DURAIRAJ Vs. STATE

JUDGEMENT

(1.) HEARD the submissions made on either side.

(2.) THE accused Durairaj, who is convicted for the offences under sections 7 and 13(i) (d) r/w 13(2) of the Prevention of Corruption Act 1988 and was sentenced to undergo 2 years of rigorous imprisonment and to pay a fine of Rs.5,000/- for each of the offences in default to undergo 3 months of simple imprisonment, has preferred the present appeal. 3) On the side of the prosecution, 13 witnesses were examined and 21 documents and 5 Material Objects were marked. 4) THE sum and substance of the case of the prosecution as unfolded by witness examined on the side of the prosecution is as follows: (i) THE accused Durairaj was serving as a Head Constable at Sirkali, Police Station. P.W.11 Amanullah entrusted the Passport and Air Ticket to Swaminathan P.W.2 with a request to go over to Chennai to confirm the ticket for undertaking his journey to Riath. P.W.11 had a plan to go over Riath on 10.06.1998. 5) P.W. 2. having completed the mission lost the passport and other documents, while he was traveling in a bus proceeding to Parrys Corner in Chennai. He proceeded to Pookadai Police Station Chennai and lodged F.I.R. which was registered as Crime No. 454/1998 under section 379 of the I.P.C. 6) P.W. 2. Swaminathan came down to Sirkali and explained the episode relating to the missing of the passport and other documents entrusted to him for confirmation to P.W.11 Ammanullah. THErefore P.W.11 wanted to verify whether any such case was registered by Pookadai Police Station, Chennai. When the accused was approached, the accused informed P.W.2 that Inspector of Police and himself would proceed to Chennai for verification. 7) THE accused on 08.02.1999 at about 8.00 am went to the house of P.W.2 Swaminathan and informed that a third party had misused the passport of Ammanullah and had been to foreign country and therefore P.W.2 Swaminathan should part with a sum of Rs.2,00,000/- as compensation to P.W.11 Ammanullah, as otherwise, a case of cheating would be registered against P.W.2 Swaminathan. THE amount was reduced to a sum of Rs.1,50,000/- and thereafter reduced to a sum of Rs.75,000/- but P.W.2 Swaminathan having refused to part with any amount as he had not committed any offence. 8) THE accused informed Swaminathan P.W.2 to part with a sum of Rs.25,000/- as otherwise a case will be registered and he will be put behind the bars. 9) P.W.2 approached the Inspector of Police P.W.12 Kuppusamy attached to Vigilance and Anti Corruption Wing, Nagapattinam on 15.02.1999 at about 10.00am and lodged a complaint Ex.P.12 which was registered in Crime No,3/1999 under section 7 and 13(i) (d) r/w 13(2) of the Prevention of Corruption Act 1988 and prepared the printed First Information Report Ex.P13. A copy of the printed F.I.R. was supplied to P.W.2 Swaminathan. 10) P.W.12 made arrangements for trapping the accused and instructed P.W.2 to bring a sum of Rs.5,000/- which was demanded as advance by the accused from him. 11) On the same day on 15.02.1999 at about 12.00 noon P.W.2 Swaminathan brought the sum of Rs.5,000/- in various denominations marked as Material Objects Nos.1 to 3 and entrusted the same to Inspector of Police P.W.12. P.W.12 secured the presence of P.W.3 Soundarajan working in Hindu Religious and Charitable Board, Nagapattinam and one Mr. Rajagopal attached to Tamil Nadu water Supply and Drainage Board and in the presence of P.W.2 and P.W.3 and the said Rajagopal P.W.12 prepared the Sodium Carbonate Solution and demonstrated the Panapthelene test. P.W.2 went alongwith the trap witness to Sirkali Police Station by 1.30 p.m. P.W.5 the junior paternal uncle of P.W. 2. accompanied P.W.2 who went inside Sirkali Police Station and brought the accused outside the Police Station, near the Tea shop located in front of the Sirkali Police Station. P.W.2 paid a sum of Rs.5,000/- in the presence of P.W.3 and P.W.5 and gave signal to P.W.12 who came down alongwith Rajagopal and thereafter he was taken to M.R. Radhe building where P.W.4 Head Constable was staying and Sodium Carbonate Solution was prepared over there and the hands of the accused were dipped in the Sodium Carbonate Solution which turned Pink. THE solution used for the purpose of testing the hands of the accused was collected and the accused was arrested and thereafter he was remanded to Judicial custody. 12) P.W.12 examined P.W.2 Swaminathan, P.W.3 Sounderarajan, P.W.4 Bakkirisamy, P.W.5. Balu, P.W.6 Jayakumar Head Constable, P.W.7 Nagamuthu Head Constable, P.W.8 Kasinathan Head Constable, P.W.9 Ramasamy Sub Inspector of Police and recorded their statements. Karthikeyan P.W.10 speaks about expert opinion with respect to the Sodium Carbonate Solution sent for examination. P.W.11 Abdul Mashid Ammanullah turned hostile to the case of prosecution launched by Krishnamoorthy P.W.1 Department Head of Vigilance and Anti Corruption Wing. 13) Krishnamoorthy, Superintendent incharge of Vigilance of Anti Corruption Wing gave sanction for prosecution P.W.13 Rajendran who took charge from P.W.12 conducted further investigation. He filed charge sheet as against the accused for the offences under section 7 and 13 (i) (d) r/w 13 (2) of the Prevention of Corruption Act 1988. 14) THE accused took up a plea that he infact had received a sum of Rs.5,000/- but not as a bribe, but as compensation to pay to the victim P.W.11 Ammanullah. 15) THE learned counsel appearing for the appellant would vehemently submit that P.W.2 has categorically stated during the course of Cross Examination that the amount was demanded for the purpose of settling the dispute between the P.W.2 and P.W.11. Referring to the evidence of P.W.3, one of the trap witnesses in this case, he would contend that P.W.3, in the background of the Seizure Mahazar has spoken to the fact that the accused came out with a version at that point of time that the amount was received by him as advance for the purpose of setting the dispute between the P.W.2 and P.W.11. 