AI Structured Summary
Not yet generated for this judgment
Judgment
S. Palanivelu, J.—This Criminal Appeal has been filed against the judgment dated 04.06.2004 to set aside the order of acquittal and convict the accused as charged for in Spl. Case No. 1/1996 on the file of the learned Special Judge/Chief Judicial Magistrate, Vellore. The respondent is the sole accused in Spl. Case No. 1 of 1996 on the file of the learned Special Judge/Chief Judicial Magistrate, Vellore. The learned Judge has acquitted the accused u/s. 248(1) Cr.P.C. since he is not found guilty u/s. 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. Challenging the said acquittal, the appellant is before this Court with this appeal.
The case of the prosecution in brief is as follows:--
The accused was working as Assistant Educational Officer, Timiri region under whose jurisdiction Chennasamuthiram Panchayat Union Middle School comes under and the complainant Rajagopal was working as Physical Education Teacher in that School. He submitted his application on 08.01.1994 for PF loan of Rs. 11000/- and the accused being the Asst. Education Officer was the authority empowerd to sanction the loan. As there was delay in granting sanction by the accused, the complainant Rajagopal approached the accused on 01.02.1994 at about 2 p.m. and enquired him about the sanction of his loan application. The accused demanded Rs. 100/- for passing sanction order. As the accused was stubborn in his demand, the complainant had no other option but to agree. The accused instructed the complainant to meet him on 02.02.1994 in his office with the money. Even though the complainant agreed to give the money, he was not willing to pay the money.
The complainant went to the office of Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore on 02.02.1994 at 9.45 a.m., and preferred a complaint about the above demand of illegal gratification made by the accused. Exhibit P.2 is the complaint. Based on the same, Inspector Vijayakumar, PW13, recorded statement from the complainant and registered a case in Crime No. 1/1994 u/s 7 of the Prevention of Corruption Act. Exhibit P. 12 is the F.I.R.
Thereafter, he requested for two official witnesses for conducting trap. P.W.2 and another witness by name Umamaheswaran at the request of P.W.13 turned up at his office. P.W.2 was then working as an Agricultural Officer at Vellore Thorappadi and Umamaheswaran was then working as Junior Engineer at TNEB, Sankaranpalayam. At 11.30 a.m., both of them appeared before P.W.14. P.W.13 informed P.W.2 and the other witness about the contents of the complaint and the grievance of P.W.1. Then P.W.1 handed over two notes of Rs. 50/- denomination to P.W.13. The witness-Annadurai counted the same. Then Phenolphthalein test was conducted to the hands of witness-Umamaheswaran by way of demonstration. Then P.W. 13 requested one Head Constable by name Adhiyaman to smear the phenolphthalein powder on the above currency notes. Then he handed over the said currency notes to P.W.1 for which, a Mahazar was prepared in the presence of witnesses. Then P.W.13 instructed P.W.1 to go over to the office of the accused and to give the said currency notes to the accused, if he demanded. He instructed P.W.2 to accompany him. P.W.13 along with the other police officials went to the office of the accused in a car. P.Ws.1 and 3 alone went to the office of the accused and they were told by Head Clerk one Sivaprakasam that the accused was on camp and that the accused has informed that registers and other bills should be brought to him when he arrive at Arcot Bus stand opposite to Khadi Craft and that any person intending to meet him also should be sent there. After getting this information, the complainant informed the same to PW13 and after this, it was decided to go to Arcot. At 3.30 p.m., they started from Thimiri and arrived at Arcot bus stand at 5 p.m. PWs.1 and 2 were waiting in front of the Khadi Kraft for the arrival of the accused. Others hide themselves. The complainant went near the accused. The accused asked the complainant as to what for he came there. The complainant replied that he came there in connection with GPF loan and to this, the accused asked whether he had brought Rs. 100/- as demanded already. The complainant gave two fifty rupees note applied with phenolphthalein powder of the accused. The accused got the notes by his right hand. The witness PW2, Annadurai who was standing nearby witnessed this. After this, the complainant made a signal to the Inspector who immediately came there. P.W. 1 identified the accused.
P.W. 13 conducted Phenolphthalein test at the left hand fingers of the accused. It proved negative. Then he conducted Phenolphthalein test at the right hand fingers of the accused, the solution turned into light red. He filled the said sodium Carbonate solution into two bottles (M.Os.2 and 3). The solution in which the shirt pocked dipped was number as M.O.4. In the labels of the bottles, the signatures of the witnesses Annadurai and Umamaheswaran were obtained. PW13 also signed on them. Then he seized the tainted currency notes, three bottles containing solutions and shift of the accused under cover of mahazar. Thereafter, PW13 made a search at the residence of the accused on the same day between 1.30 a.m. to 2.30 a.m. but nothing incriminating could be recovered.. Two witnesses and the accused signed in the search list. Then he brought the accused and other materials to the police station. Then he handed over the investigation to P.W. 14 the Then Inspector of Police, V&AC.
On 03.02.1994, P.W.14 took up the case for investigation. He sent the samples of sodium carbonate and phenolphthalein powders, 4 bottles containing sodium carbonate solutions, the white shirt belonging to the accused and two fifty rupee notes to the Director, Forensic Science Lab, Chennai through Court. He examined the witnesses relevant for the case and recorded their statements. He obtained sanction for prosecution from the Director of Elementary Education, Chennai. After completing the investigation, he filed charge sheet against the accused under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act. As many as 14 witnesses were examined on the side of the prosecution. When the accused was questioned about the incriminating circumstances found against him in the evidence of the prosecution witnesses, he denied them. No witness have been examined on his side.
After analysing the evidence and materials on record, the learned Special Judge/Chief Judicial Magistrate, Vellore acquitted the accused of the charges framed against him. Challenging the judgment of acquittal, the appellant is before this Court.
