R.Krishnamurthy v. State of Tamil Nadu

BAIL SLIPThe Appellant / Accused viz.R.Krishnamurthy, S/o. Raghava Reddy, aged 48 years was directed to be released on bail as per order ofthis Court dated 24.11.2003 and made in Crl.M.P.No.11133 of 2003 in Crl.A.No.1690/2003 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.07.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.A.No.1690 of 2003R.Krishnamurthy...Appellant/Accused-1vs. State of Tamil NaduRep. By D.S.P.,Vigilance and Anti CorruptionCity Special Unit - III, Chennai - 600 020....Respondent/ComplainantPRAYER:Appeal filed under Section 374(2) of the Code of CriminalProcedure read with 27 of the Prevention of Corruption Act to setaside the conviction and sentence passed against theappellant/accused in the Judgment dated 11.11.2003 made in C.C.No.4of 2000 on the file of the IV Additional Sessions Cum Special Judge, Chennai - 104 and allow this Criminal Appeal. For appellant: Mr.R.Shunmugasundaram Senior counsel for Mr.Govi Ganesan For respondent: Mr.N.KumananGovernment Advocate (Criminal side)J U D G M E N TThe first accused who was convicted for offence punishableunder Section 7 and sentenced to undergo six months rigorousimprisonment with fine of Rs.500/- in default to undergo one monthrigorous imprisonment and convicted for offence under Section 13(2)read with Section 13(1)(d) of P.C.Act, 1988 and sentenced to under goone year rigorous imprisonment with fine of Rs.500/- in default to https://hcservices.ecourts.gov.in/hcservices/ undergo one month rigorous imprisonment, moves this appeal beforethis Court. The second accused was acquitted by the Trial Court.

On the side of the prosecution, 9 witnesses were examinedand 14 documents and 5 material objects were marked. Fuse CallRegister and page No.71 of the said register were marked as Exs.D1and D2 on the side of the accused.

The sum and substance of the case of the prosecution asreflected from the evidence reads as follows:-a) P.W.2 - Omer Sheriff is serving as the Manager of FahimasJewel House located at Usman Road, T.Nagar, Chennai. On 20.05.1999at about 06.00 p.m., the power supply to the air conditioning plantwas cut off. He contacted Krishnamurthy, the first accused hereinover phone. But he instructed him to come over to the office thenext day morning.b) As instructed, he proceeded to the electricity office at Thanikachalam Road and met the first accused. P.W.2 asked the firstaccused to change the meter box. He demanded a sum of Rs.4,000/- forsupply of the meter box. As the electricity supply was notimmediately restored, P.W.2 got angry and proceeded to the office ofthe Vigilance and Anti Corruption. He met Mr.Ramachandran, the Deputy Superintendent of Police - P.W.8 over there. He prepared thecomplaint Ex.P.3 and P.W.2 subscribed his signature over there.A.Srinivasan, P.W.5 as instructed by the first accused, proceeded to Fahimas Jewel House.

P.W.8 himself introduced to first and second accused andintroduced the witnesses also to them. Both the accused werearrested. Then the second accused was subjected to phenolphthaleintest. Sodium Carbonate solution used for the test was packed inthree bottles viz., M.O.2, M.O.3 and M.O.4. The aforesaid materialobjects were recovered under mahazar Ex.P.7 in the presence of P.W.3and P.W.4. e) The currency notes M.O.1 were also recovered underrelevant seizure mahazar. f) Mr.Murugesan, P.W.9, the Deputy Superintendent of Policeattached to Vigilance and Anti Corruption Department took up the casefor further investigation in this matter. He examined the witnessesand recorded their statement. g) P.W.7, Kasthuri Bai, who analyzed the material objectsM.Os.2 to 4, has returned a finding that Phenapthalin SodiumCarbonate elements were found in the material objects sent forchemical examination. The report submitted by him was marked asEx.P.11. h) Mr.Ramachandran, P.W.1, gave sanction for prosecutionhaving gone through the materials collected by the InvestigatingAgency.

Per contra, the learned Government Advocate (Criminalside) would strenuously submit that the demand and acceptance wereamply demonstrated before the trial Court through the evidence ofP.W.2 and P.W.3. It is his submission that there is no reason fordemanding Rs.4,000/- for purchasing a new meter box, which cost lessthan Rs.900/-. As regards discrepancy with respect to thephenolphthalein test conducted immediately after the receipt of theamount, he would submit that P.W.4 the mahazar witness hascategorically spoken to the fact that the second accused alone wassubjected to the test and not the first accused. Referring to thestatement given by the first accused under Section 313 Cr.P.C., hewould submit that he had come out with a total denial of receipt ofany money. In the written submission also, the first accused cameout with a different story. Referring to the evidence of P.W.6 hewould submit that the shortage of supply of meter box had ceased sixmonths prior to the occurrence. Therefore, there would have been nooccasion for the first accused to demand money for fixing a meter atthe premises of the P.W.2, he contends.

