K SARAVANAN Vs. STATE

JUDGEMENT

(1.) CRIMINAL Appeal preferred against the judgment passed by the learned Special Judge, Vellore, in S. C. No. 1 of 1993, dated 28. 4. 2000. This CRIMINAL Appeal is directed against the conviction of the accused for the offences under Sections 7 and 13 (1) (d) r/w 13 (2) of the prevention of Corruption Act, 1988 and sentence imposed thereon to undergo two years rigorous imprisonment and to pay a fine of Rs. 3,000/= in default to undergo rigorous imprisonment for four months.

(2.) THE brief facts of the case are as follows: - (a) THE accused is a Junior Engineer at Paratharami electricity Board Office. P. W. 2 belongs to the same place having 2 acres of land and a well. He has installed a pump set in his well. Under Ex. P. 2, he applied for obtaining Service Connection to his motor. P. W. 9, the then executive Engineer, issued Ex. P. 3 Green Form directing him to attend the TNEB's office at Paratharami by 18. 11. 1991 with relevant documents in connection with his request for service connection. On 18. 11. 1991 the P. W. 2 met the accused and produced Ex. P. 4 application, Ex. P. 5, Electric Motor Bill issued by P. W. 7 and ex. P. 6 VAO's certificate and Ex. P. 7 rough sketch of the well and Ex. P. 8 Kist receipt standing in his name. THE accused received them, put his initial in ex. P. 4 and demanded a bribe of Rs. 1,500/= to give service connection in three days. Again on 3. 12. 1991 when P. W. 2 met him, he had reduced the bribe rate to rs. 1,000/= and insisted upon payment of the bribe money. P. W. 2 informed this to p. W. 3, a Tailor who came to that office in connection with his service connection matter. THEreafter, P. W. 2 decided to report this matter to the vigilance Office at Vellore. Accordingly a complaint was prepared and on 5. 12. 1999 at 6. 00 a. m. , he along with P. W. 3 went to Vellore. (b) At Vellore at about 9. 45 a. m. , they met P. W. 11 inspector of Police and lodged Ex. P,9 Complaint with him. When asked P. W. 2 informed him that he had brought ten numbers of Rupee 100/= notes. P. W. 11 had registered a case and Ex. P. 27 is the printed FIR. Ex. P. 10 is the signature of p. W. 2 in Ex. P. 27. P. W. 11 sent Ex. P. 28 requisition summoning two official witnesses viz. , P. W. 4 Govindaraj, a Cooperative Sub Registrar, and Ramamurthi, deputy Commercial Tax Officer who has not been examined. Accordingly, they have attended the office of P. W. 11 at 10. 00 a. m. , P. W. 11 shown Ex. P. 27 to them and they enquired about the same with P. W. 2. P. W. 11 received the said Rs. 1000/= (M. O. 1 series) and shown to P. w. 4 and Ramamurthy. P. W. 4 noted the serial numbers in the currency notes in a paper. P. W. 11 took fresh water in a glass tumbler and prepared Sodium Carbonate mixture. When P. W. 4 dipped his fingers into the mixture there is no change in the water. P. W. 11 then applied phenolphthalein powder to M. O. 1 rupee notes. AS requested, P. W. 4 counted M. O. 1 notes and thereafter dipped his fingers into the mixture. THE mixture turned pink colour. M. O. 4 is the mixture. THE Sodium Carbonate Powder and Phenolphthalein powder were collected in separate covers marked as M. Os 2 and 3. P. W. 11 gave p. w. 2 the Phenolphthalein applied rupee notes and asked him to keep them in his pocket separately and requested him to give the notes to the accused when he demands and he also requested to take Ramamurthy along with him and introduce him as his uncle to the accused. He also told P. W. 2 when they reach the office of the accused he and Ramamurthy will enter the said office and if he demands bribe money give him M. O. 1 money and come out of the office room and signal by rubbing his face. P. W. 11 prepared Ex. P. 12 Mahazar as to the above conducted in his office. (c) P. Ws 2 to 4, 11 and Ramamurthi and Police party left vellore for Paratharami at 11. 30 a. m. , THEy reached there at 2. 00 pm. , P. Ws 2,3 and Ramamurthi went to the office of the accused and waited for him. At 4. 30 pm. , P. W. 2 and Ramamurthi entered the office room of the accused. P. W. 3 was standing out nearby. P. W. 2 introduced Ramamurthi to the accused as his uncle. When the accused demanded P. W. 2 he gave him M. O. 1 rupee notes. THE accused had counted the rupee notes and put into his left table drawer. THEn, as directed by the accused P. W. 6 Foreman Kasi Viswanathan obtained signature of P. W. 2 in ex. P. 15 Readiness Register and also made entries in Ex. P. 16. P. W. 2 and ramamurthi came out of the office and signalled to P. W. 11. THEn P. Ws 11, 4 and the Police party rushed into the office room of the accused. P. W. 2 shown to p. W. 11, the table drawer where the accused kept M. O. 1 rupee notes. P. W. 11 and the Police party caught hold of both his hands. P. W. 11 prepared Sodium carbonate Mixture and dipped the right hand fingers of the accused. It turned out pink colour. In the second mixture his left hand fingers has been dipped into and it also turned pink. THE bottles containing the mixture in which the accused had put his left and right fingers were sealed by P. W. 1 and affixed the labels on the bottles and obtained the signatures of P. WS 4, Ramamurthi and signed in it. THE accused then opened the table drawer and produced M. O. 1 rupee notes and the serial numbers of the rupee notes tallied with the number already noted by P. W. 4. THE rupee notes were seized under Ex. P. 13 mahazar in the presence of P. W. 4 and Ramamurthi and also obtained the signature of P. W. 6 foreman Kasi viswanathan. He also seized Ex. P. 15 Readiness Register from him. (d) P. W. 11 left with P. W. 4 Ramamurthy and the accused. After prior intimation to the CJM, Vellore, he searched the house of the accused and nothing incriminating was recovered. P. W. 11 produced the seized items on 6. 2. 1991 under Form No. 95 to P. W. 10, the then Headclerk of the Court with Ex. P. 25 requisition to send M. O. 2 to M. O. 6 to Chemical Examiner. THEreafter, P. W. 12 Inspector Durairaj taken up further investigation. P. W. 5, assistant Director of Forensic Sciences Department, Chennai, received the case properties and examined them. THEy were found to be sodium Carbonate and the powder in the envelope was found to be Phenolphthalein. When the phenolphthalein powder mixture in which the accused dipped his fingers was washed with sodium Carbonate mixture, the mixture turned pink colour. sent ex. P. 14 Chemical Report. P. W. 12 further examined the witnesses examined by p. W. 11. He seized the trip-sheet from the Driver Devaraj, who drove the Jeep. He seized Ex. P. 18 to 24 from P. W. 9 Nachimuthu an E. B. official. (e) P. W. 1, Superintendent Engineer, ENEB, examined the case records and after having satisfied himself, issued Ex. P. 1 sanctioning order for prosecuting the accused for offences under Section 7 and U/s. 13 (1) (d)read with 13 (2) of the Prevention of Corruption Act. After completion of investigation he laid the final report and sent it to his Head Office. (f) Before the learned Special Judge, Vellore, on behalf of the prosecution, P. Ws. 1 to 12 were examined and Exs. P. 1 to P. 29 and M. Os 1 to 6 were marked. On behalf of the accused, one Jagadeesn, Executive Engineer was examined as witness and Exs. D. 1 to D. 3 documents were produced. When the accused was questioned under Section 313 Cr. P. C. , with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same as false. (g) On a consideration of the oral and documentary evidence, the learned Special Judge, Vellore, came to the conclusion that the offence alleged against the accused 7 and U/s. 13 (1) (d) read with 13 (2) of the prevention of Corruption Act, 1988 are proved and convicted the accused for offences under Section 7 to undergo rigorous imprisonment for one year, and under Sections 13 (1) (d) read with 13 (2) to undergo rigorous imprisonment for two years besides imposing a fine of Rs. 1000/= and Rs. 2000/= respectively and in default to undergo further imprisonment for three months and four months respectively. Aggrieved over the same, this Criminal Appeal has been preferred.

