N GUNASEKARAN Vs. STATE

JUDGEMENT

(1.) THE accused Nos. 1 and 2 in Special C.C. No. 5 of 1994 on the file of the I Additional District and Sessions Judge cum Chief Judicial Magistrate, Coimbatore, who were prosecuted, found guilty and convicted for offences punishable under Sections 7 and Section 13(2) read with Section 13(1 )(d) of the Prevention of Corruption Act, 1988 and punished with rigorous imprisonment for a period of one year and a fine of Rs. 1,000/- with a default sentence of two months rigorous imprisonment in respect of each one of the charges, have come forward with the criminal appeal Nos. 779/1997 and 770/1997 respectively, challenging the conviction and sentence. Similarly, the third accused in the above said Special C.C, who was prosecuted for offences punishable under Section 12 of the Prevention of Corruption Act, 1989 read with Section 109 Cr.P.C and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- with a default sentence of rigorous imprisonment, in case of default in payment of fine, has brought forth C.A. No. 771 of 1997 challenging his conviction and the sentence imposed by the trial Court.

(2.) THE prosecution case, in brief, can be stated as follows:- (i) P. W. 1 - Ramaraj started producing mineral water at Coimbatore to be marketed in the name of Aqua Valley Pure Mineral Water by mixing minerals with Siruvani water. For the said purpose, he got the property bearing door No. 19, THEndral Nagar, Veerakeralam for rent from one Ambujammal in the month of January 1993. He installed machines for cleaning the bottles to be used in the mineral water business. He had also applied to the Sales Tax department for manufacturing and marketing mineral water. Meanwhile, public in Coimbatore conducted a protest rally against another mineral water manufacturer in Coimbatore. THErefore, P.W.1 dropped his idea of manufacturing mineral water at Coimbatore and decided to have the manufacturing plant at Kottathurai in Solaiyur panchayat in Kerala state. THEreafter, the building bearing door No. 19, THEndral Nagar, Veerakeralam was proposed to be used for stocking the mineral water bottles. He was supplied with 8,000 PVC bottles by P.V.C Plast Limited, Ahmedabad on 30.7.1993. As a bad odour emanated from the bottles, P.W.1 started the work of cleaning the bottles on 1.8.1993 by engaging eight women from the area. Four days thereafter, he made 500 to 600 bottles to be filled up with Siruvani water to find whether any such bad odour emanated. (ii) On 6.8.1993 at about 11.00 a.m, the first accused and about ten persons employed in his office (Veerakeralam Panchayat) went to the above said address, seized 400 bottles filled with Siruvani water and 2000 empty bottles on the premise that complaints were received by the Collector to the effect that mineral water was being manufactured in the said premises without proper permit or license and that as per the Collector's instructions, he conducted an inspection and found the same to be true. Not accepting the contention of P. W. 1 that he was not manufacturing mineral water in the said address and that he was manufacturing mineral water only in Kerala, the said articles were seized by the first accused. In addition to that the drinking water connection given to the said building was also disconnected. THE building was also sealed. (iii) THEreafter, P.W.1 - Ramaraj and his friend Sundarasamy (P.W.3) met the first accused at about 3.00 p.m on 6.8.1993 and explained that P.W.I was not manufacturing mineral water in the said place. THE first accused demanded a sum of Rs. 15,000/- for returning the articles seized from the above said premises. THE first accused also informed P.W.1 that in case a sum of Rs. 15,000/- was paid to him he would get permission/license to manufacture mineral water in the above said address itself. He also promised to return the photographs taken at the time of raid, if his demand for payment of Rs. 15,000/- was met with. Again on 9.8.1993, P.W.1 met the first accused and informed him that he could not afford to pay a sum of Rs. 15,000/-, pursuant to which the first accused reduced his demand by Rs. 2,000/- and demanded payment of Rs. 13,000/-. THE first accused also caused a threat to P.W.1 that he could not do his business without paying the amount demanded by him as bribe. THEreafter, the first accused enquired P.W. 1 whether he had brought money, which was answered in the negative. THEn the first accused compelled P. W. 1 to give two cheques (marked as M.Os. 1 and 2) without naming the payee for a sum of Rs. 3,000/- and Rs. 2,000/- respectively. THE first accused then asked P.W.I to make the payment of Rs. 13,000/-at the residence of the third accused Krishnan Kutti before 10.00 p.m. on 13.8.1993. THE first accused also informed P.W.1 that the first and second accused would come to the residence of the third accused Krishnan Kutti to receive the said amount and that they would return the cheques and the seized bottles etc., on payment of the above said amount by P. W. 1. (iv) As P.W.1 did not have ready cash, at his request, P.W.3-Sundarasamy arranged the said amount to be paid to the first accused. After arranging the said amount, P. W. 1 engaged a lorry to bring the seized