The fact remains that the P.W.2 has turned hostile withrespect to the demand of bribe made by the first accused for givingdirect connection and restoration of electricity. It is hiscategorical version that only for the purpose of purchasing a newmeter box, a sum of Rs.3,000/- was paid during the course of trap. Therefore, the foundation made by the prosecution that there was ademand of bribe for the purpose of giving direct connection andrestoration of electricity is found shaking. Further, P.W.2 has alsogiven a go-by to the case of the prosecution found in the complaintlodged by him that the money was demanded only for direct connectionand restoration of electricity. https://hcservices.ecourts.gov.in/hcservices/

P.W.6 is a Commercial Inspector who is in-charge ofstores. It is his version that there had been shortage of supply ofmeter box to the Department six months prior to the occurrence. Though P.W.6 has not specifically stated that there was no shortsupply on the date of occurrence, we can easily presume that the Department had faced short supply of new meter box. At any rate, theprosecution cannot traverse beyond the evidence of P.W.2 who wouldstate that only for the purpose of purchasing new meter box, theamount was demanded and paid. The trap witness P.W.3 also has lentcorroboration to the evidence of P.W.2 with respect to the version ofP.W.2 that the money was paid for the purpose of purchasing a newmeter box. His testimony with regard to the fact that the money waspaid for purchasing of new meter box was not subjected to crossexamination by the Investigating Agency, though he was treated ashostile later and cross-examined.

The prosecution has come out with the case that the firstaccused never handled the money. But the evidence let in on the sideof the prosecution indicates a contrary story. P.W.3 is verycategoric that the first accused handled the money and therefore, hishands were subjected to the Sodium Carbonate solution test. He goesa step further to fortify such a version that the Sodium Carbonatesolution, which was used for dipping the hands of the first accused, was collected in one bottle. P.W.4, panch witness, would accountonly for two bottles. Part of the chief examination of P.W.3 wasover on 02.11.2001, the prosecution which had been very alert sensingthe tendency of P.W.3 abruptly stopped the chief examination portionand continued the chief examination and subjected him on hisexhibition of hostility, to cross examination only on 20.11.2001,after about 18 long days. During the course of cross examination, after treating him hostile, of course, P.W.3 would state that thefirst accused hand was not dipped in the Sodium Carbonate solutionprepared for test at the office of the first accused. Such acontradictory version of P.W.3, in fact, cast a cloud on the case ofthe prosecution, with respect to Sodium Carbonate solution test, conducted on the accused in the presence of P.W.3 and P.W.4.

The learned Government Advocate (Criminal side) wouldappeal to the Court to go by the evidence of P.W.4, with respect tothe seizure of three bottles which contained the Sodium Carbonatesolution. It is not the case of the prosecution that P.W.3 was notpresent when the Sodium Carbonate test was conducted immediatelyafter the occurrence. It is also the case of the prosecution thatP.W.3 also subscribed his signature as one of the witnesses to theseizure mahazar. To top it all, P.W.3 also has spoken to the entireproceedings that transpired in the office premises of the firstaccused. Further P.W.4 also has come out with a nebulous version asto the number of bottles, in which the Sodium Carbonate solution wascollected. https://hcservices.ecourts.gov.in/hcservices/

It is true that the version projected by the firstaccused through his answer to the questionnaire put to him under Section 313 does not fall in line with the evidence of P.W.2 that theamount was collected for the purpose of purchasing a new meter box. The accused may take different stands at different stages, in orderto riggle out of the complicity in the crime alleged against him. Thecontradictory stand taken by him will not give rise to anypresumption that he accepted not the version of the hostile witnessP.W.2.

The Honourable Supreme Court in Gulam Mahmood A. MalekVs. State of Gujarat reported in 1981 SCC (Cri) 568 observed asfollows: ".......... The High Court based the convictionmainly on the ground that the marked notes wererecovered from the person of the accused and thatpanch witness has spoken to the recovery of the money. In assessing the evidence of a witness the entirebackground of the prosecution story should be kept inmind. It is seen the complainant has no regard fortruth and his preferring a false complaint aboutpayment of bribe on July 7, 1972 and making thepresent complaint after ten days of the alleged demandcannot be ignored. In the circumstances, we do notthink that it was safe for the High Court to base theconviction solely on the testimony of the panchwitness. ......."

Similar is the situation prevailed in the case on hand. The evidence of P.W.2, who has come out with a totally contradictoryversion, supporting not his version in the complaint persuades this Court to believe that he is not a truthful witness at all. Thepayment of money by P.W.2 was not towards bribe, but towards fixing anew meter box has been categorically spoken to P.W.2 during thecourse of evidence, taking a total departure from his case in thecomplaint. The foundation made by the prosecution has been completelyshattered by P.W.2. The prosecution has built up the superstructurewith the evidence of trap witnesses viz., P.W.3 and P.W.4. Meredemand of money and acceptance of the same will not constitute anoffence under the Prevention of Corruption Act. The demand of moneyby first accused has been accounted properly by P.W.2 himself. Inview of the above facts and circumstances, this Court finds that itis totally unsafe to refer conviction solely based on the panchwitnesses in this case.

