RAMAKRISHNAN Vs. STATE

JUDGEMENT

(1.) THE appellant, who is a sole accused, has come forward with this appeal challenging his conviction and sentence passed by learned IV Addl. Sessions and Special Judge, Chennai, made in C.C. No. 58 of 1995 by the judgment dated 09.04.1999, convicting him under Sections 7, 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988, and sentencing him to three years Rigorous Imprisonment and to pay a fine of Rs. 1000/- in default, to undergo one month simple imprisonment and also convicting him under Section 471 r/w 466 IPC and sentencing him to undergo three years Rigorous Imprisonment and to pay a fine amount of Rs. 1,000/- in default, to undergo one month simple imprisonment.

(2.) THE case of the prosecution is as follows: (a)" P.W. 3, Le Minh Hung, is the younger brother of P.W.2, Vellasamy. THEir father Sinthamani was working as an Accountant in a private firm at Saigon, South Vietnam. Both of them were born at Saigon, where their father was working. P.W.2 and his brother P.W.3 were granted Indian Citizenship by the Ministry of Home Affairs, New Delhi. THE same was recognised by the Government of Tamil Nadu. (b)" THE parents of P.Ws. 2 and 3 subsequently moved to USA and they had settled there. P.W.3, the younger brother of P.W.2, had applied for a passport to join his parents in U.S.A. THErefore, P.W.2 approached the Regional Passport Officer, Chennai, on 8.8.1994 to know the stage of the passport application made by P.W.3. He was informed that the application has been referred to the Home Department of the State Government for clearance. (c)" On 9.8.1994, P.W.2 met the accused Ramakrishnan at his office at Secretariat, Chennai, and he learn from him that the letter (Ex.P.15) has since been received from the Regional Passport Officer. THE accused then directed P.W.2 to submit his representation in the Thapal Section in the Home Department. (d)" On 10.8.1994, P.W.2, met the accused at the Secretariat with Ex. P.3, representation, dated 10.8.1994, enclosing the xerox copy of his brother, P.W.3's identity certificate, issued by the Government of India. THE accused asked him to submit the same to Thapal Section. THE accused also told him on 10.8.1994 that he was proceeding on leave for one week and after that he would put up the file. (e)" On 22.8.1994, P.W.2 went to the Secretariat to meet the accused, but the accused was not available and he was told that the accused would be there on the next day. On 23.8.1994, P.W.2 went to the Secretariat again and he was told that the accused had extended his leave and would be attending the office on 29.8.1994. (f)" On 29.8.1994 in the morning, P.W. 2 went to the Secretariat and met the accused who told him that he would attend his papers and clear it soon. THE accused then asked P.W. 2 to come to his residence at No.14, 7th Main Road, Raja Annamalaipuram, Chennai, on 31.8.1994 before 8.00 a.m. P.W. 2 went to his residence on 31.8.1994 in the morning and the accused told him that he had taken all steps to clear the application/representation and questioned him as to what next. THE accused also told him that he would have cleared it a week before, but his superiors wanted to know whether the party is interested or not, as issue of clearance certificate is a complicated matter. (g)" On 2.9.1994, P.W. 2 went to the Secretariat and met the accused who told him that the clearance certificate is ready and he had to get over certain difficulties. He told P.W. 2 that he should pay Rs. 1,000/- to him for handling over the clearance certificate. While P.W. 2 expressed his inability, the accused was adamant. THE accused then told him that he should pay the amount on 5.9.1994 at his residence and only then he would deliver the clearance certificate to P.W. 2. P.W. 2 agreed with the accused for payment of the said amount. (e)" P.W. 2 was not willing to pay the amount. THErefore he went to the office of Deputy Superintendent of Police (Vigilance and Anti-Corruption), Chennai, on 3.9.1994 at about 12.30 p.m. and lodged a report, Ex.P.4. He also enclosed Ex.P.5, Gate Pass issued to him on 22.8.1994 at the Secretariat. THE Deputy Superintendent of Police, Thiru. Nallama Naidu (P.W.12) directed Thiru. Jegannathan (P.W.11) to take action on the complaint. P.W.12 introduced P.W.2 to P.W.11, who received the complaint form P.W.2 and after perusing it, asked P.W.2 to wait. P.W.11 then registered his complaint and gave an acknowledgment. (i)" At 2.00 p.m. on the same day i. e. on 3.9.1994, P.W.4 Thiru. Jayaraman, Senior Sales Officer, TANSI and one Thiru. Radhakrishnan, Assistant, TNEB Secretariat Branch, came