Subbu Singh v. State By Public Prosecutor .

Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High Court setting aside the judgment of acquittal passed by the learned Chief Judicial Magistrate-cum-Special Judge, Erode, Tamil Nadu.

2. The appellant faced trial along with one Rajappan. The appellant faced trial for alleged commission of the offence punishable under Section 7 read with Section 12, Section 13(2) read with Section 13(1)(d) read with Section 12 of the Prevention of Corruption Act, 1988 (in short “the Act”). The trial court directed acquittal of both the accused persons.

3. The High Court upheld the acquittal so far as the co-accused is concerned, but set aside the judgment of acquittal and directed conviction for the appellant for the charged offences. The minimum sentence of six months and fine with default stipulation for the offence punishable under Section 7 of the Act and one year's rigorous imprisonment with fine with default stipulation for the offence under Section 13(2) read with Section 13(1)(d) of the Act were awarded.

4. Prosecution version in a nutshell is as follows:

Subbu Singh (A-1), the appellant was working as Sub-Inspector of Police at Sathiyamangalam Police Station. Rajappan (A-2), is the friend of A-1. There was a land dispute between Renga Naicker (PW 4) and Thippa Naicker (PW 21). Both of them quarrelled with each other on 6-7-1991. Nagarajan (PW 5), relative of PW 4 came to Sathiyamangalam Police Station and complained to A-1 Sub-Inspector of Police orally against PW 21.

5. A-1 directed the Police Constables PW 11 and PW 12 to go the spot to bring PW 21. Accordingly, they went to the scene of occurrence and found that PW 21 was lying down with injuries. The constables took the injured and others to the police station. In the meantime, Selvan (PW 2), brother-in-law of PW 21 followed them to the police station. Since the injured PW 21 was not taken to the hospital, PW 2 requested A-1 to send him to the hospital. As permitted by A-1, the injured was taken in an auto to a private hospital run by Dr. Thangavel (PW 10). After taking an injection from the hospital, PW 21 and others came back to the police station. PW 2 was asked to come back in the evening. Accordingly, PW 2 went to the police station at 5.00 p.m At that time, the police obtained muchalka from both the sides stating that they would settle the matter by approaching the civil court. Then, A-1 directed PW 21 and others to wait outside the police station and act as per the instructions of one A-2 who is the friend of A-1. Within a few minutes, A-2 came and informed PW 2 that A-1 had asked him to get Rs 500 from them. Natarajan (PW 22), son of PW 21 told that he was having only Rs 100. A-2 after getting instruction from A-1 asked them to give Rs 100. PW 22 told A-2 that Rs 100 was required to buy medicine. Then, A-2 told them that he would give Rs 100 from his pocket and handed over the same on behalf of PW 21 at nearby bangle shop where PW 8 was doing business. A-2 directed him to bring Rs 100 and another Rs 400 being the balance to be paid to A-1. Then, they were allowed to go.

6. On 7-7-1991, A-1 visited the land and gave the message that both PWs 2 and 4 should meet him in the evening. PW 2 met A-1 at about 5.00 p.m in the police station. At that time, A-1 asked him whether he had brought the amount and PW 2 told him that the money was not ready. A-1 told him that already the amount of Rs 100 was received through the shop owner and the balance amount of Rs 400 should be paid, or otherwise he would put up a case against PW 21 on the complaint of PW 5. PW 2 told him that he would bring (sic the money) on 12-7-1991. Then PW 2 informed this to PW 21. Since PW 2 did not want to give bribe he gave a complaint, Ext. P-2 to the Inspector of Police, Vigilance (PW 26) on 11-7-1991 at about 4.30 p.m PW 2 was asked to come to the Vigilance Office next day.

7. In the meantime, PW 26 requested assistance from Manokaran (PW 3) and one Jagadeesan, working in the Tamil Nadu Electricity Board. Next day morning, the pre-trap mahazar was prepared by observing the required formalities. The test was demonstrated by applying phenolphthalein powder on the currency notes of Rs 400 handed over by PW 2. Then all of them went to the police station in the early morning of 12-7-1991. Since A-1 was not available, they went to his house which is situated in the police quarters. Then, PWs 2 and 3 alone were asked to go inside. PW 2 gave the balance amount of Rs 400 to A-1, who in turn received it by his left hand. Then, he promised that he would take care of the case against PW 21. Both PWs 2 and 3 came out and gave a signal. Thereafter, PW 26 and his men entered into the house. At that time, A-1 was having MO 1 series currency notes in his left hand. The phenolphthalein test on both the hands was conducted which proved positive.