The Honourable Supreme Court in State of Andhra PradeshVs. M.Radha Krishna Murthy reported in 2009 (2) Crimes 14 (SC) hasobserved as follows: https://hcservices.ecourts.gov.in/hcservices/ "5. On a bare reading of the judgment in Hari DevSharma's case (supra), it is clear that no rule ofuniversal application was laid down that whenever apart of the case relating to demand and acceptance isnot acceptable, the whole case would fail even if thecase relating to trap, recovery of money and chemicaltest by the prosecution is established. When part ofthe prosecution version relating to demand andacceptance of bribe stands by itself, the ratio of thedecision does not apply. Unfortunately, in theinstant case the High Court has lost sight of theaforesaid aspects and by placing reliance on theaforesaid decision has directed acquittal. "

That was a case, where the accused first received a sumof Rs.2,000/- as gratification, and the balance amount of Rs.2,000/-was received by him as bribe when the trap was laid. In that case, the High Court, having observed that the first vital part of theprosecution version that a sum of Rs.2,000/- was earlier paid andaccepted by the accused was not proved, disbelieved the subsequentpart of the prosecution story as regards demand and acceptance ofmoney and laying of trap. In such circumstances, the HonourableSupreme Court has held that just because a part of the case was notestablished by the prosecution, there is no universal rule that theother part of the prosecution case, which was well established, should be thrown away. Therefore, the above ratio does not apply tothe facts and circumstances of the case.

The learned Government Advocate (Criminal side) wouldcite yet another authority in T.Shankar Prasad Vs. State of AndhraPradesh reported in 2004 (3) SCC 753. In a similar case, a belatedplea was taken by the accused that he did receive the amount, but thesaid amount was received towards tax. The plea of such a defence wasrejected in the said case as the said plea was taken up belatedly andthere was no tax due on that date payable by the accused. Further, in the said case, there was acceptable evidence to show that thefirst and second accused cleverly managed to invent a device tosystematically collect money. In this case, the second accused, fromwhose possession the money was collected was set free by the trialCourt. P.W.1 has completely left the prosecution in the lurch duringthe course of trial inasmuch as he has come out with a different casethat the amount was paid only for purchasing meter box. This Courtis confronted with not the belated plea of the accused, but theconcrete version of P.W.2 during the course of trial of the case. Therefore, this Court finds that the above ratio is factuallydistinguishable. https://hcservices.ecourts.gov.in/hcservices/

P.W.1 is the authority for sanctioning prosecution. Hecomes out with a dramatic reply during the course of crossexamination that had Ex.D1 - the Fuse Call Register been brought tohis notice at the time of according sanction he would have refused togive sanction.

In this context, the learned Government Advocate(Criminal side) referred to a decision in State by Police InspectorVs. T.Venkatesh Murthy reported in 2004 SCC (Cri) 2140 wherein, ithas been held as follows: "14. In the instant case neither the trialcourt nor the High Court appear to have kept in viewthe requirements of sub-section (3) relating toquestion regarding "failure of justice". Merelybecause there is any omission, error or irregularityin the matter of according sanction, that does notaffect the validity of the proceeding unless the courtrecords the satisfaction that such error, omission orirregularity has resulted in failure of justice. Thesame logic also applies to the appellate or revisionalcourt.........."

Mere irregularity in according sanction or certainomissions committed by the sanctioning authority would not alwaysnullify the sanction accorded by the authorities concerned. If theaccused is prejudiced and failure of justice ensued on account ofsuch material omission or irregularity committed by the sanctioningauthority, the sanction accorded will have to be treated as anullity.

In the case on hand, the fate of the accused would havebeen totally different, even according to the evidence of P.W.1, thesanctioning authority in this case had Ex.D.1 been produced beforehim. Great injustice had been committed to the accused as therelevant document Ex.D.1 was not seized by the Investigating Officialand produced before the sanctioning authority for his consideration. Under such circumstances, the Court will have to hold that thesanction is tainted with irregularity.

Considering the above facts and circumstances of thecase, this Court finds that the prosecution has miserably failed toestablish that the first accused did commit the offences punishableunder Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

Therefore, the conviction recorded under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo six months rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment with fine of Rs.500/- in default to undergo one monthrigorous imprisonment under section 7 and one year rigorousimprisonment with fine of Rs.500/- in default to undergo one monthrigorous imprisonment under Section 13(2) read with Section 13(1)(d)of the Prevention of Corruption Act, 1988, respectively, imposed onthe first accused by the Trial Court stands set aside and the appealis allowed. The bail bond, if any, executed by the first accusedshall stand annulled. The fine amount, if any, paid by the firstaccused shall be refunded forthwith. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarTK.To1.The IV Additional Sessions Cum Special Judge Chennai – 104.2. -Do-Thro The Principal Sessions Judge, Chennai. 3. The Deputy Superintendent of Police Vigilance and Anti Corruption City Special Unit - III, Chennai - 600 020.4.The Public Prosecutor High Court, Madras. 2 ccs To Mr.K.Govi Ganesan, Advocate, SR.29094, 28793Crl.A.No.1690 of 2003PKB(CO)SRA(21/7/2009)