BAIL SLIPCA No's 989/99 1010/99 and 1045/99 v. State rep byThe Inspector of Police,Vigilence and Anti Corruption,Salem

For Respondent : Mr. V.R.Balasubramanian, APP, (in above three appeals) COMMON JUDGMENTThe short facts of the prosecution case relevant for decidingthese appeals are as follows:-There were originally 5 accused in S.C.C.No.206 of 1986. Thecharge against A1-Abdul Raheem was quashed by this Court as perits order in Crl.M.P.No.12604/86 dated 7.12.1990. A5-Veeraraghavan expired, hence charge abated against him. Theremaining A2, A3, A4 were arrayed as A1, A2 & A3. A1-Thangaveluis a public servant as Public Works Supervisor in Mettur TownshipCommittee, Mettur, between 8.10.1979 to 31.8.1980. A2-Venkatachalam is a bus conductor turned contractor. A3-Ramasamyis the store keeper of the Mettur Township Committee during therelevant point of time. According to the prosecution, between8.10.1979 to 31.8.1980, A1 to A3 have conspired together inpurchasing alum, (gofhuk;) for cleaning drinking water supply tothe public by the Mettur Township. A1 has called for tender forthe supply of 15 tones of alum to the Mettur Township Committeethrough A2, who had supplied only 8 tones of alum instead of 15tones. But A1 and A3 have made false entries in the recordsmaintained by the Mettur Township Committee. Co-accused P.W.20-Santhanam, who was the electrician of the Mettur Township hasturned as approver in this case. Hence, the accused have beencharged under Section 477(A), 120(B) & 420 IPC and under Section 5(2) & 5(1)(d) of Prevention of Corruption Act r/w 109 IPC.2. The case was taken on file by the Special Judge and Firstadditional District Judge-cum-Chief Judicial Magistrate, Selam andon appearance of the accused on summons, copies under Section 207of Cr.P.C., were furnished to the accused and when charges wereframed and questioned the accused pleaded not guilty. 3. Before the trial Court P.W.1 to P.W.27 were examined andEx.P.1 to Ex.P.122 were marked. 4. P.W.1 is the complainant in this case. He is a socialworker. He was in DMK political party previously and subsequentlyin the year 1980 he was in ADMK political party. According tohim, he knows both A1 and A2. A1 was working as a Junior Engineerand A2 was working as a conductor in MKS but service. On 3.8.1980at about 11.15 am he saw both A1 and A2 standing infront of theIndian bank near SLK lodge, Mettur, and shouting at each other and https://hcservices.ecourts.gov.in/hcservices/ since both A1 and A2 were known to him, P.W.1 intervened andpacified both of them. After A1 left with P.W.6.Pandurangan, heenquired A2 with a curiosity to know the cause for their fight.At that time he came to know that A2 was not working as conductorbut was doing contract business in the name of VenkateswaraEnterprises and that on 1.7.1980 on the basis of the tenderreceived from Mettur Township for the supy of 15 tones of alum atthe rate of Rs.1,950/- per tone and on an order to that effect waspassed by then Administrative Officer of the township viz. AbdulRahim (discharged accused) and in this regard when he met A1,Junior Engineer, and discussed with Abdul Rahim (deceased) andAbdul Rahim instructed him to tell only 8 tones of alum and not todeliver 15 tones as per the tender agreement and the value ofremaining 7 tones alum shall be shared between A1 and deceasedaccused Abdul Rahim and the value of the balance of two tonesshall be given to A2-Venkatachalam towards his share and inpursuance of the said agreement on 27.7.1980 A1 & A2 went toMadras in a bus and stayed in Surath lode at GovindapanayakanStreet, Chennai and both A1 & A2 approached M/s.M.M.Kicha and Co.,in the same street and requested to supply 8 tones of aloum at therate of Rs.128/- per bag of 100 Kg 80 bags, but they should givebill at the rate of Rs.150 per bag and took delivery of 80 bags ofalum after paying Rs.10,240/- as per bill NO.897 at the rate ofRs.150/- per bag and out of the sale proceeds A1 had takenRs.1,600 towards his share from M/S.M.M.Kicha and C., and left forMettur and on 28.7.1980 A2 had loaded 80 bags of alum in a lorrybelonging to M.K.S. Service for transporting the same to Metturand charged Rs.720/- as per the receipt No.044525 and reachedMettur on 29.7.1980 at about 12.00 noon and has also informed A1that 15 tones of alum were transported to Mettur and 80 backscontaining the alum were stored in the godown at Mettur and acheque for Rs.31,707/- was issued by Abdul Rahim AdministrativeOfficer of the Mettur Township on 2.8.1980 at 10.30 am in favourof A2. After receiving the cheque when A2 proceeded to Indian Bankin order to deposit the same in his account and A1 also followedhim and quarrel with him. In this regard P.W.1 has obtained astatement from A2 and forwarded the same to the then ChiefMinister on 20.8.1980 through MLA Mr.K.P.Nachimuthu along with hisletter Ex.P.2. Ex.P.1 is the complaint preferred by P.W.1.According to P.W.1 along with Ex.P.1-complaint he has forwardedthe statement of A2 to the Chief Minister. 5. P.W.2 is the then cashier of Indian Bank,Govindapannayakan Branch, during 1980 to 1982. According to hi,on 28.7.1980 Aw came to their bank in order to take demand draftin the name of M/s.M.M.Kicha & Co, Chennai, for a sum ofRs.12,000/-. Ex.P.3 is the application for the issuance of demanddraft. According to him, M/s.M.M.Kicha and Co., was also havingan account in their bank. On 28.7.1980 under Ex.P.4-cheque a some https://hcservices.ecourts.gov.in/hcservices/ of Rs.1,360/- was dispersed in favour of A2. 