Varadachari Vs State Rep by — Corruption | Madras HC (2017)

Varadachari Vs State Rep by — Corruption | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving the Judgment: Date of pronouncing the Judgment : 12.01.2017 19.07.2017

CORAM :

THE HONOURABLE MR. JUSTICE S.BASKARAN

Crl.A.No.74 of 2010
1.Varadachari
2.Selvam .. Appellants
Vs
State
rep. By
The Inspector of Police
Vigilance and Anti Corruption
Kancheepuram,
(Crime No.3/AC/2000/KM) .. Respondent
Appeal filed u/s.374 (2) Cr.P.C., against the conviction and sentence
imposed by judgment dated 08.01.2010 in Special Case No.12 of 2001 by the
learned Special Judge cum Chief Judicial Magistrate, Chenglepet.
For Appellants : Mr.V.Gopinath, Senior Counsel
for Mr.L.Mahendran for A1
Mr.R.John Sathyan for A2
For Respondent : E.Raja, Addl. Public Prosecutor
JUDGMENT

The appellants who are arrayed as A-1 and A-2 have come forward with this appeal challenging their conviction and sentence imposed by the

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learned Special Judge cum Chief Judicial Magistrate, Chengalpet, by judgment dated 08.01.2010 made in S.C.No.12 of 2001, convicting and sentencing the appellants as hereunder:-

The 1^st appellant/1^st accused was found guilty for offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter called as “Act”) and sentenced him to undergo 6 months simple imprisonment and to pay a fine of Rs.500/-, in default to undergo 2 months simple imprisonment and was also found guilty under Section 13(2) read with 13(1)(e) of the Act and sentenced him to undergo 1 year simple imprisonment and to pay a fine of Rs.500/- in default to undergo 2 months simple imprisonment;

The 2^nd appellant/2^nd accused was found guilty under Section 12 read with 7 of the Act and sentenced to undergo 6 months simple imprisonment and to pay a fine of Rs.100/- in default to undergo two weeks simple imprisonment.

The trial court also ordered that the sentence shall run concurrently.

The case of the prosecution which arises from the complaint lodged

by one Arumugam [since deceased] to the Inspector of Police viz., Vigilance and Anti Corruption, Kancheepuram, alleging that the 1^st appellant/1^st accused, who was then working as Firka Surveyor, Thirukazhukundram, on 08.05.2000, demanded by way of illegal gratification a sum of Rs.2000/- to measure the property as per the order passed by the court concerned in

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O.S.No.293 of 1999 and the complainant Arumugam was a party to the said proceedings.

According to the complainant, since he expressed his inability to pay Rs.2000/-, the 1^st appellant/1^st accused asked the complainant to pay the sum in two installments of Rs.1000/- each and asked the complainant to meet him on 12.05.2000 at 2.00 p.m., with the amount. Since the complainant was not willing to pay the amount, he lodged the complaint with P.W.12, the then Inspector of Police, Vigilance and Anti Corruption, Kancheepuram, and acting on the said complaint, he registered a case in Crime No.3 of 2000 under Section 7 of the Act and the FIR is produced as Ex.P.11. The complaint is not marked and only the signature is marked as Ex.P.2. After registering the case, a trap was laid on 12.05.2000 and a sum of Rs.1000/- was recovered from the possession of 2^nd appellant/2^nd accused herein, who is stated to be the Private Personal Assistant of the 1^st appellant/1^st accused. According to the prosecution, when the complainant gave the amount to the 1^st appellant/1^st accused, he directed him to handover the money to his Assistant, the 2^nd appellant/2^nd accused and accordingly, the money was collected by him. After following the normal trap procedure and completion of investigation, charge sheet was filed under Sections 7 and 13(2) read with 13(1)(e) as against the 1^st accused and under Section 7 read with 109 IPC and u/s.13(2) read with 13(1)(e) read with 109

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of IPC as against the 2^nd accused. The prosecution in order to substantiate the case, examined P.Ws.1 to 14 and produced Exhibits P.1 to P.13 and M.Os.1 to 3 before the trial court. Since the complainant Arumugam passed away prior to commencement of trial, he was not examined to substantiate the complaint.