8. Further investigation was taken up by Vivekanandan (PW 27), another Inspector of Police. After examining the witnesses and obtaining sanction, he filed a charge-sheet against both Accused 1 and 2.

9. During the trial, the prosecution examined PWs 1 to 27, filed Exts. P-1 to P-21 and marked MOs 1 to 6. During the questioning under Section 313 CrPC, A-1 stated that he was innocent and the currency notes were planted under his chair without his knowledge. A-2 stated that a false case was foisted against both A-1 and A-2 at the instance of one Lawrence under whom PW 2 was working. The trial court after considering the evidence on record acquitted both the accused in respect of the above charges.

10. In the appeal before the High Court the stand of the State was that the trial court acquitted the accused overlooking the material evidence without appreciation of evidence on record in the proper perspective and the finding recorded are totally perverse and against the material and evidence. The accused persons supported the judgment of the trial court.

11. The reasonings of the trial court for the acquittal were as follows:

(1) PWs 7 and 8 the shop owners had turned hostile. In Ext. P-7, the credit account book, there is no mention that the second accused had been given the amount of Rs 100 and that the said amount had been given to the first accused. Since the muchalka was entered by both parties in the police station and the same was signed by them on 6-7-1991, there was no necessity for the first accused to ask for the bribe amount through the second accused.

(2) PW 21 alone is the aggrieved person, as the amount was demanded from him only for the purpose of not putting up a case against him. So, PW 2 need not have agreed to pay the bribe amount to A-1 and he need not lodge a complaint before the Vigilance without the knowledge of PW 21. PW 2 must have been instigated by some unknown person.

(3) Instead of lodging a complaint before Erode Vigilance Office which has got jurisdiction over the area, PW 2 had chosen to lodge a complaint before Coimbatore Vigilance. There is no explanation for this.

(4) When PW 2 entered into the house of A-1, he questioned him, “Who are you?” If really, the occurrence had taken place on 6-7-1991 and 7-7-1991 in which PW 2 met A-1 and A-2 on both these occasions, there was no necessity for A-1 to put that question. Therefore, the occurrence that took place on 6-7-1991 and 7-7-1991 as spoken to by PW 2 and PW 21 to PW 23 cannot be true.

(5) No complaint was produced before the trial court to show that PW 4 to PW 6 on the one side and PW 21 and PW 23 on the other side lodged complaint against each other. Therefore, the evidence of PW 2 and PWs 21 to 23 cannot be believed.

(6) The evidence of PW 12, PW 13, PW 15 and PW 16 the Constables attached to Sathiyamangalam Police Station, over the enquiry in regard to the complaint by both parties in the police station, cannot be believed, since there is no entry in the general diary. The evidence of PW 14, another Constable also has to be disbelieved, since the muchalka obtained from both parties was not produced. Moreover, Exts. P-12 and P-13, the trip sheets of the taxi contained the signature of PW 27, Vigilance Inspector and as such they are fabricated documents.

(7) The phenolphthalein test was not conducted properly. The pre-trap test was not properly explained to the witnesses PWs 2 and 3. After the trap, the signature of the first accused had not been obtained on the bottles, MOs 5 and 6. This shows that the test could not have been conducted at the house of A-1.

(8) A-1 received the money by his left hand. When PWs 2 and 3 entered into the house, A-1 kept the money in his left hand only, but the test conducted on both the right and left hands proved positive. There is no explanation as to how the test on the right hand proved positive.

(9) Out of the total amount of Rs 500, according to the prosecution, Rs 100 was paid by A-2 through PWs 7 and 8 who had turned hostile. PW 2 admitted that he never paid Rs 100 to A-2 to be given to A-1. When the receipt of a portion of the demanded amount of Rs 500 i.e 100 had not been proved, the trap incident for the receipt of the balance amount of bribe could not be believed.

(10) Since the evidence available on record through PWs 2, 3 and 26 would not prove that the accused has committed the offence under Section 7, presumption under Section 20 cannot be drawn.

The High Court found that the conclusions are erroneous and on misreading of the evidence. Accordingly the judgment of the trial court was set aside.

12. Learned counsel for the appellant submitted that considering the limited scope for interference with the judgment of acquittal the High Court ought not to have interfered in the matter as the view taken by the trial court was a possible view and therefore the High Court should not have interfered. The following submissions inter alia were made in support of the appeal:

1. Foundation for the demand has been disbelieved;

2. Demand by A-2 was disbelieved and as a part of the prosecution version regarding demand has been disbelieved so the whole thing should have been discarded.