6. P.W.3 is the owner of Sampath and Co., dealing in hardwarebusiness. According to him, the Investigation Officer in thiscase had examined him by showing Ex.P.5 to Ex.P.7, but he wouldinform the Investigation Officer that Ex.P.5 to Ex.P.7 were notsigned by him and the signature in those documents do not belongto him. 7. P.W.4 is a partner in M.K.S & Brothers Transport Companyand the lorry bearing Registration NO. MRL 3686 belongs to hiscompany and that A2 was working as a conductor in their company inthe year 1980 and subsequently he had resigned his job and in themonth of July 1980 A1 approached him for transporting 80 bags ofalum from chennai to Mettur in his lorry and accordingly he alsohired his lorry bearing registration No.3686 to A2 and hiredcharge were paid by him. Ex.P.8 is the GC note (Goods ConsignmentNote) and that the lorry hired charge of Rs.720/- was paid atChennai by A2. 8. P.W.5 is an Assistant Administrative Engineer in theTamilnadu Water and Drainage Board from 4.1.1977 to 5.7.1980.Ex.P.9 is the file relating to Mettur Township file No.10454/e2/79and through the said file on 15.8.1980 steps were taken toprocure 15 tones of alum for Mettur Township through tender. Onlyon the recommendation of A1-Thangavelu and P.W.20-Santhanam(electrician of the township) tenders were called for throughpublication in a vernacular daily on 18.10.1979. Since there wasnot response, once again on 23.11.1979 again an similarpublication was made calling for tenders in the same vernaculardaily and that he has made an endorsement at page 19 in the fileEx.P.9 that a similar publication can be made in the Hindu Dailyand on 29.1.1980 four price list were called for and since no onehas comeforward to make deposit, the above said four price listwere cancelled. For the forth time as per the entries at page 62in Ex.P.9 tender was called for through Tamil Daily dated31.3.1980 and on 31.3.1980 the concerned assistant in the sectiongave two price list one belongs to Postal Chemical Limited andanother belongs to Venkateswara Enterprises and he (P.w.5) hasinitialed in both price list and gave to the section. The pricelist furnished by Venkateswara Enterprises was not available inthe file but the price list filed by the Postal Chemical Limitedalone was available and the price list in which he has initialedis not available in the file, but the price list furnished byVenkateswara Enterprises without his signature is available atpage 89 of Ex.P.9 and that he was examined by the Vigilance andAnte Corruption Inspector in connection with Ex.P.9.9. P./w.6 is he former Works Inspector of Mettur township https://hcservices.ecourts.gov.in/hcservices/ Committee and at that time A1-Thangavelu was working as a JuniorEngineer of Mettur Township under whom he (P.w.6) was working. Healso know A2-Vengadachalam as a conductor of M.K.S. Bus and hehad seen A2 frequently visiting A1 and both A1 & A2 were incordial terms. On 2.8.1980 at about 11.30 am he went to IndianBank along with A1 and at that time he asked him (P.W.6) to verifywhether A2 had encashed the cheque and accordingly he verifiedwith A2 whether he had encashed the cheque but A1 had replied inthe negative and accordingly he had passed on the said informationto A1, which resulted in a scuffle between A1 & A2. Immediatelyhe returned to his office. 10. P.W.7 is a cleaner in the Mettur Township Water SchemeCleaning office, wherein A1 was working has a JE and A2 wasworking as a conductor in MKS Bus. A3 & A4 were also working inthe Mettur Township as a clerk and electrician respectively. OneMarappan was also working along with him (P.W.7) as a cleaner inthe same office. One day in July 1980 at about 12.00 noon in thesaid cleaning office he, the said Marappan and A4 were presentthere came a telephone call, which was responded by A4 to whom A2had passed on a massage that he had brought one load full of alumand he same to be unloaded at the godown. A2 came to the officeand enquired about P.W.20-Santhanam (approver) and thereafter A2had passed on the above said information to A4. Thereupon P.W.2-Santhanam brought to key for the godown and he (P.w.7) was alsostanding by the side of him. 80 bags of alum were unloaded fromthe lorry at the godown. A2 has informed that another load willbe arriving soon. But no other load arrived as told by A2. P.W.7would depose that they use to dissolve alum in the water let outfrom the Mettur dam in order to purify the said water and everyday about 50 to 60 kgs of alum will be dissolved for the saidpurpose in the water and that he along with Marappan used todissolve the said alum in the water for the purpose of cleaningthe water. Ex.P.10 is the register maintained for the purpose ofrecording the quantity of alum received and expended. In Ex.P.10at page 76 the details of expense of alum is being stated.Ex.P.11 is page 77 in Ex.P.10. Even though there is an entry atpage 76 to the effect that during the month of August daily 250kgs of alum was stated to be dissolved in the water but that isnot the correct statement. He would categorically state thatusually if alum bags were received they will be unloaded andstored only in godown at the office but this time the load wasunloaded at the godown at water purifying station. 11. P.W.8 was the Manager of Indian Bank, Mettur dam branchduring 1981 to 1985. Ex.P.12 is the letter handed over by him tothe Investigation Officer in this case. From the records he couldfind that the cheque bearing No.861112 dated 2.8.1980 was drawn infavour of Thiru Venkateswara Enterprises by Mettur Township for a https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.31,707/- and that the said amount was entered to thecredit of the Venkateswara Enterprises. The cheque bearingNo.004977 dated 4.8.1980 for Rs.31,000/- was drawn by VenkateswaraEnterprises in favour of one Dharmalingam. 