16) It is submitted that the defence set up by the accused and the evidence referred to above would go to show that the accused had not received any bribe from P.W.2 but received the sum of Rs.5,000/- only for amicably settling the dispute between the P.W.2 and P.W.11. 17) THE learned Government Advocate (Crl. Side) would vehemently submit that P.W.2 has cogently spoken about the amount of Rs.5,000/- received by the accused as bribe. Referring to Seizure Mahazar and the Material Objects, which was analysed by Chemical Examiner he would submit that the trial court has rightly returned the verdict of conviction, which warrants not any interference. 18) P.W.2 during the course of Cross Examination has candidly admitted that P.W.11 Ammanullah infact demanded a sum of Rs.2,00,000/- as compensation for settling the dispute between them, and the same was ultimately reduced to Rs.25,000/- at the intervention of Well wishers and Panchayatars. He would also admit that Panchayatars passed the verdict on 02.02.1999 that P.W.2 should pay compensation to P.W.11. It is found from the testimony of P.W.2 that he was already having connection to the family of the accused through his father-in-law. THErefore it appears that the accused had intervened in the dispute between the P.W.2 and P.W.11 for the purpose of amicably setting the dispute. P.W.2 has categorically deposed before the court that the accused demanded a sum of Rs.25,000/- for the purpose of amicably settling the dispute between P.W.2 and P.W.11. It is his further case that as he was not prepared to part with a sum of Rs.25,000/-, as he had not committed any offence, he proceeded to Vigilance and Anti Corruption Wing, Nagapattinam and lodged a complaint. 19) P.W.2 has also deposed during the course of Cross Examination that on 13.02.1999 the accused informed him that a sum of Rs.25,000/- would have to be paid to P.W.11 by P.W.2, as otherwise a case would be registered as against P.W. 2. To top it all, P.W.2 has stated as follows: -THE accused, who is present demanded money. He demanded on both the occasions for the purpose of giving amount as compensation to Ammanullah. THE aforesaid version of P.W.2 would go to show that there had been a Panchayat, wherein, a decision to pay compensation by P.W.2 to P.W.11 was taken. THE accused also insisted at last that a sum of Rs.25,000/- should be paid as compensation by P.W.2 to P.W.11, as otherwise P.W.2 will have to face Criminal prosecution-. 20) Let us see, whether there is any corroboration to the aforesaid version spoken to by P.W.2 during the course of Cross Examination. P.W.3 who is one of the trap witnesses in this case, has deposed that Inspector of Police P.W.12 enquired as to why the accused received the amount from P.W.2 immediately after the accused was trapped, but accused informed the inspector of Police P.W.12 that the said amount was received from P.W.2 only for the purpose of making payment to Ammanullah towards compensation. THE said version of P.W.3 is backed by the special reference with respect thereto found a place in Seizure Mahazar Ex.P4. 21) THE learned counsel appearing for the petitioner would bring to the notice of this court that the above version of P.W.3 was scrupulously recorded by P.W.12 in the aforesaid Seizure Mahazar which reads as follows: -When the accused was asked about the amount he received, he having handed over the money found upon the suit case replied that the amount of Rs.5,000/- was paid as advance for making payment to Ammanullah P.W. 2. THE latter further informed the accused while handing over the said amount that the remaining amount of Rs.20,000/- would be paid by him on Wednesday.- 22) P.W.12 also during the course of Cross Examination admitted the aforesaid explanation given by the accused immediately after the trap was laid. When the accused was questioned under section 313 of the code of Criminal Procedure Code he had come out with a defence that a sum of Rs.5,000/- was parted with by P.W.2 Swaminathan only for handing over the same to P.W.11 Ammanullah. 23) It is an admitted case of P.W.2 that a sum of Rs.25,000/- was arrived as compensation to be paid by P.W.11 Ammanullah. Though P.W.2 has stated during the course of Chief Examination that sum of Rs.5,000/- was paid as bribe, he stumbled during the course of Cross Examination and come out with a statement that the said amount of Rs.5,000/- was meant to be paid as part of compensation to Ammanullah. THE accused has also stated even during the trap proceedings that the amount was meant to be paid as compensation to P.W.11, Ammanullah, P.W.3 one of the trap witnesses and P.W.12 the investigating officer also would admit that such was the first version of the accused. 24) It is found that there is no legal evidence to establish that the sum of Rs.5,000/- was paid by P.W.2 to the accused as bribe. THE said amount has been paid by P.W. 2. to Accused only as part of compensation amount to be paid to P.W.11. 25) It appears that the said trial court without adverting to the aforesaid revelation found in the Cross Examination of P.W.2 which received support from the evidence of P.W.3 and P.W.12 and the version found in the Seizure Mahazar Ex.P.4 has come to a wrong decision that the amount was received as bribe. 26) THE amount received by the accused for the purpose of amicably settling the dispute between P.W.2 and P.W.11 as determined by Panchaytar cannot be classified as -bribe-. THErefore the court finds that the prosecution has failed to establish that the accused committed offences punishable under section 7 and 13(i) (d) r/w 13(2) of the Prevention of the Prevention of Corruption Act 1988. 27) In the result the judgment of conviction recorded and sentence imposed by the trial court stands set aside and the appellant/accused is acquitted of both the charges and he is set at liberty. THE bail bond executed by him shall stand annulled. THE fine amount if any, paid by him, shall be returned forthwith. THE appeal is allowed.