K SIVANANDAM Vs. STATE

JUDGEMENT

(1.) AGGRIEVED over the conviction under Section 7 of the Prevention of Corruption Act, to undergo 6 months imprisonment and to pay a fine of Rs.500/=, in default to undergo 2 months imprisonment and under Section 13(2) red with Section 13(1)(d) of the Prevention of Corruption Act to under go one year imprisonment and to pay a fine of Rs.1000/= in default to undergo three months imprisonment and both sentences to run concurrently, the sole accused has preferred this Criminal Appeal.

(2.) THE brief facts of the case are as follows:- (a) THE accused Sivanandam was working as a Junior Telecom Officer (JTO) in BSNL. P.W.2 who was earlier residing at Mariamman Kovil Street, Korattur, Madras-80, shifted his residence to No.90/7, Samipillai Street, Choolai, Chennai-112. He wanted to shift his Telephone functioning at the previous residence to his new place of residence and therefore he gave an application Ex.P.3 on 27.5.1996 to shift his telephone. Since the telephone was not shifted till 5.7.1996 on 9.7.1996 P.W.1 and requested her to give connection to his telephone and in his presence she talked with some officers over phone and gave instructions. Even thereafter the telephone was not shifted. THErefore P.W.2 went to the Office and met one Narasimman who told that it the accused Sivanandam is the concerned JTO and he asked him to meet him in the next morning. Accordingly on 16.7.1996 he went to the office and met the accused. THE accused told him that it would cost Rs.1500/= to shift the telephone to the new residence. But P.W.2 told him that he can give Rs.500/=. On the same day the accused came with three other persons and gave telephone connection in his house and asked P.W.2s wife as to whether her husband (P.W.2) gave Rs.500/=. Since she stated that P.W.2 did not give any money he asked to tell P.W.2 to come and see him in the office next day. (b) On 18.7.1996, P.W.2 gave Ex.P.4 complaint before the CBI. P.W.5 Inspector of Police, CBI. P.W.5, Inspector of Police, CBI was called by the Superintendent of Police, CBI at 12.30 p.m., on the same day and introduced him P.W.2 THE Superintendent of Police also handed over the complaint Ex.P.4 to P.W.5 and instructed him to take necessary action. P.W.5 verified the genuineness of the complaint and registered a case in R.C.No: 42(A)/96 against the accused Sivanandam at 1.30 pm., under Section 7 of the Prevention of Corruption Act. THE FIR is Ex.P.13. After obtaining the willingness of P.W.2 for to cooperate with them in laying the trap on the accused he send P.w.2 to bring money. In the meantime, he arranged two independent witnesses namely Mr.Ananda Pillai, Assistant Enforcement Director, Enforcement Directorate, Shastri Bhawan, Madras and one Mr.V.Ramachandran, Clerk, Canara Bank, Teynampet Branch, Chennai. At 2.45 pm., P.W.2 came to the CBI Office. THE independent witnesses were also present at that time. THEy assembled at 3.00 pm., in the room of P.W.5 and Mr.Ramasamy, DSP, Mr.Natarajan, Inspector, Mr.P.K.Nair, Inspector, Mr.Kasim, Head constable, Mr.Anbu Constable and Mr.Kabilan, Constable were also present. AFter demonstration, P.W.5 draw Ex.P.5 endorsement mahazar. He instructed P.W.2 not to touch the notes till demanded by the accused. He also directed P.W.3 Ramachandran to accompany P.W.2 to his residence and asked him to over hear the conversation and see that the transaction is taking place between the accused and P.W.2. He also directed him to come to come to the bedroom of the P.W.2, complainant and to inform the trap members regarding the acceptance of bribe money by the accused. P.W.5 also directed the other trap team members and other independent witness to be with him in the bed room o the complainant and to wait for the signal from P.W.3. THE trap members carried suit case containing the sodium carbonate powder, stationery items, sealing wax, metal seal, candle, glass tumblers, etc., THEy left a bottle containing Phenolphthalein powder at the office itself. Already the complainant and P.W.3 left to the trap place and later the other trap team members left the office by 4.30 and reached the residence of the complainant by 5.30 pm., THEy took position in the bed room and waited for the pre arranged signal. At about 6.10 p.m., the accused came to the residence of the complainant and he asked him to sit and also asked whether he will take Coffee. THEreafter the Coffee offered by P.W.2 was taken by the accused. THEn the accused gave him the new telephone number and then he demanded the bribe amount. P.W.2, complainant took out the currency notes from the pocket and counted them and handed over the notes to him. THE accused received the currency notes with his right hand. THE complainant asked the accused whether he should pay any bribe to other persons also? For that the accused told him that he has to give, but this is separate account and that is another separate account. P.W.3 who was along with the complainant knocked the door of the bedroom and immediately the trap members opened the door and came out. THE two constables who came out of the room catch hold of the wrist of the accused. P.W.3 showed his identity and asked the accused whether he received the bribe amount. THE accused admitted to him the receipt of the bribe money. (c) THEn P.W.5 told him that he was under arrest and asked him to keep the notes and diary in which it was kept in the stool and also asked him to raise his hands. THEn P.W.5 directed Kasim, Head Constable to prepare a sodium carbonate solution in a clean glass tumbler using sodium carbonate powder and clean water. THE solution was colourless. THEn P.W.5 directed the accused to wash his right hand fingers by dipping in the said solution. He did so. THEn the colour of the solution changed into pink colour. THE said solution was preserved in a clean glass bottle and it was sealed and marked as A. Signatures of two independent witnesses were also obtained in the label of the bottle pasted on it for the purpose of identification. P.W.5 thereafter asked the Head Constable to prepare another sodium carbonate solution in another clean glass in the above said manner. THE solution was colourless. Even after dipping of the left hand fingers of the accused, the colour did not change. the said solution was collected in a clear glass bottle and labelled, sealed and marked as B and signatures of the independent witnesses were also obtained. THEn P.W.5 