BAIL ORDER CA NO. 506/01 v. State

BAIL ORDER CA NO. 506/01The Appellant/Accused was directed to be released on bail bythe order of this Court dated 25.06.2001 and made in CRL MP No.3616/01IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 04.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.506 of 2001R.Subbiah .. Appellant/accusedvs.State rep by Inspector of Police,Vigilence and Anti CorruptionThanjavur(Cr.No.7/99)ofVigilance& Anti CorruptionNagapattinam ..Respondent/Complainant This Criminal Appeal has been preferred against the judgmentpassed by the learned Special Judge(Chief Judicial Magistrate)Nagapattinam in C.C.No.1 of 2000 dated 28.05.2001.For Appellant : Mr.S.Ashok Kumar Senior Counsel for Mr.K.SasidharanFor Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor.JUDGMENTThis appeal has been preferred against the Judgment inC.C.No.1 of 2000 on the file of the learned Special Judge(ChiefJudicial Magistrate)Nagapattinam.2. The short facts of the prosecution case is that on30.8.1999 at about 7.45 p.m., the accused had demanded andreceived Rs.1,500/- by way of bribe for issuing the land valuationcertificate in favour of one Ummal Fazria and that he had committedan offence under Section 7 and 13(1)(d) r/w 13(2) of Prevention ofCorruption Act, 1988(hereinafter referred to as "the Act"). https://hcservices.ecourts.gov.in/hcservices/

3. After taking cognizance of the offence, the learned trialJudge has issued summons to the accused and on his appearance ,copies under Section 207 of Cr.P.C. were furnished to the accusedand charges were explained to the accused and when questioned,theaccused pleaded not guilty. 4. On the side of the Prosecution P.W.s 1 to 12 were examined.Exs.P1 to P15 were exhibited and M.Os. 1 to 4 were marked.4a. P.W.1 is the Revenue Divisional Officer, Thiruvarur underwhom the accused, the Village Administrative Officer, was working.The material records connected with this case were sent to P.W1,and after perusing the same and after applying his mind to thecharges levelled against the accused, had issued the order ofsanction for prosecution against the accused under Ex P1.4b. P.W.2 is the complainant cum decoy witness. According tohim, P.W.2 is related to one Ummal Fazria who had applied for ancrop loan of Rs.35,000/- in the Indian Bank, Parakathapath Branchand when she went along with P.W.4 , the son of Ummal Fazria to theIndian Bank for the sanction of the loan, the Manager of the saidBank directed them to produce the necessary certificates includingthe land Valuation certificate and accordingly he along with P.W.4went and met the accused and before that they have presented theapplication before the Tahsildar, Valangiman, requesting him toissue land valuation certificate who in turn had affixed his sealand signature and directed them to hand over the same to theVillage Administrative Officer,Subbiah, the accused herein, who haddemanded Rs.1000/- as bribe per Rs 1,00,000/- to the value ofUmmal Fazria's land (who is owning 14 acres of land). Immediately,they returned to their home and four or five days later again theymet the accused and requested him to reduce the demand of bribe.Thereafter, the accused had settled for Rs.1500/- since P.W.4 isnot willing to give bribe to the accused,he returned by saying thaton the following Monday, he will pay the amount demanded by theaccused. Since P.W.4 is not willing to give any bribe amount, he(P.W.4) along with P.W.2 went to the Vigilance and Anti CorruptionOffice, at Nagapattinam and informed them about the demand made bythe accused for furnishing the land valuation certificate to themother of P.W.4. Ex P2 is the complaint preferred by him. Ex P4 isthe copy of the first information report. He had also brought withhim fourteen 100 rupees notes and two 50 rupees notes which werelater made as decoy amount. The Inspector had sent for twoGovernment Servants viz., Ramalingam and Bhaskar and introducedthem to him and also introduced him to them and allowed them toread Ex P2 complaint. He has also prepared Sodium Carbonatesolution and also explained about the importance of the sodiumcarbonate test. The Inspector has also sprinkled phenolpthaleinpowder on the currency notes brought by him(P.W.2). Afterexplaining about the importance