12. P.w.9 is the resident of Mettur. He is running a teastall as well as indulging in contract work. During 1980 he hadtaken contract in the Mettur Township and that the knows A2-Vengadachalam, who used to visit his office very often and he (A2)was the person who was supplying necessary articles to MetturTownship. During 1980 A2 gave a cheque and requested him toencash the same in Indian bank. The said cheque was forRs.30,000/-. Accordingly he encashed the cheque and handed overRs.30,000/- to A2. Since A2 & A1 were at logger heads, A2 hadasked him (P.w.9) to encash the said cheque. 13. P.W.10 is the Deputy Commissioner of Commercial taxoffice at Chennai. During 1983 he was working as an AssistantCommercial tax officer, Salem and on 16.11.1983 as per the requestmade by the Inspector of Police, Vigilance and Ante Corruption, hewent to the office of the Vigilance and Ante Corruption, Salem,wherein the specimen signatures of the accused Thangavellur wasobtained in three papers in his as well as in the presence ofThiru Santhasivam, a junior engineer of Tamilnadu ElectricityBoard. The above said 3 specimen signatures are Ex.P.13(series). The specimen signatures obtained in 3 separate sheetsare Ex.P.14 (series). At that time of collecting the samplesignatures from A1 he was working at Thiruvannamalai.14. P.w.11 is the Deputy Commercial Tax Officer, Dharmapuri.During 1980, he was working as Check Post officer at check postIyothiyapattinam and along with him four other persons wereworking. On 29.7.1980 he was on duty from 8.00 am to 8.00 pm.Ex.P.15 is the check post memo register. As per the entry inEx.P.15 for the date 29.7.1980 at Sl.No.100 at page 29 the lorrybearing No. MRL 3686 had crossed the check post at 8.07 am. Thesaid lorry was proceeding to Mettur from Chennai and it was drivenby driver Arumugam. Ex.P.16 is the relevant entry at page 29 inEx.P.15. He had collected the bill sent along with the lorry toDeputy Commercial Tax Office, Omalur.15. P.W.12 was conducting an enterprises by JaichanranEnterprises, at Mettur during 1978 to 1986, which was dealing withsulphuric Acid. He was examined by the Investigation Officer inthis case. The Investigation Officer had shown Ex.P.17 invoice33A dated 26.7.1980 issued by Jaichandran Enterprises, wherein ithas been stated that 7 tones of alum was said to be sold. Hewould depose that Ex.P.7 does not belong to his firm and that hisfirm is not indulged in the sale of alum but they are concerned https://hcservices.ecourts.gov.in/hcservices/ with the sale of sulfuric acid only. He would admit that Ex.P.18dated 13.9.1985 and Ex.P.19 dated 25.9.1985 were given by him, butdoes not remember to whom he has handed over Ex.P.18 & 19, but heimmediately would say that he gave them to VenkateswaraEnterprises.16. P.W.13 is the lab chemist of Chemical & IndustrialCorporation during 1963 at Mettur and that there is a watertreatment plant at Mettur and the water will be treated in theirlaboratory. If the water was found impure then he will givereport to that effect. To clean one liter of water 10 to 24 mgof alum will be dissolved in the water. For an ordinary water 30mg of alum will be mixed in one liter water for the purpose ofcleaning the same. 17. P.w.14 was the cleaner, who was working under Santhanam(P.w.20) at Mettur Township Water Works. On 27.9.1980 he wasworking in night shift and he came to the office at 9.00 pm andleft the office at 6.00 am on the following day. He saw about 80bags of alum in the godown at Water Works. He was informed thatthose 80 bags were unloaded and kept their in the godown bySanthanam-P.W.20. He would depose that usually the alum bags willbe unloaded and kept only in the store room but this time 80 bagswere kept in the godown of water works. He would categoricallysay that during the remaining period of the yer apart from those80 bags of alum no other bags containing alum was delivered andthat during July and August depending on the intencity of theimpurity of the water daily 50 to 80 kg of alum will the dissolvedin the water by him. He would in definite terms say that he hadnot dissolved exceeding 80 kgs of alum per day preceding twomonths and that at no point of time he had dissolved neither 200nor 240 kgs of alum in the water. 18. P.W.15 was the clerk of Mettur Township during 1980. Hewould say that A1-Thangavelu was working as junior engineer and atthat time A3 was working as junior assistant in Mettur Townshipduring 1980 and that the Investigation Officer had enquired him byshowing Ex.P.20 relating to the file 5873/e2/80 and in it at page135 dispatch seal has been affixed but it does not contain hissignature. Ex.P.21 is page 135 in Ex.P.20. Likewise in page 143,149, 155 also dispatch seal was found but it does not contain hisinitials. Page 143 is Ex.P.22, page 149 is Ex.P.23 and page 155is Ex.P.24. According to him, Ex.P.21 to Ex.P.24 entries weremade by A3-Ramasamy. Ex.P.25 is the maffesal tabal dispatchregister. He would say that he joined duty on 15.7.1980 but onthe said ate Ex.P.21 to Ex.P.24 were not dispatched. 19. P.W.16 has not supported the case of the prosecution.Hence he was treated as hostile witness. https://hcservices.ecourts.gov.in/hcservices/