instructed the accused to hand over the bribe money kept in the stool to P.W.3, Ramachandran, the independent witness. THE accused did so. THEn P.W.3 and Ananda Pillai verified the number of notes and they found tallied with the numbers mentioned in the entrustment mahazar. THEy also found the denomination of hundred rupee notes tallied with the entrustment mahazar. THEreafter P.W.5 conducted a search in the house of the accused in the presence of the said independent witnesses and seized electricity bills, insurance policy, currency notes of Rs.800/= a diary and a paper containing the telephone numbers and advice note numbers. THE search list is Ex.P.8. All the seized items were produced before the court on 19.7.1996 and a requisition was given for sending the bottles containing the hand wash solution of the accused to Tamil Nadu Forensic Sciences Laboratory. THE report received there from is Ex.P.16. P.W.6, took up further investigation, got sanction order from P.W.1 and examined the Forensic Laboratory witnesses and laid the final report against the accused for offences under Sections 7, 13(2) read with (13(1)(d) of the Prevention of Corruption Act. (d) Before the Principal Special Court (for CBI Cases) at Madras, on behalf of the prosecution, P.Ws 1 to 6 were examined and Ex..1 to P.17 and M.Os 1 to 3 were marked. On behalf of the accused D.W.1 to D.W.4 were marked and Exs.D.1 to D.4 were marked. (e) 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 as against the accused, the accused denied the same as false. He also filed a written statement which reads as follows:- "1) During 1995 when I was promoted to Group B services by Dept.of Telecommunication of New Delhi, I filed a case in CAT, Madras to render justices against improper transfers. So the administrative authorities of Chennai telephones got angry and for waiting to take revenge on me. THEy could not find any fault in my day to day work. In meantime the decoy approached them for shifting of his telephone from Korattur to Choolai. 2) When I met DGM (N/E) at her chamber on 11.7.1996 they asked me to a lot the cable pair for decoy's telephone to be shifted to his new address and also said suitable instruction were already given to Narashiman on 9.7.1996. During my discussion with Narashiman on 12.7.1996 I informed him about more than 100 lines were kept pending for want of cable pair and also at present I was busy in clearing the major cable fault. Narashman suggested me to clear all the pending lines in Swami Pillai St., where decoy's house located. THE work was taken up along with the other work. THE work was taken up and it was completed on 16.7.1996.THE telephone No.587790 was installed at decoy's house. When the cable serves Choolai area became faulty due to electric shock nearly 400 lines became faulty in choolai area. When the decoy contacted some officers, they instructed to register a complaint with ACB of CBI and also asked him to cooperate in trapping me in corruption case, otherwise this telephone will not work properly. ON a false complaint, I was asked to test the cable pair in DB box at Swami pillai street where the decoy's house located. When I was testing the lines the decoy came to me and requested to test the telephone at his residence. I went to his house along with him. It was done satisfactorily. He requested me to have a Coffee considering as his guest. I denied it because I am a diabetic patient. He compelled me to have a coffee and while I was taking coffee he asked me to hand over some money which he promised to pay the money who has done wiring. I refused it an when I started to move out he tried to thrust the money in my right hand in which I had my official diary. By puling my hand from him, he dropped the money on the stool kept before him. I rushed up to the exit. When Saleem cam out along with his trap team, surrounded me. Two constables caught hold of my hands. Saleem, introduces himself and charged me that I was under arrest because of my demand of bribe. I got shocked and denied the charge but it was unheard. THEy brought me near the chair where I was sitting. He asked me to keep the diary which was in my right hand on the stool and to take the money which was lying on the stool. Hence, I handed over it to them. He directed me to raise my hands. THE constables were asked to prepare the solution and the solution test was taken on my both hands then they prepared the magazar. I was under giddiness. I was not able to resist much physically and mentally. My denial of charges was not recorded in mahazar. After trap is over they took me to my house along with my cycle. THEy searched my house and recovered electricity bills, insurance's policy for investigation purposes. When they left my house, I was taken to local clinic for treatment as I feared that I was food poisoned by the decoy's coffee. Later I took treatment under CGHS Hospital. Later I came to know the decoy has informed Narashiman over phone about my trap, which was done successfully. Till 26.7.1996 his telephone was not put through as they promised. Again he made complaint to CBI. On instruction from CBI, Narashiman sent jumper sheet to exchange and the line was put through. I submit that neither I demanded bribe nor accepted the same." (f) On a consideration of the oral and documentary evidence adduced on behalf of both sides, the learned Principal Special Judge, (CBI cases) Chennai came to the conclusion that the accused has committed the offence punishable under Section 7 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and inflicted the punishments as mentioned earlier. Aggrieved over the said conviction and sentence, the accused has preferred this appeal.

(3.) IN this respect, P.W.4, Commercial Officer working in the Telephones Department in his cross examination has admitted as follows:- "Accused Sivanandam got promotion as Group-B Officer in the Telecom Engineering Service in December 1994. Sivandndam and 49 others filed Original Petition before the Central Administrative Tribunal, Chennai, challenging the date of posting. That application was dismissed by the Tribunal. I am not aware of Dharna conducted by Sivandndam and others before the A.E.Office. I am not aware of the Dharna conducted before the CGM office at Purssawalkkam. I am aware Sivanandam was the member of JTEA Engineers Telecom Office. I am not aware of the displeasure of superior officers due to the Union activities of Sivanandam."