of the test and after demonstrating https://hcservices.ecourts.gov.in/hcservices/ the test, the Inspector of Police asked him (P.W.2) to keep thecurrency notes,with denomination of fourteen 100 rupees notes andtwo 50 rupees notes which has been sprinkled with phenolpthaleinpowder with him and further instructed to hand over the decoyamount to the accused only on demand and after the receipt of thebribe amount by the accused to signal the police officials by tyinghis kerchief on his head, as per directions of the Inspector ofPolice, he along with two vigilance Inspectors, trap witnessRamalingam and other police constables and other witnesses likeRajendran and Kuppusamy went to Alangudi Village where the accusedis working as Village Administrative Officer in a van . Afterparking the van from about one furlong away from the office of theaccused, he along with the other teammates went there and found theoffice of the Village Administrative Officer, locked and since theaccused did not turn up till 6.00p.m., in the taluk office, wentAyyampettai where the accused , the Village AdministrativeOfficer's house is situate. The Inspector along with his teammates was also present by that time, he along with his team matesreached Ayyampettai. He along with Ramalingam went to the house ofthe accused at about 7.00 p.m., at that time, the accused waswatching TV. On seeing P.W.2, the accused had invited him andenquired whether he had brought Rs.1500/- as instructed by him.P.W.2 informed him that he had brought the amount of Rs.1500/-demanded by him. The accused enquired about the witness Ramalingam.P.W.2 introduced to him as an Electrician working in his aunt'sshop at Kumbakonam. The accused offered tea to him and witnessRamalingam by taking them to a tea stall run by one Sekar at theBazaar and after taking tea, the accused asked him to follow himand enquired whether he had brought the amount, to which the replywas in the affirmative and informed him that he had broughtRs.1500/- as demanded by him. The accused had received Rs.1500/-to him and asked him to get certificate from his assistant Visu.He would further depose that the amount of Rs.1500/- was the decoyamount which was sprinkled with the phenolpthalein powder at theoffice of the Vigilance and Anti corruption. The accused afterreceiving the amount of Rs.1500/- in both the hands had kept itunder his right hand. Immediately, P.W.2 signalled the policeofficials by tying his kerchief over his head. Immediately theInspector of Police along with his men came there and at that timeon seeking them, the accused tried to put the amount into hispocket which was prevented by the Inspector of Police.Immediately, the accused throw away the amount on the ground.Afterwards, he left the place for a short distance. The Mahazar wasprepared under Ex P6 by the Inspector of Police in which he andother two witnesses have signed. He has also identified M.O.1series as fourteen 100 rupees notes and two 50 rupees notes handedover by him to the accused as a bribe amount. https://hcservices.ecourts.gov.in/hcservices/ 4c. P.W.3 is the trap witness who had also accompanied withP.W.2 on the date of occurrence to the accused. P.W.3 in responseto the call made by the Inspector of Police went to the Vigilanceand Anti corruption Office where P.W.2 was present. The Inspectorof Police had introduced P.W.2 to him and also had shown thecomplaint preferred by P.W.2 to him and asked him to read the same.He was also present at the time of phenolpthalein test wasdemonstrated by the Inspector of Police. He has also corroboratedthe evidence of P.W.2 in other aspects. According to him, he alsoaccompanied him to P.W.2 to the house of Village AdministrativeOfficer,Subbiah/the accused and also corroborates the evidence ofP.W.2 to the effect that on demand of the accused, after taking teanear the tea shop, a sum of Rs.1500/- and on the receipt of thesame by the accused in both the hands kept on his right hand andafter handing over the bribe amount to the accused, P.W.2 hadsignalled the police officials by tying up his kerchief over hishead and on seeing the police, approaching him, the accusedimmediately thrust the amount into the pocket of P.W.2 which wasprevented by the Inspector of