20. P.W.17 was the Filter Bed Operator of water purifyingstation at Nangavalli durin 1965 to 1987. He would said thatdaily from salem about 55 lakhs galan water was distributed andthere are six filter bed in the said station. Basing on thepercentage of turbidity of the water maximum 150 kgs of alum perday will be dissolved during July and August of 1980. Accordingto hi, Nangavalli Water Purifying Station is six times bigger thanthat of the purifying station at Mettur. To ascertain theturbidity of the water, they use to conduct test by usingturbidity silver rod PW 35 and then proportionately dissolve thealum in the water to purify the same. If more alum was dissolvedin ordinary water where this is no much turbidity then the waterbecame useless for drinking purpose. 21. P.W.18 is the then VAO of Azhagapuram village. On19.3.1983 he went to Vigilance and Ante Corruption Department, asper the request made by the Inspector of Police. At the time whenhe reaches the said office A2 was found available there. Ex.P.26(series) are the specimen signatures of A2 which were obtained inhis as well as one Sathasivam's presence. The specimen signaturesof A2 were also obtained in 3 separate sheets. 22. P.W.19 is the then junior assistant in Deputy CommercialTax office at Omalur. During 1980 to 1984 he was working as aPersonal Assistant to the Deputy Commercial Officer at Omalur. Ason 25.4.19980 Sri Venkateswara Enterprises was issued with alicence for selling aluminiam sulphate and electrical appliancesas per the registered certificate No.788734. Ex.P.28 is theconnected file. The said licence was received by A2 on 29.4.1980.A2 is the proprietor of Sri Venkateswara Enterprises and he hasobtained licence for selling his goods at Mettur dam. The saidlicence was renewed upto 31.3.1982.23. P.W.20 is the electrician of Mettur Township waterpurifying and drinking water pumping station for the past 20 yearsand he had retired from service on 13.6.1986. He knows all theaccused. His duty was to clean the filter daily, dissolving thealum in the water and to note down the storage of the water and toenter the quantity of alum spent every day in the accountregister. According to hi, he was doing the said job along withA4-Veeraragavan (deceased) and that there were two shifts one from7.00 am to 3.00 pm and another one from 7.00 pm to 3.00 am andthat he as well as Veeraragavan (deceased) were doing the saidwork in turns. During 1979 to 1980 A1-Thangavellu was theinchargge of the post of supervisor and as per his instructionsthe indane for alum was placed by him (P.W.20). A3-Ramasamy wasthe store keeper. A2 was working as a bus conductor. On 13.8.197910 tones of alum was kept in stock and under Ex.P.29 he had given https://hcservices.ecourts.gov.in/hcservices/ a certificate to the effect that there is need for furtherrequirement of alum as instructed by A1-Thangavellu (Ex.P.29 is inEx.P.9 file). But no further quantity of alum was supplied. On20.6.1980 apprehending more quantity of water will arive at Kaveryriver and there may be more requirement for alum, he had writtenEx.P.30-letter stating that 15 tones of alum are required more asinstructed by A1-Thangavellu. But no further supply of alum wasreceived. Hence, again on 11.7.19980 as per the instructions ofA1-Thangavellu he wrote another statement under Ex.P.31 statingthat more quantity of alum was required (Ex.P.31 is in Ex.P.20file). During the end of the month of July he was in his house at12.00 noon a person informed him that he was required by thesupervisor, immediately he went to the office and met thesupervisor A1-Thangavellu, who had informed him that alum hasarrived and requested him to unload the bags of alum at waterworks godown. When h (P.W.20) asked him why he directs him tounload the alum at the godown of the water works contrary to thenormal procedure of unloading the alums at the office godown. Forthat, A1-Thangavellu had adviced him to do the work withoutraising unnecessary questions. So immediately he went the godownat water works where he saw the A4-Veeraragavan at day duty andalso saw the MKS lorry and A2-Venkatachallam who came in the saidlorry. A2-Venkatachalam had informed him hat he is supplying thealum to the township and he had brought 80 bags of alum in thesaid lorry and with the help of the other employees he unloaded 80bags of alum at the water works godown in the presence of P.W.7-Thomas and one Marrappan. A2 has informed that another load ofalum will arrive very soon but the second load never arrived.Immediately he came to the office and informed A3-Ramasamy that 80bags of alum were stored in the godown. Thereafter he went to hishouse and took his lunch and returned to office at about 3.00 pmand informed A1 about the arrival of 80 bags of alum which isequivalent to 8 tones. A1 chided why he has informed about thearrival of alum to A3-Ramasamy thereby exceeding his limit.Thereupon he had obtained an indane for the daily use of the alum.A1 had inforemd him to maintain the account in a way to show thata larger requirement of alum for every day use. Every day 60 to70 kgs of alum is required for use. As per the instructions of A1he had return the accounts as to the daily requirement as 250 kgsto 300 kgs. He has also informed Veeraragavan who is doing the 2ndshift to follow the same method and he also did so. He has alsoinformed this to Abdul Rahim, the then VAO of the Mettur Township,who has also advised him to act as per the instructions of thesupervisor, accordingly out of fear he maintained the accounts asdirected by A1 and deceased accused Veeraragavan also did so.Ex.P.10 is the register showing the daily requirement of alum andas per the instructions of the supervisor he and deceased accusedVeeraragavan had entered the account for July and August 1980 as240 kgs was spent every day. Ex.P.11 is the said entry in the https://hcservices.ecourts.gov.in/hcservices/ handwriting of Veeraragavan and his (P.W.20). He wouldcategorically say that only 8 tones of alum was received andremaining 7 tones of alum was never received. Only to set rightthis deficit A1 had asked him to write false account has indicatedabove. During July and August months three indanes were placedonly to set right this deficit. At page 75 and 76 in Ex.P.10 theabove said details of indane is shown. Ex.P.32 is the log bookfor the period from 7.6.1980 to 11.9.1980. Those entries at pages67 to 159 were entered by him and Veeraragavan. He would say thatinstead of entering that 62 to 80 Kgs of alums