to the Vigilance Office and met Vigilance Inspector Jegannathan, P.W.11. P.W.11 instructed P.W.2 and P.Ws. 4 and 5 to come to the Vigilance Office at 5.30 a.m. on 5.9.1994. P.W.2 went there at 5.30 a.m. on 5.9.1994 and P.Ws.4 and 5 had also reached the office. P.W.11 introduced them to P.W.2 and also gave Ex.P.4, report to them viz. P.Ws.4 and 5 for perusal. P.Ws.4 and 5 went through the complaint. THEn P.W.11 asked P.W.2 whether he got the money Rs.1,000/- to be given to the accused as bribe amount for handing over the clearance certificate P.W.2 then gave Rs.1,000/- to P.W.11 in Rs.100/- denomination. P.W.11 gave the amount or P.Ws. 4 and 5 and asked them to count it. THEreafter, P.W.11 the Inspector, Vigilance and Anti-Corruption, demonstrated the Phenolphthalein Test and also explained the significance of the Test to P.W.2 and other witnesses viz., P.Ws.4 and 5. He then returned the amount smeared with Phenolphthalein powder and asked P.W.2 to hand over the amount to the accused at his residence, if he made a demand of the same. P.W.11 also told them that if the accused accepted the money, he should give a signal by removing his watch. He took the amount and placed it in his pocket. P.W.11 instructed P.W.4 to accompany P.W.2 and to listen to the conversation between P.Ws.2 and the accused and in general to watch the other happenings. P.W.11 prepared to mahazar, Ex. P.6 at 6.45 a.m. about this which was signed by P.W.2 and attested by P.Ws. 4 and 5. (j)" THEreafter, P.W.2 and P.Ws. 4 and 5 along with P.W.11 and other police officers left the Vigilance Office in a Van at 7.00 a.m. P.W.2. and 4 got down from the van near the house of the accused. P.W.4 went into the house of he accused along with P.W.2 at 7.30 a.m. P.W.11 and other police officers were waiting outside. THE accused asked P.W.4 and P.W.2 to sit in a chair and the accused took a seat opposite to them. THE accused asked P.W.2 whether he has got a sum of Rs.1,000/- to hand over the clearance certificate and P.W.2 told him that he brought the amount and asked him whether the certificate is ready. THE accused answered him in affirmative and went into a room and brought a file relating to his brother P.W.3's clearance certificate and P.W.2 was shown the file. After this the accused asked P.W.2 to sign in the file for receiving both the original and the copy of the letter, Ex.P.8, addressed to the regional Passport Officer. P.W.2 signed the file and received the copy dated 5.9.1994. THEn P.W.2 attempted to enter the date below his signature, the accused told him not to put the date. He tried to strike it, but it was left as it is. THE endorsement made by P.W.2 is Ex.P.7. THE accused then told him that the papers were ready long back and he did not know whether the party was interested or not and it would have been referred to Government of India. P.W.2 then gave Rs.1,000/- as demanded by the accused who on receiving the same counted it. At about 7.40 a.m. P.W.2 came out of the house and gave a signal by removing his watch. (k)" On noticing the signal given by P.W.2, P.W.5 and P.W.11, the Inspector of Police, went to the house of the accused. He also took P.Ws. 2 and 4 into the house of the accused, where P.W.2 identified the accused as the person who took the amount from him. THEreafter, P.W.2 was sent out by P.W.11. P.W.11, the Inspector of Police, revealed his identity to the accused and the accused became nervous. P.W.11 then prepared sodium carbonate solution in two glasses and asked the accused to dip the fingers of both his hands in the solution so prepared which turned pink. He then sealed the bottles after pouring the solutions in those bottles, M.Os.2 and 3. He affixed labels on the bottles which was signed by P.Ws. 4 and 11. (l)" THEreafter, P.W.11 asked the accused to produce the amount. THE accused produced the amount from a striped black pant. He found 10 numbers of 100 Rupees notes. He compared the number of the notes with the mahazar, Ex.P.6. P.W.11, then dipped the pant in the solution which turned Pink. THE pant is marked as M.O.4. P.W.11 then prepared the mahazar for what took place after the trap in the house of the accused. THE mahazar is Ex.P.9. THE accused produced the order passed on the application for according citizenship to P.W.3 i. e. Ex.P.8 which is also received by P.W.2 and Ex.P.7 is the acknowledgment by P.W.2. THE accused produced some more files for which P.W.11 prepared a mahazar, Ex.P.10, which was signed by P.Ws. 4 and 11. THEreafter, P.W.11 searched the house of the accused and prepared the Rough Sketch, Ex.P.20. He also prepared the Observation Mahazar, Ex.P.11. THEreafter