L BOOPATHI Vs. STATE

JUDGEMENT

(1.) THIS appellant stands convicted by the learned Principal Special Judge for CBI Cases in C.C.No.203 of 1997 for offences under Section 7,11 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988, and he is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for six months for the offence under Section 7 and sentenced to undergo two years rigorous imprisonment and a fine of Rs.5000/- in default to undergo rigorous imprisonment for one year under Section 11 of the Prevention of Corruption Act and sentenced to undergo imprisonment for two years and to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for one year for the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, and the sentence was ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant had preferred this appeal.

(2.) THE case of the prosecution, in brief, is that at the time of occurrence, the accused was the Inspector of Police, CBI and he was posted at CBI Office at Sasthri Bhavan, Chennai. THE CBI registered a case against the officials of Hindustan Photo Films, in R.C.No.31(A)/94 on 29.07.1994, in which P.W.2 also was one of the accused and searches were conducted. P.W.8, the Inspector of Police, CBI was the Investigating Officer in that case and he obtained a search warrant on 20.09.1994 from the Chief Metropolitan Magistrate. P.W.2 was the retired General Manager of Hindustan Photo Films and it was decided to conduct search of the residential premises. P.W.8 made an endorsement in the search warrant and nominated the Inspector of Police, Boopathy who is the accused in this case to conduct the search of the house of P.W.2. P.W.8 went to Hydrabad to make search of some places in connection with the same case. THE accused Boopapathy went to Anandathandavapuram on 03.10.1994 for conducting searches at the residence of P.W.2 Mr. Ramamurthy. P.W.4 who was the Assistant Manager of Indian Overseas Bank at Mayiladuthurai and another Assistant Manager Mr.Swaminathan were requested to accompany the accused and Boopathy to stand as a witness for this search. All of them went in a Car and the house of P.W.2 was searched from 9.00a.m to 5.00p.m and 11 items of documents were seized and the search list Ex.P.3 was also prepared. As per Ex.P.3 and Ex.P.8, 11 items of documents were seized for the purpose of investigation. According to the evidence of P.W.2, an inventory was prepared for 38 items which were found in the house. Ex.P.2 contained three pages and P.W.2 signed in all the three pages. THE accused Boopathy also taken the keys of the lockers at City Union Bank and P.W.2 was not given any receipt for that. On the next day at 04.10.1994 at about 10.45a.m, the accused Boopathy, the said Swaminathan and instead of P.W.4, Valliappan another witness P.W.5 Viswanathan along with the Police Constable Ravikumar went to his house in a Taxi. THEn all of them along with P.W.2 went to Sivan temple. From there they went to Mayiladuthurai and reached the City Union Bank at 11.10a.m. THE bank locker was opened and an inventory was prepared in which the witnesses and the bank Manager signed. THEn they all went to the Bank of Baroda and the locker was opened and nothing was found in the locker. THEn all of them went to Indian Overseas Bank. P.W.2 was in his Car and others went inside the bank. After 10 minutes, the accused only returned and he was holding a blank search list. THE accused Boopathy showed it to P.W.2 and told that he had obtained the signatures of the witnesses Swaminathan and Valliappan and he had to make certain changes. THEn accused and P.W.2 went to the house of P.W.2 and reached the house at 4.30p.m. THEn the accused took P.W.2 to the safety room in the house and sitting in a chair, the accused asked P.W.2 to take out the jewel box from the Godrej Bureau. P.W.2 took the jewel box and kept it on the table. In the jewel box, four row chain of 40 sovereigns and two row chain of 20 sovereigns and two coins of two sovereigns were found in the office. THE accused taking them in his hand told P.W.2 that he had to seize those jewels and had to freeze the account and also to arrest the accused and to register a case for possessing assets disproportionate to his income. At the same time, the accused told P.W.2, that as P.W.2 was aged person, he did not want to do that, but he wanted a sum of Rs.2.5 lakhs. THEn the accused had dictated to P.W.2 to write the First Information Report, Ex.P.4 in R.C.No.31(A)/94. THE accused took the jewel box and put them into a plastic bag and kept in his pant pocket. In the unfilled search list, the accused obtained the signature of P.W.2 as if he received a copy of it. He had also taken the copy of Ex.P.1 and P.3 which was given to P.W.2 on the previous day and torn into pieces, the copy of Ex.P.3. Again they went to Mayiladuthurai. THE accused directed P.W.2 to come to Madras on the next day and also instructed to file a bail application for him. THEy reached the Cinema theater at Mayiladuthurai at 5.30p.m., and there the accused met an Advocate, Muthusamy who is related to P.W.2. THE accused obtained the address of P.W.2's son as he was residing at B-7, Sumanth Apartments, 165, R.K.Mutt road, Mandaveli, Chennai-28, and the accused asked P.W.2 to come and stay in that house. Ex.P.5 is the visiting card on the back side of which the address was noted by P.W.2.

(3.) MR. K. Shanker, learned counsel appearing for the appellant herein submitted that with regard to the alleged demand by the accused, the evidence of P.W.2 is not corroborated. According to P.W.2 the accused met him on 5.10.1994, 06.10.1994 and 09.10.1994 at the residence and P.W.2 also accepted in evidence that the demand made by the accused was known to all the family members, but no one from the family of P.W.2 was examined to corroborate the evidence of P.W.2. Even the demand of Rs.50,000/- is highly improbable, since even according to the prosecution, the accused had taken the jewels and some more jewels were available and as such there is no necessity for the accused to demand more money after taking the jewels. If he had wanted, he would have taken more jewels to his custody. The cassette in which the conversation said to have been recorded has not been displayed and the contents in the tape recorder have not been reduced into writing and placed before the court. It is further submitted that the recovery of the jewels belonging to P.W.2 from the locker of the accused is unbelievable, since the said recovery was not made as per Section 27 of the Evidence Act and the investigating officer also admitted that he did not record any statement of the accused. After completion of the trap proceedings, the accused was in the custody of the CBI and the independent mahazar witness were also not knowing under whose custody, the locker key was kept during the night after the trap. The particular CBI Officer Nandakumar who continued the search of the locker was not examined before the trial Court. That apart, Section 18 of the Prevention of Corruption Act is to the effect that only the Superintendent of Police and above rank officer could inspect any bankers book etc.,. Therefore, the search of the locker is illegal and the recovery of the jewels from the locker is unacceptable. The learned counsel further submitted that P.W.2 was motivated witness and according to his evidence, though he had decided to give complaint on 05.10.1994, ultimately he gave complaint only on 10.10.1994 and the delay for preferring the complaint throws considerable doubt with regard to the version of P.W.2 who is in the nature of accomplice and who is already an accused in a case registered against him.