were spent per dayit has been wrongly entered as 150 to 240 kgs of alums were spentper day by them. He would also depose that he was also arrestedby police and kept in prison and later he was produced in theSalem Court and he gave confession statement before theMagistrate, who had given him 24 hours of reflex time after givingstatutory warning. Ex.P.30 is his confession statement and that hewas given tender of pardon.24. P.W.21 was the junior Assistant he maintains recordsrelating to Tender and based on the indane Ex.P.29 the requirementof 15 tones of alum was recommended under Ex.P.34-officialproceedings. After calling for tenders, which was successfulonly at the fourth time, the entire documents along withparticipants companies records were placed before A1. Since A2'scompany's tender is less, the tender was given infover of A2 underEx.P.36. Ex.P.39 insertion was made in S.No.64 instead of hairbelt 5, 15 tones of alum was introduced. The said document wasprepared by P.W.21, counter signed of P.W.22, the Executiveofficer. 25. P.W.22-Santhanagopalan, is the manager during therelevant period, who was examined by the Investigation officer byshowing Ex.P.9 and Ex.P.20. He would depose that while 9 tones ofalum were in stock, tender proceedings were initiated to purchase15 tones and the tenders were called on 31.10.1979, 06.12.1979 and29.01.1980 but there was no response. Hence, 4th tender was calledin which A2-comapany and another company responded and since thequotation of A2 was lowest, Executive officer has given an orderin favour of A2-company and tender shedule ExP.39 was prepared byP.W.21. In the insertion item both P.W.21 and A3 have affixedtheir signature in Ex.P.39. Under Ex.P.20, Executive Officerissued the order in favour of A2 company in which A3 stated andaffixed his signature for the supply of 15 tones of alum. A2-company had no objection to give Rs.31,707/- under Ex.P.42 whichwas maintained by P.W.20.26. P.W.23 is the manager in Industrial Chemical Agency whosupplied the alum sulphate to the MM.Kitcha & Co., for 8 tonnesthe sum of Rs.10,240/- was received under Ex.P.50 to 52. https://hcservices.ecourts.gov.in/hcservices/

27. P.W.24, Booking clerk for MKM lorry office at ThambuChetty Street who would depose to the effect that 80 bags of alumfrom MM.Kitcha & Co., was transported from its godown to thegodown of Mettur Township water works and transport charge wasRs.720/- and Ex.P.4 and Ex.P.53 are the relevant documents. 28. P.W.25 is the receptionist of Surath Lodge. He woulddepose that as per the entries in Ex.P.24-register of the lodge,Thangavellu (A1) stayed at their lodge on 28.7.1980 from 5.50 am.The relevant entry in Ex.P.54 is Ex.P.55, wherein at page 36 A2has signed which is Ex.P.56. Ex.P.57 is the dispatcher registerand at page 77 in Ex.P.57, it has been stated that Thangavellu hadleft the lodge at about 6.45 pm and delivered Room No.6 of thesaid lodge. Ex.P.58 is the signature of A10Thangavellu indispatcher register. Ex.P.59 is the cash register which willshow that Rs.25/- has been charged from A1-Thangavellu as rent forhis stay in Room No.6. The relevant entry in Ex.P.59 is Ex.P.60.29. P.W.26 Vedachalam would depose that he knows Abdul Rahimand on seeing the tender advertisement in 'Malymurasu' newspaperon 8.7.1980 he approached the said Abdul Rahim and requested toheld him to get the tender for the supply of alum. Ex.P.61 is thetender produced by him and as per his tender he has applied tosupply sulphur amoniya at the rate of Rs.2,500/- per tone and alumat the rate of Rs.350.50 per tone and the said tender amount wasquoted by him at the advise of A1-Thangavellu and when he met hima week thereafter, he was informed that the tender was given toanother person. 30. P.W.27 speaks that the he is owning an Clinical Companyand he has not participated in the tender and in the year 1980 May76.580 tones of sulphur amoniya was the stock in his company andthe rate of alum per tone during July 1980 was between Rs.1000/-to Rs.1025/- and that he is also having a water purifying plant inwhich the requirement of alum per day was 60 to 78 kg.31. P.W.28 is the mahazar witness for the house searchconducted by the Investigation officer in A2's house on 16.2.1982between 12.15 pm to 2.00 pm. Ex.P.62 is the search list in whichhe has signed as a witness. 32. P.w.29 is the then Assistant of Assistant Engineer'soffice at PWD at Mettur Dam. He would depose that during July andAugust 1980 the quantum of water relied was 2000 cubic feet perminute. Ex.P.63 is the statement given by the Assistant Engineerin this regard. 33. P.W.30 is the handwriting expert. He would speak about https://hcservices.ecourts.gov.in/hcservices/ Ex.Ps.64, 65, 66, 54, 57, 62, 67, 3, 4, 68, 69, 27, 26, 69, 71,72, 13, 14, 73, 74, 75 and he has compared the signatures of A1and A2 with that of the disputed signatures in the said documentsand he has given his opinion Ex.P.76. 34. Ex.P.31 is a retired under secretary to the Government,who after going through the records received from Vigilance andAnte Corruption department has given sanction order for initiatingcriminal proceedings against A1, A2, A4, A5 & a6 under Ex.P.77.35. P.W.32 is working in EB Department as Assistant Engineer,who went along with P.w.36 to the house of A2 during house searchand only his presence Ex.Ps.62, 52, 53, 78 to 85 were recovered. 36. P.W.33, ACTO, speaks that he send summon to A2 forpayment of tax to 15 tones of alum under Ex.P.86 and Ex.Ps.17, 18& 19 are the letter received from A2. 