Police. Immediately, Sodiumcarbonate solution was prepared and the Inspector of Police askedthe accused to dip his finger in it. When he did so, the colourof the solution turned pink. According to him, on seeing thepolice, the accused had thrown the amount on the ground which wastaken by him as per the instructions of the Inspector of Police andafter verifying the currency notes numbers with that of the numbersnoted in Ex P4 Mahazar prepared at the vigilance and anticorruption office during the demonstration of the sodium carbonatesolution test and found that the numbers in the currency notesrecovered from the accused and numbers noted in Ex P4 Mahazar weretallied. The Inspector of Police has prepared Mahazar Ex P6 forwhat had transpired at the time of trap.4d. P.W.4 is the son of Ummal Fazria who had applied for thecrop loan of Rs.35,000/- in the Indian Bank. He would depose to thefact that for getting necessary certificates for the sanction ofthe crop by the Indian Bank, he brought the Tahsildar and presentedthe application on behalf of his mother and as per direction of theTahsildar he met the Village Administrative Officer on 9.8.1999 andasked for the issuance of land valuation certificate by theTahsildar and also handed over the application containing thesignature and seal of the Tahsildar. The accused had demanded Rs1000/- per Rs.1,00,000/- for issuing the land valuationcertificate. P.W.2 had settled the bribe amount as Rs.1500/- andreturned by saying that they will pay the amount on the followingMonday. Since he is not willing to give any bribe , he requestedP.W.2 to prefer a complaint to the Vigilance and Anti CorruptionDepartment and that he had handed over the power of attorney deed https://hcservices.ecourts.gov.in/hcservices/ and also the no due certificate to the Vigilance and AntiCorruption Department.4e. P.W.5 is the then Tahsildar of Valangaiman. He woulddepose that the Deputy Tahsildar Headquarters has handed over thepowers to refer the application to the Village AdministrativeOfficer and Revenue Inspector and after getting the report from theVillage Administrative Officer and Revenue Inspector and afterverification, the necessary Land valuation Certificate will beissued by the Tahsildar. He would admit that he was interrogated bythe Vigilance Police Officials of Tanjore District by showing thexerox copy of the application filed by P.W.4 Mohamed Nazir. Hewould admit that the headquarters Deputy Tahsildar has endorsed inthe application. 4f. P.W.6 is the then Headquarters Deputy Tahsildar ofValangaiman during the relevant period. P.W.6 and P.W.7 were alsoenquired by the Vigilance Officials. P.W.8 is the Secretary of thePrimary Agricultural Cooperative Bank,Mathur. According to him,P.W.4 had applied for the issuance of "No due certificate" for hismother and after verifying the records, he had issued Ex P7 "No dueCertificate" in favour of Ummal Fazria.4g.P.W.9 has issued Ex P8 certificate certifying that there isno due from Ummal Fazria to Indian Bank, Adavankudi Branch. P.w.10is the Deputy Manager of Indian Bank at the time, when he wasworking as Branch Manager of Adavankudi, Indian Bank. He wouldadmit that Ummal Fazria came to the bank and filed an applicationfor crop loan to the tune of Rs.35,000/- under Ex P9 and that Ex P9application was presented by P.W4, the son of Ummal Fazria and thatunder Ex P10, he has asked him to furnish the necessarycertificates mentioned therein.4h.P.W.11 is the analyst who had analysed the sodium carbonatesolution samples connected with this case sent for analysis inwhich the accused had dipped his fingers. Ex P11 is the analyst'sreport. P.W.12 is the Investigating Officer in this case. He speaksabout the complaint preferred by P.W.2 and also about theregistering of First Information Report under Ex P12 and speaksabout the demonstration of sodium carbonate test in the presence ofthe witnesses secured in this case and also about the signal givenby P.W.2 after handing over the decoy notes prepared at his officeto the value of Rs.1500/- and also about the phenolpthalein testconducted to the accused after the receipt of the bribe amount andalso about the Mahazar prepared under Exs P4 and P6. He has notrecovered any objects under Ex P5 search conducted in the house ofthe accused. He has prepared observation mahazar Ex P13 and alsohad drawn a rough sketch Ex P14. M.Os.2 and 3 are the sodiumcarbonate solution prepared after the trap. After arresting theaccused brought him to the office of the Vigilance Anti Corruptionand had sent the material objects connected with this case to the https://hcservices.ecourts.gov.in/hcservices/ Court. 