Based on the above materials, the lower court framed charges against the first accused under Section 7, 13(2) read with 13(1)(e) of the Act and against the second accused under Section 7 read with 109 IPC and under Section 13(2) read with 13(1)(e) read with 109 IPC. When the incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. But they have not examined any witness on their side and no document was marked. Their defence was a total denial.

The trial court taking into consideration the oral and documentary

evidence placed before it, found the accused guilty and convicted them as narrated in the first paragraph of this judgment. Aggrieved over the same, both the appellants/accused have come forward with the appeal contending that as the complainant was not examined due to his demise, no reliance ought to have been placed on the complaint given by him. It is further pointed out that 1^st appellant/1^st accused was stated to be in-charge of Thunjam Village at the relevant point of time but the same was not

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established by any documentary evidence by the prosecution and the trial court has failed to take into consideration the same. The 2^nd accused is stated to be the self appointed Assistant of the 1^st appellant/1^st accused, but there is no evidence produced before the court to establish the same. The trial court also failed to consider the evidence of P.W.2 that two days prior to his examination in the trial court, prosecution gave written scripts as to the nature of evidence to be given by him. Likewise the admission of P.W.2 that he is the relative of P.W.1/Complainant was also not considered. Similarly the claim of P.W.3 about receiving the requisition letter from complainant Arumugam to survey the land in respect of suit property in O.S.No.293 of 1999, at Thunjam Village, was not established. Further the admission of P.W.3 that there is separate surveyor for P.V.Kalathur Village is not taken into consideration. The sanctioning authority also has not given any valid reason while giving sanction to prosecute against the 1^st accused. Further the prosecution has failed to establish the fact of demand of illegal gratification by the 1^st accused and that is fatal to the prosecution case. The learned counsel for the appellants also pleaded that the trial court has not appreciated the evidence properly and the conclusion arrived at by the trial court is to be set aside. Hence, the appellants seeks to entertain the appeal.

The learned senior counsel for the appellants/accused contended that as the complainant Arumugam has not given evidence relating to the

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demand of illegal gratification by the 1^st accused and the same is not available, the evidence of P.W.2 who was the witness to the trap proceedings is of no use, to prove that any demand was made by the 1^st appellant herein. According to the learned senior counsel, in the absence of any material before the court to prove that any demand of illegal gratification was made by the 1^st accused/1^st appellant herein, the essential ingredient to prove the offence under Section 7 and 13 of the Act is not available and on that ground alone, the accused are to be acquitted. It is further pointed out by the learned counsel for the appellants that even if recovery of tainted money from the appellants is established, unless there is material to prove the fact of demand by the 1^st accused, which is the basic essential for proving any offence under Sections 7 and 13 of the Act, the conviction of the appellants by the trial court is not sustainable both on law and facts. The learned counsel for the appellants also pointed out that in the case on hand there is nothing on record to show that the money was recovered from the 1st appellant/1^st accused who is a Government Servant but it is only claimed that the amount was recovered from the 2^nd appellant/2^nd accused who is stated

to be the Private Personal Assistant of the 1^st appellant/1^st accused. The learned counsel for the appellants pointed out that there is no clear cut categorical evidence to establish the fact that the 2^nd appellant/2^nd accused being the Personal Assistant of the 1^st accused herein.