37. P.W.34 is the J.M.Assistant, who speaks about therecording of approver evidence and proceedings and Ex.Ps.3, 87 to90.38. P.W.35 is the judicial officer who had recorded theconfession statement of P.W.20 under Section 164 of Cr.P.C., underEx.P.91 and his proceedings are Ex.Ps.92 to 94.39. P.W.36 and P.W.7 are the investigation officers who speakabout registration of the complaint-Ex.P.1 and about theenquiries. On the basis of the report sent by the Vigilance andAnti Corruption Department, a case was registered under Cr.No.1/82under Section 129(b), 477(A), 428 IPC and under Section 5(1) r/w 5(1)(d) of the Prevention of Corruption Act, 1947 and under Section109 IPC. They have examined the witnesses and recorded theirstatements and arrested the accused and remanded them to judicialcustody and produced P.W.20-Santhanam before the JudicialMagistrate and after getting tender of pardon, he was treated asan approver and after completing the investigation and afterfollowing the formalities, P.W.37 has filed the charge sheetagainst A1 to A5 under Section 120(b), 420 r/w 109 IPC, 477(A) IPCand u/s 5(2) r/w 5(1)(d) of PC act, 1947.40. When incriminating circumstances were put to the accusedA1 to A3 would deny their complicity with the crime. 41. Now the point for determination these appeal is whetherthe findings of the trial Court against the appellants herein thatthey are guilty under Section 120(b), 420, 477(A) IPC and underSection 5(2) r/w 5(1)(d) of PC Act, 1947 r/w section 109 IPC, isliable to the set aside for the reasons stated in the memorandum https://hcservices.ecourts.gov.in/hcservices/ of appeal?42. The Point:- 42(a) The learned Senior Counsel Thiru Gopinathappearing for A3/appellant in C.A.1045/99, would draw theattention of this court to the fact that the findings of thelearned trial Judge basing mainly on the sole evidence of P.W.20,the approver cannot be sustainable because P.W.20 was examinedonly in chief-examination and was not cross examined since he diedsubsequently to the recording of chif-examination before the trialCourt and under such circumstances failure of an opportunity tothe accused to separate the truth from the evidence given by thewitness in examination-in-cheif, would amount to cutting hishands, legs and mouth and making him to stand meekly before thebarrage of statement made by the witnesses in examination in chiefagainst him for sending him to jail. In support of thiscontention the learned senior counsel would rely on 1995 Cr LJ1270 (Nandnan Kheamraj Vs. State of MP and another). The factsof the above case is that on the private complaint of the foodinspector, in respect of adultration of milk, against the accused,the conviction was based on evidence of the food Inspector, alone,though he was not cross-examined by the accused and his crossexamination was not possible due to his accidental death. Undersuch circumstances, it was held by the High Court of MadhyaPradesh that the conviction could not be based merely on thestatement of the food Inspector which was recorded before framingof the charge and particularly when panch witnesses did notsupport the food Inspector. It cannot be said that the accusedhaving been dead his evidence could be relied upon by invokingSection 33 of the Evidence Act. In view of Section 244, 245 and246 of Criminal procedure in a private complaint the accused doesnot have a right to cross-examine the witness examined by theprosecution before framing of charge. In the interest of Justiceand as a matter of convenience he has been given a right to crossexamine those witnesses. It is not the right which the accusedperson having in committal proceedings to cross examine thewitnesses examined on behalf of the prosecution, when cases usedto be committed to court of session under code of criminalprocedure 1898. Since the panch witnesses have also failed tosupport the case of the food Inspector, who could not be crossexamined due to his accidental death it was held by the High Courtthat the conviction based solely on the uncorroborated evidence ofthe food Inspector's chief examination is not sustainable. 42(b) Per contra the learned Additional Public ProsecutorThiru V.R.Balasubramanian would contend that the evidence of awitness who could not be subjected to cross-examination due to hisdeath before he could be cross-examined, is admissible inevidence. In support of this contention the learned Additional https://hcservices.ecourts.gov.in/hcservices/ Public Prosecutor would reply on 1998 Crl. LJ 3494 (FoodInspector, Thodupuzha Cirlce Vs. James N.T and another). Therelevant observation in the above Judgment runs as follows:-"As already noted P.W.1 the food Inspector diedafter examination in chief and there was no opportunityto cross examine him. P.W.2 who is the peon in theoffice of P.W.1 has narrated in detail with regard tothe purchase of peas dhal from the shop of therespondents for analysis sampling etc., by P.W.1. P.W.3the owner of the shop room in which the respondents wereconducting the trade has also deposed about the purchaseof the articles for analysis, sampling etc. by P.W.1.P.W.4 the successor in office of P.W.1 has deposed inconformity with the evidence of P.W.1 and P.W.2 and thevarious documents produced in this case from his officeare proved and marked through him. It has been held inthe above ratio that"The General proposition that the evidence of awitness who is not subjected to cross-examinationcannot be looked into cannot be disputed. But thequestion in this case to be considered is whetherthe evidence of P.W.1 who was examined in chief andwas not available for cross-examination due to hisdeath in the mean while is admissible or not. Theprinciples laid down in the decisions relied uponby the counsel for the appellant referred to aboveclearly establish that the evidence of a witnesswho could not be subjected to cross-examination isadmissible in evidence, though the evidentiaryvalue will depend upon the facts and circumstancesof the case."42(c) The same principle