C.Rukmangathan v. State

BAIL SLIP---The Appellant/Accused, namely C.Rukmangathan, S/o.Chinnappan, wasreleased on bail as per the order of this Hon'ble Court dated24.4.2006, made in Crl.M.P.No.2696 of 2006 in Crl. Appeal No.361 of2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 15.07.2009Coram: The Honourable Mr.Justice M.JEYAPAULCriminal Appeal No.361 of 2006---C.Rukmangathan.. Appellant/Accusedvs. State, rep.by Deputy Superintendent of PoliceAnti Corruption and VigilanceCuddalore (Crime No.4/Ac/2000/CL)... Respondent/ComplainantCriminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, against the judgment dated 27.03.2006 in SpecialCase No.1 of 2001 on the file of the learned Chief JudicialMagistrate, Cuddalore conviction and sentence imposed against theappellant and to allow this appeal and to set him at liberty. For Appellant : Mr.S.Ashok Kumar, Senior Counsel for Mr.Malath DevapriyamFor Respondent : Mr.N.Kumaran Govt. Advocate (Crl. Side) ---J U D G M E N TThis is an unfortunate case, where the appellant, who served asa Commercial Tax Officer, was convicted for an offence under Section7 of the Prevention of the Corruption Act, 1988 and was sentenced toundergo rigorous imprisonment for three years and to pay a fine ofRs.10,000/- with usual default sentence even when all the materialwitnesses were turned hostile to the version of the prosecution. https://hcservices.ecourts.gov.in/hcservices/

On the side of the prosecution, 16 witnesses were examinedand 30 exhibits and 11 material objects were marked. Neither oralnor documentary evidence was produced on the side of the accused.

P.W.2 had started oil business in collaboration with hispartner P.W.3 about three months prior to the occurrence. P.W.2having sought advise from his auditor as to the formalities to becomplied with for securing registration certificate under the TNGSTAct, approached the accused with the necessary application. Theaccused went along with P.W.6 to the business premises of P.Ws.2 and3 and having inspected the account books maintained by P.Ws.2 and 3,directed P.W.2 to get a deposit for a sum Rs.5,000/- for issuing thenecessary certificate sought for by P.W.2. P.W.2 felt that thedeposit amount sought for by the accused was on the higher side andhe informed the accused that only a deposit of Rs.2,000/- would berequired for obtaining the certificate, but the accused insisted thatthe deposit for Rs.5,000/- should be made for processing theapplication seeking certificate under the TNGST Act.4. P.W.2 went along with P.W.3 to the office of the accused andhaving submitted the demand draft for Rs.5,000/- marked as Ex.P5 andwaited for a few days for issuance of the certificate. Such issuanceof the certificate was belated, he went straight to the Inspector of Police, P.W.15 and as per his instructions, the complaint Ex.P6 wasdrafted. Thereafter, P.W.15 asked P.W.2 to bring a sum of Rs.1,500/-to trap the accused. When the said amount was brought by P.W.2 tothe office of P.W.15, P.W.15 demonstrated phenolphthalein test in thepresence of P.Ws.2, 4 and 7. Thereafter, P.W.2 went along with P.W.4as instructed by P.W.15 to the office of the accused, where P.W.2paid Rs.1,500/- to the accused. P.W.2 gave signal to P.W.15, whocame along with P.W.7. Having introduced himself and the otherwitnesses present over there, P.W.15 prepared sodium carbonatesolution and asked the accused to dip his hands which turned pink. The sodium carbonate solution was collected and the same was sent forchemical examination. The accused was arrested in connection withthis case. P.W.15 investigated the matter and thereafter, P.W.16having completed the investigation, laid the final report as againstthe accused for an offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

Learned Chief Judicial Magistrate, Cuddalore, having advertedto the evidence on record, chose to acquit the accused for an offenceunder Section 13(2) read with 13(1)(d) of the Act, but convicted theaccused under Section 7 of the said Act and sentenced him as detailedsupra.

The learned Senior Counsel appearing for theappellant/accused would submit that the star witnesses viz. P.Ws.2and 4 have turned hostile to the case of the prosecution. It is his https://hcservices.ecourts.gov.in/hcservices/ submission that none of the witnesses has spoken to the demand ofbribe as alleged by the prosecution. When there is no demand, merepayment to the accused would not constitute an offence under the Prevention of Corruption Act, he would submit.

Per contra, the learned Government Advocate (Criminal Side)would contend that the trial Court has rightly returned a verdict ofconviction under Section 7 of the Act, based on the payment made byP.W.2 to the accused.