(3.) AS regards the payment of money by P. W. 2 to the accused, the versions of P. W. 2 and P. W. 3 are contradictory to each other. According to P. W. 2, in the chief examination, he has stated that he gave the money to the accused who counted the ten hundred rupee notes and thereafter he placed the money in his table drawer. But according to P. W. 3, when P. W. 2 offered the money, the accused did not receive it but asked him to place it in the table drawer. This assumes importance because if the accused has not received the money and the money was dropped in the table drawer then one has to question as to why both the hands of the accused when dipped in Sodium carbonate Solution, it turned pink in colour. The answer is in Exs. P. 12 and p. 13 mahazars itself. In Ex. P. 12 mahazar it is stated that after demonstration of Phenolphthalein powder and Sodium Carbonate Solution test to the prosecution witnesses who are P. Ws 2, 3 and 4, they have washed their hands. But, there is no allegation or averment in Ex. P. 12, Mahazar that P. W. 11, Inspector of Police washed his hands. In Ex. P. 13, it is specifically stated that the Police party including P. W. 11 caught hold of both the hands near the wrist of the accused and only thereafter the Phenolphthalein powder and Sodium Carbonate Solution test was conducted. In this connection we have to find out what is the necessity for P. W. 11 and the Police party to catch hold of both the hands of the accused. If the Police wanted to arrest the accused, it is enough if they simply inform the arrest or symbolically touch the body of the accused. Section 46 of the Code of Criminal Procedure deals as to how arrest should be made. It reads as follows:- "46. ARREST HOW MADE:-- (1) In making an arrest the police Officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such Police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. "