has been laid down in AIR 1944Allahabad 188 (Ahmad Ali Vs. Jotiprasad), wherein it has beenobserved as follows:- "They also produced a witness called wazir Singhwho was employed by them and who gave evidence about thenumber of tress which had been cut down bythedefendants. Unfortunately this witness died before hecould be cross-examined and it is urged on behalf ofdefendants/appellants that his evidence is notadmissible. There is certainly no provision in theEvidence Act that the evidence of a witness who has beenexamined in open court upon oath shall be excludedbecause it has not been possible for the other party tocross examine him. .........I need only quote the following passage in para 1469 inthe tenth edition of Taylor's Law of Evidnce "In theevent of death or serious illness of a witness between https://hcservices.ecourts.gov.in/hcservices/ his examination in chief and in cross examination... inEngland both a late Master of the Rolls and a late vicechancellor have in a Civil case held that the evidencepreviously given by him in admissible though the degreeof weight to be attached to it is of course a questionof fact"The important factor to be noted in the case on hand is that thecase of the prosecution does not exclusively hinges upon theevidence of P.W.20 (approver) alone, but the prosecution alsorelied upon the evidence of P.W.1, P.W.5 to P.W.7, P.W.10, P.W.15,P.W.21, P.W.22, P.W.25, P.W.26, P.w.30, P.W.31 against A1 and onthe evidence of P.w.1, P.W.4 to P.w.9, P.w.18, P.W.19, P.w.21,P.W.22, P.W.24, P.w.28, P.W.30, P.W.32 and P.W.33 as against A2and on the evidence P.w.7, P.W.15, P.W.21, P.W.22 and P.W.31 asagainst A3. Under such circumstances, I am of the considered viewthat the contention of the learned Senior Counsel that noevidentiary value can be attached to the evidence of P.W.20(approver) and his evidence is liable to be eschewed on theground that he could not be subjected to cross-examination holdsno water. 42(d) Now the point is whether the prosecution has bring homethe guilt of the accused dehorring the evidence of P.W.20 throughother material witnesses as indicated above. 42(e) Now let us analyse the evidence as against each andevery appellant and see whether the trial court is justified inconvicting the accused under the above provisions of law. Asagainst A3/the appellant in C.A.No.1045/99, the prosecution relieson the evidence of P.W.7, P.W.15, P.W.20 (approver), P.W.21,P.W.22 and P.W.31. The charges No.7, 8 and 9 are relating to A3-Ramasamy (Prviously A4). The 7th charge is that as the store keeperin the Mettur Township committee between 8.10.1979 and 31.8.1980in furtherence of common intention falsified the accounts so as toappear that 15 tonnes of 'Alum' was puchased by Mettur Town shipin order to purify the Drinking Water supplied by the MetturTownship to the public but actually 8 tonnes of Alum alone wassupped by A2 under the able assistance of A1. Hence, the chargeunder Section 477(A) IPC. Eight charge against A3-Ramasay is thathe had comitted an offence of cheating under Section 420 IPC r/w109 IPC. Nineth charge against A3 is by corrupt or illegal meansor otherwise abusing his official position to obtain pecuniaryadvantage to A1 and A2 to the tune of Rs.13,650/- thereby comitedan offence punishable under section 5(2) r/w 5(1)(d) of Preventionof Corruption Act, 1947 r/w 109 IPC.42(f) P.W.7 would depose that A3 was working as a clerk inMettur Township. P.W.7 not implicated A3 in the crime. P.W.15would depose that A3 was working as a Junior Assistant at Mettur https://hcservices.ecourts.gov.in/hcservices/ Township. He would depose that Ex.P.21 to P.24 entries were madeby A3. But he would admit in the cross-examion that he cannot saywho had affixed the despatch seal and dates on Ex.P.21 to Ex.P.24,which are Tender notices. P.W.20 (approver) would say that A3Ramasay was working as store keeper. P.W.20 (approver) also hasdeposed that he had informed about the arrival of 80 bags of Alumt A3 Ramasamy. When P.W.20 came to know about the arrival of 80bags of alum he went and informed A3. After P.W.20 informed thatA3 he(P.W.20) was chided by A1 for having informed about thearrival of 80 bags of Alum to A3. So this fact will itself leadus to draw an inference in favour of A3. P.W.21 would depose inthe chief-examination that in the Tender schedule Ex.P.39, (page49 in Ex.P.20) at S.No.64, A3 had scored out an entry 'Hair belt 5inches' and had written about the arrival of 15 alums. But in thecross-examination P.W.21 would admit that he has no personalknowledge about the endorsement made by A3 in Ex.P.39. Under suchcircumstances, we cannot presue that the above said entry isEx.P.39 was made by A3. Even though a hand writing expert'sservices were utilized for the purpose of comparing the signatureof A1 & A2 with that of a disputed signatures. So there is noevidence on record to show A3 had made a wron wntry in Ex.P.39.42(g) P.W.22 would depose in the cross-examination that A3has not working in E2 Section. P.W.31, Sanctioning authority, whogave sanction for prosecution against A3. Under suchcircumstances, I am of the firm view that the guilt against theaccused A3 has not been proved beyond any reasonable doubt. I holdthat A3 is not liable to be punished. 