he returned along with the accused and other raiding party to his office by 12.30 noon and arrested the accused and after examining the accused he released him on bail. P.W.11 sent the report to the Court and to the higher officials. He also sent the seized currency notes, M.O.1 series and other M.Os. 2 to 5 viz., two bottles of solution, pant of the accused and one more bottle of solution to the Court with requisition to send the same for chemical examination. (m)" P.W.13, Inspector of Police, took up further investigation form P.W.11. THEreafter, he has examined the witnesses and also the accused and prepared the final report and sent the same to the Director, Vigilance and Anti-Corruption and after obtaining the sanction form P.W.1, Deputy Secretary (Home) Department, filed the charge sheet against the accused on 14.9.1995 for the offences under Sections 4 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and Section 471 read with Section 466 I.P.C.

(3.) K.S. Rajagopalan, learned counsel appearing for the appellant took me through the entire evidence meticulously and made the following submissions : (i) The prosecution miserably failed to prove that the accused demanded the bribe amount from P.W.2. Though P.W.2 claimed to have met the accused on 9.8.1994, 10.8.1994 and 29.8.1994 at his office admittedly there is no demand made by the accused. P.W.2 also further claimed that he has met the accused in his residence on 31.8.1994 and even on that day there is no allegation of demand against the accused. But only P.W.2 claims that he again met the accused at his office on 2.9.1994 and only at that time the accused said to have made the demand of bribe. This version of P.W.2 is on the face of it unbelievable and artificial as the accused having not demanded any amount throughout during the earlier occasions. The version of P.W.2 that the accused suddenly demanded bribe on 2.9.1994 in his office itself is most unbelievable since it is admitted by P.W.2 that the accused was sitting in the hall in the office and he was surrounded by number of other staff members. It is also further admitted by P.W.2 that even Assistant Section Officers were also seated nearer to the accused seat. Therefore, the version of P.W.2 that the accused made the demand on 2.9.1994 in the presence of others is unbelievable. (ii) Even the demand alleged to have made by the accused on the date of trap on 5.9.1994 is also unbelievable. It is the admitted case of the prosecution that P.W.2 was accompanied by the trap witness, P.W.4, in order to watch the transaction between the accused and P.W.2. Though P.W.2 claimed that the accused asked for the amount and thereafter he has paid Rs.1000/- and the same was received and counted by the accused, the admission of P.W.4 in the cross-examination shows that there is absolutely no corroboration to the version of P.W.2. P.W.4 admitted in his cross-examination that both the accused and P.W.2 were talking separately in the adjacent room of the hall and he was not aware about the discussion between the accused and P.W.2. P.W.2 only thereafter came out of the room and informed him that he gave the money to the accused. Therefore P.W.4 has not corroborated the version of P.W.2 in respect of the demand and payment of the money to the accused. Therefore, the admitted conduct of the accused for not making the demand of bribe amount on 9.8.1994, 10.8.1994 and 29.8.1994 including in his residence and suddenly making the demand on 2.9.1994 in his office while he was surrounded by other staff members throws considerable doubt about the veracity of the version of P.W.2. It is also admitted by P.W.2 that though there are higher officials at the same office he has not opted to give any report to them which shows that the version of P.W.2 is unbelievable. The learned counsel also placed reliance on the decision of the Honourable Supreme Court of India in T. Subramanian v. State of T. N. reported in (2006) 1 SCC (Cri.) 401 to the preposition of law that mere proof of receipt of money by the accused in the absence of proof of demand not sufficient to establish the guilt of the accused. (iii) The defence theory of planting the currency notes into pant pocket of the accused by P.W.2 is probabilised by the following circumstances : (a) Admittedly, the accused was not wearing pant on the date of trap as per the evidence of P.Ws. 2, 4, 5 and 11. According to them, on the date of occurrence, the accused was wearing a dhoti; (b) Admittedly, it is not stated by P.W.2 that the accused received the amount and put the same into his pant pocket; (c) P.W.4 stated in his