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In the case on hand, as stated above, since the complainant has passed away, the only witness to speak about the demand of illegal gratification by the accused is the trap witness P.W.2. According to him, while he was working as Regional Joint Director, Kancheepuram, on 12.05.2000, at about 11.30 a.m., he was asked to report before Deputy Superintendent of Police, Vigilance and Anti corruption, and accordingly, he reached there by 12.30 p.m; along with him another Government Official Manokaran was present and they were briefed by the Inspector of Police, P.W.12 Malaichamy about the complaint lodged by one Arumugam of Thunjam Village. After the useful briefing about trap laying procedure, P.W.2 accompanied the deceased complainant Arumugam to Thirukazhukundram, where the 1^st accused /Surveyor Varadachari was working and they reached

Taluk Office at 3.15 pm., and from there, P.W.2 accompanied the deceased complainant Arumugam to the house at Door No.6, South Mada Street, Thirukazhukundran, wherein the 1^st accused Varadachari was present in a

room. According to P.W.2, the 1^st accused Varadachari was introduced to him by the complainant Arumugam and he introduced himself as relative of Arumugam and they discussed for about half-an-hour. At that time, the 1^st accused Varadachari asked Arumugam, whether he brought the money demanded by him and Arumugam replied in positive, took out the amount from his pocket and as he gave the said sum of Rs.1000/- which is marked as M.O.1 Series to the 1^st accused, he asked the complainant to handover the

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money to his Personal Assistant, A-2 Selvam, who is available at the Verandah. P.W.2 further stated that the same was known to A-2 Selvam and accordingly the ten hundred rupees notes which is marked as M.O.1 was handed over to A-2 Selvam who is the Assistant of A-1 Varadachari and after receiving the same, A-2/Selvam told to A-1/Varadachari that the amount is correct. Thereafter, as instructed by P.W.12 Inspector of Police, the complainant Arumugam went out and gave signal and immediately the Police rushed inside and secured both the accused and recovered the amount from A-2 Selvam. P.W.2 also stated that the hands of A-2 Selvam was dipped in solution and the colour changed. The said solution is marked as M.O.2 and M.O.3. According to P.W.2, himself and Manokaran signed in the same. Thus the only eyewitness to the occurrence of handing over the money by the complainant to the accused is P.W.2 who has deposed as stated above. Pointing it out, the learned counsel for the appellants contended that there is no specific demand of illegal gratification by the 1^st accused and in the absence of any evidence to that effect, the claim of the prosecution that the 1^st accused demanded and received illegal gratification from the deceasedcomplainant is unsustainable.

On the other hand, the learned Additional Public Prosecutor contended that even though the complainant Arumugan could not depose, the evidence of P.W.2 along with material seized and recovered from the

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premises where A-1 and A-2 were present will clearly prove the fact of demand of illegal gratification and acceptance of the same by the 1^st accused. The learned Additional Public Prosecutor pointed out that the evidence of P.W.2 and the fact that the 1^st accused was approached to measure the property of the complainant as per the order of the civil court, will categorically prove the fact of demand of illegal gratification by the accused herein. The learned Additional Public Prosecutor in support of his contention, relied upon the Ruling of the Apex Court in the case of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra reported in 2001 Crl L.J.175 to contend that it is sufficient if the public servant was found to be in possession of currency notes smeared with phenolphthalein and the same has been recovered from him, it is sufficient to draw the legal presumption under the relevant Section and the prosecution need not prove further that the money recovered was paid to him as illegal gratification. In the said ruling, it is held as follows:-

“ So the word 'gratification' need not be stretched to mean reward because reward is the utcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like “gratification or any valuable thing”. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the

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context to mean any payment for giving satisfaction to the public servant who received it. Presumption can be drawn if public servant is found in possession of currency notes smeared with phenolphthalein and the prosecution does not have further duty to prove beyond the fact that prosecution witness had paid the demanded money to the appellant, public servant.”

Refuting the same, the learned senior counsel for the appellants contended that subsequent to the above said ruling, the Larger Bench of the Apex Court has categorically held that unless and until the fact of demand of illegal gratification by the Government Servant is established by the prosecution, even if any money is recovered, the same is not sufficient to prove the guilt of the accused under Sections 7 and 13 of the Act. In support of the same, he relied upon the Ruling of the Supreme Court in the case of

P.Satyanarayana Murthy Vs Dist. Inspector of Police and another reported in 2015 Crl.L.J.4670, wherein it is held as follows:-

“ 20. In a recent enunciation by this Court to discern

the imperative pre-requisites of Sections 7and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a

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public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.”