bottles. THEreafter, P.W.1 had a second thought, as a result of which, he lodged a complaint under Exhibit P-2 to the Inspector of Police, Vigilance and Anticorruption wing, Coimbatore at about 5.30 p.m. on 13.8.1993. P.W.18 K.K.Krishnan, the then Inspector of Police, Vigilance and Anticorruption wing, Coimbatore prepared Exhibit P-3 - First Information Report and registered a case in Cr. No. 2/93/AC/CB. THEreafter P.W.I was asked to leave the Vigilance and Anticorruption office and come back at 7.00 p.m.. When P.W. 1 went there at 7.00 p.m. along with a sum of Rs. 13,000/-, P.W.18 - Inspector of Police, Vigilance and Anti corruption had invited Raveendran (P.W.2) and one Kantian to be the witnesses. In the presence of the said witnesses a demonstration was made as to how phenolphthale in test is conducted in trap cases. THE amount brought by P.W. 1 consisted of 130 notes of 100 rupees denomination. P.W.18 - Inspector of Police caused the said currency notes coated with phenolphthalein powder after noting the serial numbers of the currency notes in Exhibit P-4 - Mahazar prepared in the office of P.W. 18, bundled into two bundles (one consisting of 100 notes and other consisting of 30 notes) and re-entrusted the same to P.W.1 with instructions to give the same to the first accused Mahalingam only if he demanded it. THEreafter, the lorry engaged by P.W. 1 was also brought to the office of the Vigilance and Anticorruption wing. P.W.2 - Raveendran was asked to accompany P.W.1 and note the happenings. All of them along with the police party, then went to P.W. 1's go- down at THEndral Nagar. After reaching the said place, P.Ws. 1 and 2 alone were directed to go to the residence of the third accused Krishnan-Kutti. When they went to the residence of Krishnan-Kutti, there was drizzling. THE son of A3 (Krishnan-Kutti) welcomed them and informed them that his father wanted them to wait for his arrival. Within 10 minutes thereafter, the third accused Krishnan Kutti came there. As he was wet with rain water, he went inside to change his clothes. A3 informed him that A1 would not come as it was raining and A2-Gunasekaran alone would come with the cheques and keys and that P.W. 1 could get the cheques from A2 on making payment of a sum of Rs. 13,000/-, whereupon the second accused would break the seal and open the door of the go down enabling (P.W. 1) to take his articles. For a query made by A3, P.W.1 informed him that Reveenderan was a manager in his company manufacturing mineral water in Kerala. (v) As it was still raining, A3 sent an auto to bring A2. Ten minutes later, A2 - Gunasekaran came there in the auto. On his arrival, A2 asked P.W. 1 to make payment of Rs. 13,000/- and take all 1 the articles in the lorry except a few bottles and the sterilizing machine to be kept in a room. At that juncture, P.W. 1 reminded him that earlier he was informed he could take all the goods after making such payment. At that juncture A2 said that he was acting on the instructions given to him and if at all P.W.1 wanted any change, then he should meet A1 and discuss the same with him. THEreafter, P.W.1 along with P.W.2-Raveendran, A2 - Gunasekaran and A3 - Krishnan Kutti proceeded in the very same auto to the residence of the first accused. THE police party also followed them as per the signal given by P.W.1. At about 12. midnight, P.W.1, P.W.2 - Raveendran along with the second and third accused reached the house of A1. Though the second accused alone went inside the house, came out and informed that P.W. 1 alone was asked to come inside, P.W. 1 and P.W.2 Raveenderan went inside. A2 - Gunasekaran and A3 - Krishnan Kutti also entered the house. P.W.2 - Raveendran was introduced as the Manager of Kottathurai Mineral Water Company. When the first accused asked P.W.1 whether he had brought the money, he took out the two bundles of cash coated with phenolphthalein powder, one containing Rs. 10,000/- and the other containing Rs. 3,000/-, and handed them over to the first accused. First accused received the same using both hands, kept the bundle containing Rs. 10,000/- for himself, handed over the other bundle containing Rs. 3,000/- to A2-Gunasekaran and informed P.W.1 that he could take all items of property seized. However, he informed A2 - Gunasekaran to hand over photographs and the cheque for the sum of Rs. 3,000/- alone along with all other articles and retain the cheque for the sum of Rs. 2,000/- alone. (vi) At that juncture P. W. 1, in the pretext of answering natural's call, went out and gave a signal to the police as per the pre-arrangement by lighting the torch light he had kept in his scooter. THEreafter, P.W.18-the Inspector of Police rushed into the house of A1, conducted phenolphthalein test for the hands of A1 and A2, recovered the amount paid as bribe, namely M.0.6 series and arrested Accused 1 to

(3.) THE trial judge heard the arguments advanced on either side, considered the evidence brought before him in this case in the light of the points urged in such arguments and upon such consideration, came to the conclusion that the prosecution proved the charges beyond reasonable doubt, convicted the accused and imposed sentence, as cited supra, in the judgment of the trial Court dated 22.9.1997.