cross that before the arrival of the accused from his pooja, P.W.2 and himself were waiting for 5 to 10 minutes as the accused was doing pooja inside. Therefore, there was enough time and opportunity for P.W.2 to plant the amount into the pant pocket. It is also suggested to P.W.2 that P.W.2 and P.W.4 were waiting in the house of the accused for 5 to 10 minutes and thereafter P.W.2 went to the nearby bed room and planted Rs.1,000/- into pant pocket which was found hanging there. The same suggestion was put to P.W.4 also. (d) It is also categorically stated by the accused while he was examined under Section Cr.P.C. that after 10 minutes, after completing pooja, he came out from the pooja room to the hall and found P.W.4 and when he questioned as to how he has come there P.W.4 shown the bed room and thereafter the accused went inside the bed room and found P.W.2 was standing near the telephone and when he questioned as to why he has come to that room, for that P.W.2 saying that he has placed and ran out from the bed room. It is also stated by the accused that at that time he found a bundle on the cot. It is also stated by the accused that the raiding party entered inside his house and thereafter P.W.2 informed the raiding party that the amount was kept in the pant pocket. Thereafter, he was threatened by the police/raiding party to take the amount form the pant pocket and the accused took the amount from his pant pocket. Therefore, it is clear that the hands of the accused must have stained with phenolphthalein powder only due to the above said circumstance. Therefore, the accused, in view of the above said materials and circumstances, has given a reasonable and probable explanation for the recovery of the amount from his pant pocket. (iv) It is well settled that the accused can prove his defence by giving reasonable and probable explanation and also by preponderance of probabilities. The learned counsel for the appellants also placed reliance on the following divisions : (1) State of Tamil Nadu v. Krishnan and Another reported in VII (2000) SLT 266 for the proposition of law that the version of planting the amount by the prosecution witness is probabilised coupled with the fact that the prosecution version of demand of bribe and the circumstances under which the said demand was made is suspect. (2) T. Subramanian v. State of T. N. (2006) 1 MLJ (Crl) SC 63 : (2006) 1 SCC (Cri.) 401 for the proposition that the accused can prove his defence by giving reasonable and probable explanation and also by preponderance of probabilities. (3) Punjab Rao v. State of Maharashtra 2004 SCC (Cri.) 1139 for the proposition that if the explanation offered by the accused under Section 313 Cr.P.C. is found to be reasonable, then it cannot be thrown away that he did not offer the said explanation at the earliest point of time. (v) The prosecution miserably failed to prove the charge of forgery of Ex.P.8 fabricated letter dated 30.8.1994 of the Home (Citizen) Department, Secretariat, Madras, addressed to the Regional Passport Authority to the effect that P.W.3, brother of P.W.2 is a citizen of India and there is no objection for issuing passport to him. The alleged forged document viz., Ex.P.8 was not sent for Hand-Writing Expert opinion and the prosecution has not given any proper explanation for not sending Ex.P.8. P.W.7, Typist, working at the Secretariat has categorically stated that the initial found in Ex.P.8 is her initial. Therefore it cannot be stated that Ex.P.8 is a forged or created document. (vi) The alleged seizure of Exs. P.7 and P.8 and other seizure of office files relating to P.W.3, brother of P.W.2, from the house of the accused cannot be held against him, in view of the fact that planting of the office file on the cot inside the bed room of the accused by P.W.2 cannot be ruled out. The case of the defence that P.W.2 only planted the money into the pant pocket and files inside the house of the accused is probabilised and there are many materials and circumstances in the statement of the accused recorded under 313 Cr.P.C. supporting the defence and more particularly in view of the admission of P.W.8, Section Officer, that there is a possibility of removing the files by the visitors as they used to keep the files on the table. (vii) There is motive for P.W.2 to implicate the accused falsely on the ground that P.W.2 frequently troubled the accused for every time and as a result the accused scolded, shouted and throw him away from the office, as per the categorical admission of P.W.8, the Section Officer. Therefore, it is unsafe to place reliance on the evidence of P.W.2.