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It is clear that as pointed out by the learned counsel for the appellants the Larger Bench of the Apex Court has held that unless and until the demand of illegal gratification by the Government Servant is proved, the prosecution case has to fail. In the case on hand, as stated above, the evidence of P.W.2 is not sufficient to establish the demand of illegal gratification by the 1^st appellant/1^st accused herein. Further in the case on hand, the amount has not been recovered from the 1^st accused, but it is allegedly recovered from the 2^nd appellant/2^nd accused-Selvam, who is stated to be the Private Personal Assistant of the 1^st accused herein. P.W.2 has not stated anything about the presence of the 2^nd appellant/2^nd accused in the room wherein, the alleged conversation took place between the 1^st appellant/1^st accused and the deceased complainant. Except the evidence of P.W.2 that the 2^nd accused knew about the demand of 1^st accused, there is no material before the court to prove that the 2^nd accused was aware of any demand of 1^st accused and received the same with the knowledge that the

same being illegal gratification. According to P.W.2, they went to the private premises where A-1 was stated to be the present along with A-2. P.W.2 in

his cross examination has stated as follows:-

fhl;odhh;/ nghyPrhhplk;. jhYf;fh Mgprpw;F brd;nwhk;. m';F tujhr;rhhpahh; ,y;iy vd;W ehd; Twtpy;iy/ ///

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tujhr;rhhpahh; tPl;L tuhz;lhtpy; itj;Jjhd; bry;tk;

gzk; bgw;Wf;bfhz;lhh;/ vjphp bry;tk; tuhz;lhtpy; gzk; th';fpdhh; vd;W nghyP!; tprhhizapy; Twpa[s;nsd; vd;W brhd;dhy; vdf;F "hgfkpy;iy/ “

P.W.2 further stated as follows:-

“;rk;gtj;jpw;F Kd;g[ tujhr;rhhp kw;Wk; bry;tk; ,Utiua[k; ehd; ghh;j;jJ ,y;iy/ bry;tk; ahh; vd;d vd;W tujhr;rhhpahh; brhy;ypj;jhd; vdf;F bjhpa[k;/ bry;tk; tujhr;rhhpahhplk; gp/V/ thf ,Uf;fpwhh; vd;W brhd;dhh;/ bry;tk; tujhr;rhhpahhplk; vLgpoahf ,Ug;gjhft[k; brhd;dhh;/ bry;tj;ij vjphp tPl;oy; ghh;f;Fk; nghJ bry;tk; ahh; vd;W bjhpahJ/ MWKfk; mth; ahh; vd;W Twtpy;iy/ bry;tj;ij ifJ bra;tjw;F Kd;g[ thf;FK:yk; gjpt[ bra;jhh;fsh ,y;iyah vd;W vdf;F "hgfk; ,y;iy.“

Thus P.W.2 contradicts himself from his evidence in chief by stating A-2 was introduced by A-1 and subsequently stating that he was unaware as to who was A-2. In such circumstances, the evidence of P.W.2 is not inspiring and it

is not sufficient to establish the claim of prosecuting about illegal demand by

the 1^st appellant herein. Thus, P.W.2 evidence is of no use to prove the fact of demand by 1^st accused and likewise it does not support the case of the prosecution that the amount was received by A-2 on instruction of A-1 with the knowledge that the amount was illegal gratification.