42(h) As against A1 and A2 the evidence glares at them areP.W.1, P.W.4 to P.W.10, P.W.15, P.Ws.18 to 22, P.Ws.24 to 26,P.W.28, P.Ws.30 to 33. A1 is the public works supervisor ofMettur Township Committee. A2 is the contractor. Both A1 and A2along with other accused in cluding the approver (P.w.20) agreedto commit illegal act to cheat the Mettur Township Committee bycreating fabricated documents as if 15 tonnes of Alum has beenpurchased, but only 8 tonnes of Alum has been supplied theremaining 7 tonnes have not been supplied but necessary chargesare correction has been made in records and received Rs.13,650/-as illegal income towards the value of 7 tonnes of Alums. Theevidence of P.W.1, the complainant against A1 and A2 is to theeffect that on 2.8.1980 at about 11.50 am he was both A1 and A2auarrelling at each other before the Indian Bank, Mettur branch,he pacified them and after A1 left the place A2 had informed aboutthe genesis of the case which made him to prefer the complaintEx.P.1. In this regard P.W.20's evidence is very important to benoted. P.W.20 a co-employee of A1 and deceased accusedVeeraragavan at Mettur Towhship would admit that as requested byA1 Thangevellu he gve Ex.P.29 and Ex.P.30 letters for the suply of https://hcservices.ecourts.gov.in/hcservices/ 15 tonnes of Alums. Since alums was not supplied as requiredunder Ex.P.29 and Ex.P.30 he gave another report under Ex.P.31.Thereafter at the end of July 1980 at 12 noon while he was on offduty at home he was informed that A1 required him and he went andmet him, who informed him about the arrival of 80 bags of Alumwhich is equvalent to 8 tonnes, were unloaded and stored in thegodown of the water works. It is further revealed from theevidence of P.W.20 that to compensate the shortage of the supplyof 7 tonnes Alums he and the co-worker (deceased accusedVeeraragavan) have created false records, by making false entriesin ex.P.10 and Ex.P.11 regarding the requirment of Alum per day as250 Kilos to 300 Kilos against the actual requirement of 60 to 70Kilos per day, as per the direction of A1 and the dischargeaccused Abdul Rahim. He would depose in categorical terms thatthe remaining 7 tonnes of Alums was never supplied at all. Ex P33is the statement of P.W.20 recorded under Section 164Cr.P.C..P.W.21 also corroborated the evidence of P.W.20 withregard to the approval of tender in favour of A2 under Ex P36 toEx P38 and also about the correction made in Ex P39 entryregarding the supply of 15 tonnes of Alum. Even though he wouldsay the said correction was made by A3, in the cross examination ,he would admit that he has no personal knowledge about the saidcorrection made by A3. There is no expert opinion availableagainst A3 in this regard also to link A3 with the crime committedby A1 and A2.42(i) The evidence of P.W.24, P.W.25 coupled with theevidence of P.W.23 would go to show that both A1 and A2 went toMadras and puchase only 80 bags (8 tonnes) of Alums from M/sM.M.Kitcha and Company which supplied at the rate of Rs.28/per bagand 80 bags were supplied under Ex P52 delivery order. There isno material produced on the side of A1 and A2 to rebutt theevidence of prosecution to show that the remaining 7 tonnes ofAlum was supplied as per Ex P69 bill and the endorsement madethere on by A1.42(j) After taking in to consideration all the materialsproduced before the trial Court, the learned trial Judge has cometo the correct conclusion that the charges levelled against A1 andA2 has been proved beyond any reasonable doubt and accordinglyconvicted and sentenced them as indicated above, which in myconsidered view does not require any interference from this Court. 42(k)When the mind set of this Court is revealed beforethe learned advocates they would submit that due consideration maybe shown on A1 and A2 in the ordeal of facing the trial over 25years before the trial Court as well as before this Court and alsothe advanced age of 65 years of A2 and 70 years of A1, someleniency may be shown on A1 and A2 while awarding sentence. Due https://hcservices.ecourts.gov.in/hcservices/ consideration is given to the above submissions of the learnedcounsels for A1 and A2 and I am of the view that while confirmingthe finding of conviction against A1 and A2 by the trial Court thesentence alone can be modified to that of "till the rising of theCourt" under all the charges levelled against A1 and A2 besidesconfirming the fine imposed on them by the trial Court. Point isanswered accordingly.43. In fine Crl.A.No.1045 of 1999 is allowed and the Judgmentof the trial Court in S.C.C.No.206 of1986 on the file of the SubJudge and I Additional Sessions Judge-cum- Chief JudicialMagistrate,Salem in so far as A3 is concerned, is set aside and A3is set at liberty. Fine amount paid by A3 is directed to berefunded to A3.Bail bond against A3 stands cancelled.Crl.A.No.1010 of 1999 preferred by A1 and Cr.A.No.998 of 1999preferred by A2 against the Judgment in C.C.No.206 of 1986 on thefile of the Sub Judge and I Additional Sessions Judge-cum- ChiefJudicial Magistrate,Salem are dismissed. But the sentence aloneis modified to that of "till the rising of the Court"under all thecharges levelled against them considering their age(A1 is 70years) (A2 is 65 years) and the plight or ordeal of trial in whichthey have been put into for the past 25 years before the trialCourt as well as appellate Court. Fine imposed against A1 and A2shall sustain. A1 and A2 shall appear before the trial Court on27.4.2007 at 10.30 a.m., to undergo the sentence. Registry is directed to inform trial Court by fax anddespatch the records within two days.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssv https://hcservices.ecourts.gov.in/hcservices/ To1.The Special Judge and First Additional District Judge- cum-Chief Judicial Magistrate, Salem.2.The Chief Judicial Magistrate, Salem.3.The Principal Sessions Jude, Salem.4.The Inspector of Police, (Vigilance and Anti corruption) Salem.5.The Public Prosecutor,High Court, Madras-104.6.The Section Officer,Criminal Section, High Court,Madras (to despatch the recordswithin two days).+1cc to Mr.D.Shivakumran, Advocate Sr 26857+1cc to Mr.A.N.Thambidurai, Advocate SR 26680+1cc to Mr.A.K.Kumarasamy, Advocate Sr 26684BV(CO)km/23.4.Crl.A.No.989, 1010 & 1045 of 1999