P.W.2 is the complainant in this case. He has spoken to thefact that the accused only insisted upon a deposit for a sum ofRs.5,000/- before ever issuing the certificate under the TNGST Act. He had come out with an affirmative answer that no demand of bribewas made by the accused to him. The interaction was only withreference to the deposit amount sought to be made for issuance of thecertificate under the TNGST Act, he has deposed. Of course, P.W.2has spoken to the fact that the amount of Rs.1,500/-, which wastreated with phenolphthalein powder, was handed over to the accusedand the same was accepted by him in the presence of P.W.4.

P.W.4 is the trap witness in this case. Never had he spokenabout the demand made by the accused for issuance of certificateunder the TNGST Act. Not only P.Ws.2 and 4 were treated as hostileby the investigating agency, more strangely P.W.4 was recalled aftera lapse of two years by the prosecution for the purpose of subjectinghim for further cross examination on account of his hostilityexhibited during the course of chief examination. For the reasonsbest known after a lapse of two years, P.W.4 started supporting thecase of the prosecution when he was cross examined by theprosecution. Such part of the evidence of P.W.4 cannot at all standthe legal scrutiny for two reasons. Firstly, he was subjected tocross examination immediately after the chief examination was overwith the permission of the Court by the prosecution. He in factreiterated the stand he had taken during the course of chiefexamination at that point of time. Secondly, P.W.4 was subjected tocross examination for the second time after a lapse of two years. The reason for such a revulsion by P.W.4 is quite obvious. Therefore, the Court is not inclined to give any credence to such aversion found in the cross examination portion of P.W.4.

P.W.7 has been cited as a mahazar witness in this case. Itis the admitted case of the prosecution that P.W.7 had notaccompanied P.W.4 at the time when the trap was laid to the accused. He has of course spoken to the seizure of the sodium carbonatesolution and the preparation of the mahazar for such seizure. Hisevidence does not advance the case of the prosecution at all. https://hcservices.ecourts.gov.in/hcservices/

The partner of P.W.2 was examined as P.W.3. He has also notchosen to support the case of the prosecution and as a result ofwhich he was treated as hostile and was subjected to crossexamination. He has also not spoken to any demand made by theaccused as gratification. One Murugavel, who was examined as P.W.5was found to be an employee of P.W.2. He has also not statedanything about the demand made by the accused at the time when theaccused accompanied by P.W.6 to the business premises of P.W.2 forthe purpose of inspection of the accounts maintained by P.W.2relating to their oil business.

As rightly pointed out by the learned Senior Counselappearing for the appellant/accused, none of the witnesses has spokento the demand of bribe made by the accused. The question that arisesfor consideration is whether an accused can be convicted under the Prevention of Corruption Act, when the demand allegedly made was notestablished by the prosecution.

It is a well settled question of law that mere recovery ofamount received by an accused will not constitute an offence underthe Prevention of Corruption Act. The prosecution is bound toestablish that there had been a demand of bribe for discharging theduty by the public servant if all the material witnesses in this casehad turned hostile. Therefore, the evidence made by the prosecutionon the premises that there was demand of bribe by the accused and thebribe was received by him during the course of trap proceedings isfound to be completely shaking. It is found that P.W.2, who is thecomplainant in this case, has completely given a go-by to his versionthat there was a demand. He has come out with a shocking revulsionthat the complaint was drafted by him only on the dictates of the Inspector of Police, P.W.15. There is nothing on record to implicatethe accused in any of the offences under the Prevention of CorruptionAct.

The trial Court has simply relied upon the evidence of P.W.2with respect to the amount paid by him to the accused and recordedconviction under Section 7 of the Prevention of Corruption Act. Theapproach made by the learned Chief Judicial Magistrate, Cuddalore, tothe materials available on record is found to be totally erroneous. Therefore, the Court has no hesitation to hold that the prosecutionhas miserably failed to establish the receipt of gratification by theaccused for discharging his official function. The charge under Section 7 of the Prevention of Corruption Act therefore does notstand legal scrutiny.

In view of the above facts and circumstances, the judgmentof the conviction recorded by the Chief Judicial Magistrate, Cuddalore, under Section 7 of the Prevention of Corruption Act, 1988and the sentence imposed thereunder, stands set aside and the accused https://hcservices.ecourts.gov.in/hcservices/ is acquitted of the aforesaid charge and consequently he is set atliberty. The bail bonds, if any, executed by him, shall standannulled. The fine amount paid by the accused shall be returnedforthwith. The appeal consequently stands allowed. Sd/- Asst. Registrar/true copy/ Sub Asst. RegistrarATRTo1. The Chief Judicial Magistrate Cuddalore.2. The Deputy Superintendent of Police, Anti Corruption and Vigilance, Cuddalore.3. The Public Prosecutor, High Court, Madras-104.4. The Section Officer VR Section, High Court, Madras.+1 cc to Mr.A.Malath Devapriyam, Advocate, SR.No.31293Crl.A.No.361 of 2006KSK {CO}TP/24.7.2009