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The sanctioning authority who accorded sanction to prosecute the 1^st accused while deposing as P.W.1 has categorically stated that after perusing all the relevant records, he gave Ex.P.1-Sanction to prosecute the 1^st accused. Admittedly, the Village Thunjam wherein the property of the complainant is situated was sought to be measured and the same comes under P.V.Kalathur Firka. P.W.1, Sanctioning Authority stated that there is separate surveyor for P.V.Kalathur Firka and the 1^st accused Varadachari was functioning at that point of time as Thirukazhukundram Firka Surveyor. Similarly, the then Deputy Tahsildar of Thirukazhukundram, who deposed as P.W.3 stated that while he was on duty on 02.05.2000 one Arumugam of one Thunjam village coming under P.V.Kalathur Firka submitted a requisition which is marked as Ex.P.4 with Ex.P.5 and Ex.P.6 enclosures and he forwarded the same to concerned branch of the Taluka office. In the said petition, request was made by Arumugam seeking to measure the land in Thunjam Village, relating to case in O.S.No.293 of 1999. P.W.3 stated that he knew Varadachari and he was working in Thirukazhukundram as Firka Surveyor and he was holding Additional charge of P.V.Kalathur Firka at that time. P.W.3 in his cross examination stated that he did not mention from whom Ex.P.4 petition was received; at that point of time, there was separate surveyor for P.V.Kalathur village. Nothing is stated by P.W.3 or the Investigating Officer of the case as to during which period the 1^st accused

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held additional charge of P.V.Kalathur village and no material is placed before the court to show as to how long he was holding the additional charge of P.V.Kalathur Village.

The prosecution examined P.W.4 who stated that he is practicing as Advocate and in respect of O.S.No.293 of 1999 on the file of District Munsif Court, Chengalpet, an order was passed in I.A.1257 of 1999, appointing him as Advocate Commissioner to measure the property of Arumugam and Durai and accordingly he gave Ex.P.4 letter to Thirukazhukundram Tahsildar seeking assistance of Surveyor. He also admitted Thunjam Village is in P.V.Kalathur Firka.

According to P.W.5, while he was working as Draftsman in Thirukazhukundram Taluka Office, in respect of O.S.No.293 of 1999, a petition was received seeking assistance of Firka Surveyor to measure the

property of Thunjam village of P.V.Kalathur firka and the relevant entry made in the Register is marked as Ex.P.8 and handed over the same to the 1^st accused herein-viz., Varadachari and his acknowledgement signature is Ex.P.9 Similarly P.W.6 who was working in the Thirukazhukundram Taluk office has stated that on 04.05.2000, he received Ex.P.4 petition from Advocate Velmurugan along with Ex.P.5 and Ex.P.6 enclosures and after making Ex.P.8 entry in the Register, forwarded the same to P.W.5-

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Rajalakshmi, for follow up action. According to him, the post of Firka surveyor of Ponvilaintha Kalathur fell vacant at that point of time and the 1^st accused was holding the post of additional in-charge of Surveyor also. Except for the oral evidence of P.Ws.1, 5 and 6, no material is placed before the court as to from which date to which date, the 1^st accused was holding the additional post of P.V.Kalathur Firka. Pointing it out the learned senior counsel for the appellants contended that in the absence of any material being placed before the court about the 1^st accused holding additional charge of P.V.Kalathur Firka, it cannot be concluded on the oral evidence of P.W.2 that the 1^st accused was holding additional charge. Further it is contended by the learned senior counsel for the appellants that even assuming that he was holding additional charge, there is nothing on record to prove that he demanded illegal gratification for measuring the property and as such the prosecution case has to fail.

Following the above said ruling of the Larger Bench of Supreme Court (2015 Crl.L.J.4670) (cited supra), it is clear that the prosecution

has not produced material before the court to prove that the 1^st accused was holding additional charge of P.V.Kalathur at the relevant point of time and there is no evidence to show that the demand of illegal gratification was made by the first accused. In such circumstances in the absence of any material to prove the fact of demand by the 1^st accused, following the above

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said Ruling of the Apex Court, it is clear that the prosecution case has to fail for want of evidence to establish the demand of illegal gratification by the 1^st accused. Further there is nothing on record to show that the 2^nd accused was acting as Personal Assistant of the 1^st accused.

