IN RE: R SIVARAJ Vs. STATE

JUDGEMENT

(1.) This criminal appeal has been filed by R. Sivaraj alias R. Sivarajan alias R. Ananth, the accused in Special C.C. No. 1 of 1978 before Special Judge (Chief Judicial Magistrate of Coimbatore and the Nilgiris), Coimbatore, against his conviction, as charged, of an offence punishable under Section 161, I.P.C., and also of one punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. 1947, and the sentence of rigorous imprisonment for one year awarded under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, without awarding any separate sentence for the offence punishable under Section 161, I.P.C.

(2.) The case of the prosecution was as follows :

(3.) At the Travellers' Bungalow, P.W. 1 found the Deputy Superintendent of Police, Vigilance, with the Inspector, Velliangiri (P.W. 5), and some others. He made a report which was reduced into writing under Ex. P. 1 by the Head Constable. P.W. 5 obtained the orders of the Superintendent of Police, Vigilance, and registered a case in Crime No. 7/VAC/77 and prepared the first information report, Ex. P. 5, and gave a copy thereof to P.W. 1. W. 5 arranged for the witnesses, Gilbert Rajkumar (P.W. 3), Veterinary Assistant Surgeon at Erode, and Radhakrishnan, Assistant Divisional Engineer. P.W. 3 and Radhakrishnan went to the Travellers' Bungalow at Erode on 29-7-1977 at 11 a.m. and they were introduced by P.W. 5 to P.W. 1. The first information report, Ex. P. 1, was given to the witnesses and they perused the same. P.W. 1 confirmed the contents of Ex. P. 1 and also showed P.W. 3 and Radhakrishnan the sum of Rs. 100/- in ten-rupee notes (M.O. 1 series). Then, P.W. 5 explained the phenolphthalein test to P.Ws. 1 and 3 and Radhakrishnan and demonstrated it to them. Later, P.W. 5 smeared phenolphthalein powder on M.O. 1 series and handed them over to P.W. 1 with instructions to pay the money to the accused if he so desired and to give a signal by putting his hands in the pant pockets, in the event of the accused accepting the payment. These things were recorded in the mahazar, Ex. P. 2, at 11 a.m. and it was attested by P.Ws. 1, 3 and 5 and Radhakrishnan, and another Inspector Loganathan. The party thereafter left the Travellers' Bungalow at Erode at 12-30 p.m. by walk and proceeded to the office of the District Medical Officer, reaching there at 12-50 p.m. The party barring P.W. 1 remained outside the compound of that office, while P.W. 1 alone went inside with the money. P.W. 1 met the accused in the office of the District Medical Officer. Then the accused asked P.W. 1 whether he had brought the money with him. P.W. 1 answered in the affirmative and tried to take out the money from his shirt pocket. Then, the accused asked P.W. 1 not to pay the money there and suggested that he might remain at the tea stall situate in front of the Headquarters Hospital and pay it to him when he would be going out of the office for lunch at 1-30 p.m. P.W. 1 accordingly retained the money, returned from the office of the District Medical Officer in about ten minutes and informed P.W. 5 and others as to what happened. P.W. 1 thereafter stationed himself in front of the tea stall situate opposite to the Headquarters Hospital, while others moved away to a suitable place. The accused came out of the office of the District Medical Officer by cycle at about 1-30 p.m. and called P.W. 1 by signalling with his hand. Then, the accused and P.W. 1 proceeded towards the junction of Mettur Road and Idayal Kattu Valasu Road, the accused slowly driving the cycle and P.W. 1 walking along holding the rear portion of the cycle. On reaching the road junction, the accused stopped the cycle and asked P.W. 1 whether he had brought the money. Then P.W. 1 offered the amount to the accused. The accused asked him to give the amount wrapped in a paper. Then, P.W. 1 told the accused that he did not have any paper with him. Thereupon the accused took out a paper from his pocket and tore it into two pieces and gave one piece to P.W. 1 and asked him to fold the money in that paper and give it to him. P.W. 1 did accordingly and the accused received the same and he took out a handkerchief from his pocket and covered up the amount with it and started moving, holding the handkerchief with the money in his hand. Then P.W. 1 showed the pre-arranged signal by putting both his hands in his pant pockets. Thereupon, P.W. 5 and others went to the accused. P.W. 5 caught hold of the accused and questioned him. Then the accused admitted the receipt of the amount from P.W. 1 and attempted to hand it over to P.W. 5 who however, asked him to keep it with him. The accused told P.W. 5 and others that he had not demanded any money and that in spite of his refusal to accept the same, P.W. 1 gave it to him and requested him to get him a job. The accused also told P.W. 5 that he was treated with respect in that area and that he might be taken to the Travellers' Bungalow and nowhere else. A crowd had collected at that place by then. Radhakrishnan (P.W. 3) also endorsed the suggestion of the accused for being taken to the Travellers' Bungalow, and the party including the accused proceeded to the Travellers' Bungalow. After reaching the Travellers' Bungalow, P.W. 5 asked the accused to place the money folded in the handkerchief on the table. The accused did so. Then the phenolphthalein test was conducted by P.W. 5 and the accused was asked to dip his fingers in one of the tumblers containing sodium carbonate solution and the solution turned slightly pink. The handkerchief was immersed in another tumbler containing sodium carbonate solution and the solution turned pink. The currency notes, which had been wrapped in the handkerchief, tallied with the currency notes with respect to the details mentioned in the mahazar Ex. P-2 referred to above. The accused was asked to produce the other piece of paper from his pocket and he took out that piece of from his pocket and that paper and the paper in which money had been folded were found to form parts of one sheet of paper. M.O. 3 is the handkerchief, and M.O. 2 series are the two pieces of paper. At that stage, the accused stated that he was feeling giddy, and so he was allowed to rest for a while. The mahazar Ex. P. 4 was prepared about what happened in the Travellers' Bungalow, including the seizure of M.O. 1 series, M.O. 2 series and M.O. 3. The accused was arrested by P.W. 5 at 2-30 p.m. on that day, and thereafter P.W. 5 examined P.Ws. 1 and 3 and Radhakrishnan and recorded their statements. Subsequently, P.W. 5 took the accused to Coimbatore at 9 p.m. and kept him in the police station. On the next day 30-7-1977, the accused, the properties and the mahazars were sent to the Court by P.W. 5. P.W. 5 examined P.W. 2, the Lay Secretary, and P.W. 4, the General Secretary of the Association, on 1-8-1977. P.W. 5 has stated that after obtaining the sanction from the competent authority, he filed the charge-sheet on 17-1-1978 against the accused for an offence under Section 161, I.P.C., and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act.