidence of P.W.2 is hereby discarded.

P.W.3, the Assistant Manager, in his evidence, had stated that he is the witness for trap proceedings and he had stated that when the accused has proceeded to his office by scooter at 02.00 p.m., he questioned the passport application from P.W.2 and P.W.2 has given the same and after seeing the application, he asked about the amount which he demanded as illegal gratification. P.W.2 handed over the same. But, in his cross-, he has fairly conceded that at the time of trap proceedings, nearly 5 to 10 persons were standing in the place, but none of them has been examined before the Trial Court. Hence, there is a contradiction between the timing of pre-trap proceedings between P.W.11 and P.W.3 and also there is a contradiction between the evidence of P.W.11 and P.W.10. Therefore, it is unsafe to rely upon the evidence of P.W.3. Even P.W.3, in his cross-examination, had stated that after trap proceedings, recovery mahazar has been attested by P.W.9 and P.W.11. But, Ex.P.8 recovery mahazar has not contained the signature of P.W.9. Therefore, considering all the infirmities in the evidence of P.W.3, it is unsafe to rely upon the evidence of P.W.3 to conclude that there is a second demand before acceptance. In such circumstances, I am of the view that the evidence of P.W.2 and P.W.3 are not reliable and there is no evidence to show that before trap proceedings, there is a second demand. Therefore, I am of the view that the second demand has not been proved by the prosecution beyond reasonable doubt.

Now, this Court has to decide whether the prosecution has proved the acceptance. P.W.2 and P.W.3, in their chief-examination, deposed about the acceptance, but, whereas P.W.9 Assistant Passport Officer, who is in- charge of Madurai Branch, has deposed that the amount has not been seized from the accused. In his cross-examination, he had stated that when the Inspector asked the accused as to whether he has received any amount as bribe, the accused had stated that the complainant thrashed the amount into his pocket and the accused threw the amount near the tea stall and at the time of enquiry, one officer has taken the amount and intimated that the amount has been lying near the tea stall. Then, P.W.10 has directed the accused to receive the amount and also directed him to put into his pocket. Even though he refused to receive, on threat only, he received the amount and only thereafter, amount has been recovered, which shows that the acceptance has not been proved by the prosecution beyond reasonable doubt.

As per the dictum of the Apex Court, if the prosecution fails to prove the second demand, the acceptance is not a reason for fascinating conviction. To prove the recovery, prosecution has examined P.W.10 and P.W.11. But the evidence of P.W.9 has been falsified by the evidence of P.W.10 and P.W.11. Furthermore, the evidence of P.W.10 and P.W.11 is contradicted with each other in respect of the place of preparation of recovery mahazar. The genuineness of Ex.P.8 itself is doubtful, because P.Ws.11 and 3 and 9 would submit that at the time of recovery, in the recovery mahazar, P.W.9 has signed the same as an attestor, but whereas, Ex.P.8 has not contained the signature of P.W.9. Moreover, the signature of the accused also was not found place in Ex.P.8. That factum was rightly considered by the Trial Court.

Furthermore, it is pertinent to note that the place of trap is also doubtful. P.W.10 trap laying officer and P.W.11 a witness to the trap proceedings are given contradictory statement in respect of the place of occurrence. Therefore, considering all the infirmities and irregularities in the evidence of P.Ws.2,3,9,10, and 11, the Trial Court has correctly considered the facts of the case and came to the correct conclusion that it is unsafe to convict the accused on the basis of the evidence of P.W.2 alone, who is having inimical towards the accused. In such circumstances, I do not find any infirmity or irregularity in the judgment of acquittal passed by the Trial Court. The order impugned in the appeal does not call for any interference at the hands of this Court. Hence, it is, hereby, confirmed and the appeal deserves dismissal and accordingly, dismissed.