As stated earlier, the evidence of P.W.2 is contradictory. It is not safe to rely upon his evidence to hold that A-2 was the Personal Assistant of A-1. The prosecution examined P.W.7-Kumaraguru to prove the fact of A-2 being the Personal Assistant of A-1, but he was treated as hostile witness. According to P.W.7, he knew the accused and they were living opposite to his house in Thirukazhukundram. After saying so, P.W.7 contradicted himself by saying that he has not seen the accused and do not know as to what they were doing. P.W.7 further stated that he is working as Goldsmith and usually he goes to shop by 6 a.m., and return only in the evening. P.W.7 also stated that he was away in his shop at the occurrence time and he does not know anything personally except what was stated by his wife.

It is clear that except the oral evidence of P.Ws.2 and 7, to prove the fact of the 2^nd accused acting as Personal Assistant of 1^st accused herein, no other acceptable evidence is available. As stated earlier, the prosecution also examined another witness P.W.9, to prove the relationship of A-2 with A-1 and he has stated that he was residing in South Mada Street,

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Thirukazhukumdram and the 1^st accused Varadachari was working at Taluk Office. P.W.9 stated that he is also residing in the same house with A-1 and A-2 Selvam was assisting the 1^st accused. However, in the cross examination, P.W.9 stated that he does not know as to what work the 2^nd accused was doing. In such circumstances there is nothing on record to show that the 2^nd accused was acting as Personal Assistant of the 1^st accused and as such, the prosecution case has to fail for want of evidence to establish the demand of illegal gratification by the 1^st accused and 2^nd accused worked as Personal Assistant of A-1 Varadhachari. The Inspector of Police who deposed as P.W.13 has stated that the village concerned is in P.V.Kalathur Firka and for that area, one Mohandoss was working as Land Surveyor and he did not examine the said Surveyor. In such circumstances, it is clear that the prosecution has not established the fact that A-1 and A-2 together committed the alleged offence and that only as advised by A-1, the amount was collected by A-2. Further the fact of demand of illegal gratification is not established by proper acceptable evidence. It is also pointed out that P.W.2 the official witness during the trap proceedings has been instructed by the Police to depose in particular manner by providing notes of evidence two days prior to his examination before the court. P.W.2 in his evidence has stated as follows:-

“ ehd; bfhLj;j thf;FK:yk; nghyPrhh; ,uz;L ehl;fSf;F

Kd;g[ vGjp bfhLj;J vd;id gof;fr;brhy;yp bfhLj;jhh;fs;/“

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In such circumstances, even though the prosecution has examined P.W.2-

trap witness to prove the fact of trap proceedings and examined P.W.11, the Forensic Expert who gave Ex.P.10 report, stating that M.Os.1 and 3 contained sodium carbonate and phenolphthalein, to support the case of the prosecution, in the absence of clear cut evidence to prove the demand of illegal gratification and acceptance by the 1^st accused and in that process, he was assisted by the 2^nd accused is not clearly established beyond reasonable doubt and as such, the charge against them cannot be accepted as proved and the reasons stated by the trial court for arriving at the conclusion that the accused are guilty of the offence alleged by the complainant is unsustainable and the same is liable to be set aside.

In the result, the criminal appeal is allowed. The conviction and sentence passed in Sessions Case No.12 of 2001 passed by Special Judge cum Chief Judicial Magistrate, Chengelpet, are set aside. The

appellants/accused are acquitted. Bail bond, if any executed by them shall stand cancelled. Fine amount, if any paid by them is ordered to be refunded forthwith.

19.07.2017

Index : Yes/No Speaking / Non Speaking nvsri

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S.BASKARAN, J.

nvsri

To
1.The learned Special Judge cum Chief Judicial Magistrate, Chengelpet,
2.The Public Prosecutor,High Court, Madras.
3.The Section officer, V.R.Section, High Court, Madras.
Judgment in
Crl.A.No.74 of 2010
19.07.2017

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