13. PW 2 should have gone to Erode where there was a Vigilance Officer. The evidence of PW 2 is unreliable and there is no corroboration to his evidence. It is unnatural that demand would be made from a person who was injured after settlement of the dispute. The High Court erroneously held that PW 2 called the witnesses which is not correct. PW 21 did not make any complaint though he is supposed to be the affected person. There is no signature as alleged. It is pointed out that PW 2 is not directly involved, he is the brother-in-law of PW 21.

14. Learned counsel for the respondent State on the other hand supported the judgment.

15. It needs to be pointed out that the recovery was not disputed. The accused stated that with oblique purpose he was trapped. The money was kept in the pocket of the accused.

16. The case of prosecution with reference to the enquiry over the incident on 6-7-1991 is clearly spoken to by PW 2, PW 21, PW 22, son of PW 21 and PW 23 another relative. Though the other party, namely, PWs 4 and 5 turned hostile, they would admit that the incident took place on 6-7-1991 and that they were called to the police station by A-1, who after enquiry directed them to settle the dispute and warned them. That apart, PW 13, PW 14, PW 15 and PW 16, the Constables attached to the said police station, would also specifically state that the enquiry was conducted on the basis of the oral complaint of PW 5 against PW 21 by A-1 and muchalka was obtained from them after giving warning on his instruction. Under these circumstances, there is no reason to reject the evidence of PW 2, PW 13 to PW 16 and PW 21 to PW 23. When these acceptable materials are available through these witnesses, their depositions cannot be rejected merely on the ground that the complaints given by PW 4 and PW 21 were not marked and muchalka obtained from both parties were not produced.

17. As a matter of fact, Arumugham (PW 25), the Inspector of Police, Sathiyamangalam under whom A-1 Sub-Inspector of Police was working specifically stated that the complaints of PW 4 and PW 21 were not registered in the police station. This shows that even without receipt of the written complaint and registration of the same, a mock enquiry was conducted by A-1 and on the pretext of enquiry, a muchalka was obtained from both the parties. In such a situation, it cannot be contended that the entire enquiry was over on 6-7-1991 itself after obtaining muchalka.

18. The fact that A-1 went to the field on 7-7-1991 at about 11.00 a.m and directed PW 2 to come and meet him in the police station in the evening itself would show that the parties were made to think that he had not finished the enquiry. Only on the said direction, PW 2 went and met A-1 in the police station on 7-7-1991 evening. In that context, A-1 demanded money from PW 2 and threatened that if he failed to bring the balance amount, namely, Rs 400, he would initiate action against PW 21 on the complaint given by PW 5. Only thereafter PW 2 undertook to pay that amount on Friday at the police station.

19. This is a case where PW 21 was attacked by PWs 4 and 5, as a result of which PW 21 sustained injuries and fell down on the field and became unconscious. Instead of taking action against the persons concerned, who attacked PW 21, A-1 detained PW 21 from the morning till evening. Though A-1 was requested by PW 21 to send him to the Government Hospital, A-1 did not choose to send him to the Government Hospital; on the other hand, he was beaten by A-1 himself for having requested to send him to the Government Hospital. This shows that A-1 did not allow PW 2 and PW 21 to get the medical records regarding the injuries sustained by PW 21. He was sent only to private doctor PW 10. Though PW 10 turned hostile, Ext. P-8 marked through him would show, in the light of the evidence of PW 2 and PW 21, that PW 10 gave prescription to PW 21 for the injuries sustained by him.

20. So far as the stand that money was kept for the purpose of falsely implicating A-1, the same is without substance. The accused was a police officer who knew the consequences of the bribe. He had not explained as to why he took up the money in his examination under Section 313 of the Code. The accused stated that PW 2 took the money because the Inspector asked him to do so. The normal conduct would have been to take action against PW 2 for offering bribe. Additionally, if the matter was closed there was no need for going to the field.

21. It is to be noted that the appellant was alone in his room for sometime holding the currency notes before PW 26 and other officer entered into the house. Therefore, as rightly observed by the High Court, the possibility of the appellant counting the money with the help of right hand cannot be ruled out. Once it is proved by the prosecution that the money was demanded as bribe and the same was received from PW 2, Section 20 of the Act comes into play. Once there is a presumption as contemplated under Section 20, it is for the accused to establish that the amount was not received as bribe.

22. Since minimum sentence has been imposed there is no scope for interference with the same. Above being the position there is no merit in this appeal which is dismissed. The appellant shall surrender to custody forthwith to serve the remainder of the sentence, if any.