4i. P.w.13 is the successor of P.W.12 who had took up furtherinvestigation and examined the witnesses and recorded theirstatements and after completing the formalities, had filed thecharge sheet against the accused on 22.10.1999.5. When incriminating circumstances were put to the accused,the accused would deny his complicity with the crime. But he wouldstate as defence that the amount received by him from P.W.2 is onlya tax due. The accused has also examined D.W.1 and exhibited EX D1to D3.6.After going through the oral and documentary evidence, thelearned Trial judge has held that the prosecution has proved theguilt of the accused under Sections 7 and 13(2) read with 13(1)(d)of the Prevention of Corruption Act, 1988 and accordingly convictedand sentenced the accused to undergo Rigorous Imprisonment for sixmonths under Section 7 and also one year Rigorous Imprisonmentunder Section 13(2) read with 13(1)(d) besides a fine ofRs.1,000/-. Aggrieved by the findings of the Trial Judge, theaccused has preferred this appeal. 7. Now the point for determination in this appeal is whetherM.O.1 series Decoy amount of Rs.1500/- was received by the accusedtowards the amount due under revenue(Kist amount) or the same wasoffered by P.W.2 the complainant as a bribe amount for theissuance of Land valuation certificate to P.W.4's mother UmmalFazria?8. Heard Mr.S.Ashok Kumar,learned Senior Counsel appearing forthe appellant and Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor for the State and considered their rival submissions.9. The POINT: The learned Senior counsel appearing for the appellant/accusedrelying on Ex D2 receipt for the land tax for Ummal Fazria preparedby the accused and cancelled on 23.7.1999 and contended that thesaid receipt was cancelled subsequently because P.W.2 had failed topay the tax due under Ex D2 and that on the date of occurrence, he(P.W.2) had paid only the tax due under Ex D2 receipt for UmmalFazria and that he (the accused) has not demanded any illegalgratification for issuance of land valuation certificate in favourof Ummal Fazria to enable her to get crop loan for Rs.35,000/-from the Indian Bank . This contention of the learned Seniorcounsel cannot be upheld because the amount due under Ex D2 isRs.1730/- but the amount demanded and received by the accused wasRs.1500/-. The learned Senior counsel pointing out the depositionof P.W.2 in the cross examination as to his denial even to thereceipt of Ex D2 would contend that the evidence of P.W.2 is to be https://hcservices.ecourts.gov.in/hcservices/ eschewed. But P.W.2 is a decoy witness in this case. He speaks tothe fact that in pursuance of the earlier demand made by theaccused and later settled for a lessor amount of Rs.1500/- onlywith an assurance that he will pay the bribe amount demanded by theaccused on the following Monday he returned and since the son ofUmmal Fazria viz., P.W.4 is also not for getting the necessarycertificate for the sanction of loan in favour of his mother by wayof greasing the palm of accused both P.W.2 and P.W.4 have decidedto prefer a complaint to the Vigilance and Anti Corruptiondepartment and accordingly P.W2 went to the office of the Vigilanceand Anti Corruption Department preferred ExP2 complaint. Therelevant portion of the evidence of P.W.2 in the chief examinationwould prove the demand and acceptance of Rs.1500/- by the accusedfrom P.W.2 towards illegal gratification for issuance of therequired certificate by P.W.2. P.W.2 along with the trap witnessP.W.3 met the accused at his house at about 2.00p.m., on theoccurrence date and on seeing P.W.2, the accused had invited himand on P.W.2 informing the accused that he had brought Rs.1500/- asdemanded by the accused. The accused after enquiring about thewitness Ramalingam(P.W.3) took them to near by tea stall andoffered tea and after taking tea,he enquired P.w.2 after taking himto a distance