The point for consideration which has arisen in this case is "Whether the prosecution has established charge against the accused beyond all reasonable doubt?
Point:--
PW1 was working as Physical Education Teacher in Chennasamuthiram Panchayat Union Middle School, Timiri. He gave an application on 05.01.1994 to the Asst. Educational Officer who is the accused herein, requesting to sanction loan from his GPF, through the School Head Master. The School Head Master has forwarded the application to the accused office on 07.01.1994. Since there was a delay of one month in sanctioning the loan, PW1 approached the accused office on 01.02.1994 at around 2.00 p.m. and the accused demanded a sum of Rs. 100/- from him for sanctioning the loan which sum PW1 was not inclined to pay to the accused. Hence, he lodged a complaint. As per the procedures, trap was organised and the accused was caught hold by the Vigilance & Anti-Corruption Authorities, after he received the bribe amount.
In the opinion of the trial court, receipt of the amount was established but the demand was not established. Only if the demand was established, then the offence would complete so as to call for passing sentence on the accused.
The learned Additional Public Prosecutor would submit that ample evidence are available to show that there was demand on the part of the accused, as stated by the prosecution witnesses and that when the cumulative effect of the oral evidence is taken into consideration, it can be seen that the demand also has been proved and hence the accused is punishable under the provision mentioned in the charges.
The learned counsel Mr. V. Karthik appearing for the respondent/accused would highlight various points favourable to the accused available in the evidence of the prosecution witnesses and would submit that the presumption u/s 20 of the Prevention of Corruption Act is rebuttable and even though the receipt of amount was proved, there is no adequate material or evidence to hold that the presumption but the same has been rebuttable by the oral evidence of the witnesses. It is also his contention that PW7 in his cross examination has stated that on 01.02.1994 and 02.02.1994, the accused was on camp, that he was not treated as hostile witnesses by the prosecution and his evidence in the cross examination that the accused was not available in his office on 01.02.1994 has become the true version and this would show that the accused was not at all in his office, as spoken by PW1.
Certain circumstances have been admitted by PW1 which would show that there are sufficient grounds for him to develop grudge against the accused. It is submitted in his cross examination, that as per the recommendation of Asst. Educational Officer alone, increment for every year would be sanctioned, but from 1990, for about three years, no increment was sanctioned, that the accused has not recommended for his increment, that right from 1990, he has been giving petitions to the accused to pass orders for his selection grade but he did not recommend to the District Educational Officer, that he also did not send his Service Register to District Educational Officer and further he deducted Rs. 823/- which was allegedly withdrawn by him in excess.
The Trial Judge has taken note of the above said points and observed that that there are sufficient reasons for PW1 to develop motive against the accused. As far as the receipt of money by accused is concerned, it is stated by him that during relevant period, a conference of Chief Educational Officers was held for which the Asst. Educational Officers were collecting donations from the teachers and in this process, he also received Rs. 100/- from PW1. PW6 is the Junior Assistant working in Timiri Asst. Educational Officer''s office. He says in his cross examination that in the end of 1993 and 1994, a conference for Chief Educational Officers was held in Elagiri for which donations were collected from teachers. It is also forfeited by PW7 in his cross examination that during relevant time, conferences were convened in Elagiri for which donations were collected. However, he does not know whether PW1 paid Rs. 100/- as donation or bribe. The above said evidence from PWs.6 and 7 would indicate that during relevant point of time, the conferences of Chief Educational Officers were held in Elagiri for which donations were collected from the teachers.
The version of PW7 that the accused was on camp on 01.02.1994 and 02.02.1994 remains as a true evidence since it is not controverted by prosecution. PW7 also has stated in his chief examination in detail that on 02.02.1994 that PW1, at around 3.30 p.m. left his office and enquired him about the sanction of GPF loan for which he asked him whether he can meet the accused. PW7 replied that the accused did not come to the office on that day and that the accused came to the office after 7.00 or 7.15 p.m. on that day. While this part of evidence is subject to careful scrutiny, it comes to light that on 01.02.1994 and 02.02.1994, the accused was not in the office and he was on camp and it is doubtful whether PW1 would have met him on 01.02.1994 at 2 p.m. In this context, it has to be necessarily observed that the demand as projected by the prosecution remains unproved.
It is incumbent upon the investigating officer to record the statement of the accused immediately after the trap, as per Rule 47 of DVAC Manual which reads as follows:
Questioning of Accused Officer
(1) Questioning of the Accused Officer and recovery of the bribe money should be after the phenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer''s statement, if any. In this event, the provisions of Section 27 of the Indian Evidence Act would be available to the prosecution.
(2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary u/s 162 of the Code of Criminal Procedure, 1973. If there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No. 33979/VAC-4/76, dated 10th December, 1976]
The failure on the part of the Trap Laying Officer to record statement from the accused immediately after the arrest would vitiate the entire proceedings.
There is no evidence on the part of the investigating officer whether he recorded such statement from the accused immediately after the trap. In the absence of such statement, it has to be necessarily observed that the benefit of doubt has arisen to the accused.
As far as the facts of this case is concerned, even though receipt of the amount was proved by the prosecution, demand for bribe on the part of the accused remains unproved and hence there is no valid ground made out for disturbing the conclusion of acquittal recorded by the trial court. The findings of acquittal can be interfered only when the Appellate Court holds perversity in the findings recorded by the trial court. But, in this case, this court could not find any perverse findings in the judgment of the trial court.
In the above said circumstances, the judgment of acquittal passed by the trial court deserves to be confirmed and it is accordingly confirmed. This point is answered in negative. In fine, the criminal appeal is dismissed confirming the judgment of acquittal passed by the court below.