of about 4 feet from the trap witness and enquiredwhether he had brought the amount demanded by him. ImmediatelyP.W.2 had answered in the affirmative and handed over Rs.1500/- thedecoy amount to the accused which was received by him and aftercounting the same had kept in his right hand . This part of theevidence of demand and receipt Rs 1500/- has been corroborated byP.W.3 the trap witness. If Rs 1500/- received by the accused isonly towards the arrears of land tax due under Ex D2, then theaccused after seeing the police,who came after the signal given byP.W.2, would not have attempted to thrust the amount into thepocket of P.W.2 or throw the same on the ground. This very conductof the accused itself will go to show that the amount of Rs.1500/-received by him from P.W.2 is not the amount of tax due under ExD2receipt.10. The learned Senior counsel would contend that the accusedis not a competent authority to issue the land valuationcertificate and there is no necessity for him to demand Rs.1500/-for the issuance of the land valuation certificate in favour of themother of P.W.4. But it is in evidence that the application for theland valuation certificate was presented by P.W.4 only to theTahsildar who is examined as P.W.6 who in turn had countersigned inthe said application and forwarded the same to the accused, VillageAdministrative Officer for verification. https://hcservices.ecourts.gov.in/hcservices/

11. Under such circumstances, the contention of the learnedSenior counsel relying on a ratio decidenti in T.Subramanian -v-State of T.N(2006)1 Supreme Court Cases(cri) 401) contended thatif the accused offers reasonable and probable explanation basingon evidence that the money was accepted by him, other than as anillegal gratification , then the accused would be entitled toacquittal, cannot be sustainable in the present facts of the case.EX D2 is for Rs.1730/- whereas the amount demanded and received byP.W.2 was Rs.1500/- and as I have observed earlier, that if theamount received by the accused is only for the amount due under ExD2 then there is no necessity for him to thrust the same into thepocket of P.W.2 after seeing the police and also to throw theamount on the ground.12. Yet another ratio relied on by the learned Senior counselis Ramakrishnan-v- State rep. by Inspector of Police, D &VAC,Chennai(2007) 1 M.L.J(cri) 430 will not also be applicable tothe present facts of the case because in the above cited dictum,the prosecution has failed to prove the demand and acceptance ofthe illgotten money. It has been held in the said decision by theJudge of this Court that mere proof of receipt of money byaccused, in absence of proof of demand and acceptance of money asillegal gratification, not sufficient to establish the guilt ofaccused and that once the prosecution failed to prove the same ,the entire prosecution falls into the ground. But in the presentcase on hand, the demand and acceptance of Rs.1500/- has beenproved by P.w.2 the decoy witness and also by P.W.3 trap witness.13. The next point focused by the learned Senior counselrelying on a decision reported in Harchand Singh-v- State ofHaryana(AIR 1974 Supreme Court 344) is that in a case where theprosecution leads two set of evidence, each one of whichcontradicts the other, it is difficult to find the conviction canbe sustained. According to the learned Senior counsel , the chargeframed in this case by the trial Court is that only on theapplication filed by Ummal Fazria for the issuance of landvaluation certificate, for processing the same, the accused haddemanded Rs,1500/- towards bribe. But evidence let in by theprosecution through P.W.2 is that the application for the issuanceof the land valuation certificate was presented by P.W2 and P.W.4which is contrary to the charge levelled against the accused. Nodoubt the trial Court which framed the charge has observed that theapplication for the issuance of land valuation certificate wasfiled by Ummal Fazria. A perusal of the charge sheet filed by theInvestigating Officer will go to show that for getting the loan inthe name of Tmt Ummal Fazria in the Indian Bank, Adavankudi Branch,the bank required the land valuation certificate from the revenueauthorities and for that purpose, Tmt Ummal Fazria's , son Mohamed https://hcservices.ecourts.gov.in/hcservices/ Nazir(P.W.4) and his cousin Mohamed Hanifa (P.W.2) went to theTahsildar, Valangaiman and presented a petition on 10.8.1999 forgetting the land valuation certificate and it is furtherspecifically stated that the petition was sent by Mohamed Nazir(P.W.4) . Under such circumstances, it cannot be said that themistake committed in narrating the facts while framing the chargesby the trial Court will thwart the case of the prosecution. So I amof the view that the prosecution has proved the guilt of theaccused as rightly held by the learned trial Judge.14. Now coming to the conviction and sentence of the accusedby the learned trial Judge under Section 7 and 13(2) r/w 13(1)(d)of the Act, the principle laid down by the Honourable Apex Court inState rep. by Inspector of Police, Pudukottai-v- A.Parthiban(2007 )1 MLJ (cri) 351: 2007(1) SCC(cri)520) wherein it has been held thatconviction under Section 7 and also under Section 13(2) r/w 13(1)(d) of the Act is maintainable but there cannot be a sentenceunder Section 7 as well as under Section 13(2) r/w 13(1)(d) of theAct. The relevant observation of the Apex Court in the above saiddictum runs as follows:"Every acceptance of illegal gratification, whether precededby a demand or not, would be covered by Section 7 of the Act. Butif the acceptance of an illegal gratification is in pursuance of ademand by the public servant, then it would also fall under Section13(1)(d) of the Act. The act alleged against the respondent, ofdemanding and receiving illegal gratification constitutes anoffence both under Section 7 and under Section 13(1)(d) of theAct. The offence being a single transaction, but falling under twodifferent sections, the offender cannot be liable for doublepenalty. But the High Court committee an error in holding that asingle act of receiving an illegal gratification, where there wasdemand and acceptance, cannot be an offence both under Section 7and under Section 13(1)(d) of the Act. As the offence is one whichfalls under two different sections providing different punishments,the offender should not be punished with a more severe punishmentthan the court award to the person for any one of the two offences.In this case, minimum punishment under Section 7 is six months andthe minimum punishment under Section 13(1)(d) is one year and thecourt wants to award only the minimum punishment, then thepunishment would be one year."15. Under such circumstances, following the above ratio, I amof the opinion that the accused even though is liable to beconvicted under Sections 7 and 13(2) read with 13(1)(d) of thePrevention of Corruption Act, 1988 is liable to be punished onlyunder one of the above provision of law ie only under Section 13(2) read with 13(1)(d) to undergo one year rigorous punishment.The point is answered accordingly. 16. In the result the appeal is dismissed confirming theJudgment of the learned Special Judge in C.C.No.1 of 2000 on the https://hcservices.ecourts.gov.in/hcservices/ file of Special Judge(Chief Judicial Magistrate) Nagapattinam. Theaccused is convicted under Sections 7 and 13(2) read with 13(1)(d)of the Prevention of Corruption Act, 1988. But the sentence of theTrial Court alone is modified and the accused is sentenced to oneyear Rigorous Imprisonment under Section 13(2) read with 13(1)(d)of the Prevention of Corruption Act, 1988, instead six monthsRigorous Imprisonment under Section 7 and 1 year RI under Section13(2)r/w 13(1(d) of Prevention of Corruption Act, 1988. The fineimposed under Section 7 of the Prevention of Corruption Act, 1988shall be refunded to the accused, but the fine imposed underSection 13(2) read with 13(1)(d) by the Trial Judge shall sustain.The Trial Court is directed to secure the accused and send him toprison to undergo the unexpended portion of the sentence.Sd/-Assistant Registrar/True Copy/Sub Assistant Registrar.To1. The learned Special Judge(Chief Judicial Magistrate)Nagapattinam.2. The Public Prosecutor, High Court, Madras3. The Inspector of Police, Vigilance and Anti Corruption ,Thanjavur.4.The Inspector of Police,Vigilance and Anti Corruption,Nagapattinam•one cc to Mr. A. Sasidharan, Advocate sr no. 40416NSM(CO)NM(30.07.07)Crl.A.No.506 of 2001