The High Court dismissed a criminal appeal against conviction and corruption charges. While confirming the guilt for demanding a bribe for a custody report, the court reduced the rigorous imprisonment term to simple imprisonment but maintained the fine.
Conviction confirmed; rigorous imprisonment reduced to simple imprisonment; fine maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.A.No.43 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.11.2023
PRONOUNCED ON: 18.12.2023
Coram
The Honourable Mr. Justice A.D.JAGADISH CHANDIRA
Crl.A.No.43 of 2018
N.Thilaga W/o Karthikeyan, Central Chennai Probationary Officer, Social defence Department, Purasaiwakkam High Road, Kellys, Chennai-600 010. ... Appellant/Sole Accused
Vs.
The State represented by The Inspector of Police, Vigilance and Anti Corruption, Chennai. ... Respondent/accused
Criminal Appeal is filed under Section 374(2) of Cr.P.C., against the judgment of conviction made in C.C.No.20 of 2012 dated 05.01.2018 on the file of Special Court for the cases under Prevention of Corruption Act at Chennai.
For Appellant : Mr.V.Krishnamoorthy For Respondent : Mr.C.E.Pratap, Government Advocate (Criminal side)
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JUDGMENT
The present Criminal Appeal has been filed by the sole accused in
C.C.No.20 of 2012, challenging the judgment of conviction and sentence dated 05.01.2018 rendered by the Special Judge for the cases under Prevention of Corruption Act at Chennai.
2. The sentence imposed upon the appellant is as under:-
| Under Section | Sentence |
|---|---|
| 7 of Prevention of Corruption Act, 1988 |
one year of rigorous imprisonment and a fine of Rs.1,000/-, in default, to undergo three months simple imprisonment. |
| 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 |
two years of rigorous imprisonment and a fine of Rs.1000/-, in default, to undergo three months simple imprisonment. |
3. Prosecution's version:
3.1. The appellant/accused viz.,N.Thilaga was working as
Probationary Officer, Social Defence Department, Purasaivakkam High Road, Kellys, Chennai-10, from 08.12.2008 to 24.05.2011 and she is a public servant under Section 2(c) of Prevention of Corruption Act, 1988.
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3.2. The defacto complainant-Shanthi, who is a habitual offender, was arrested and remanded to judicial custody in a criminal case. Since the defacto complainant's minor daughter xxxx was left alone, one Selvi, who is the sister-in-law of the defacto complainant, had handed over minor xxxx to the Government Girls Home, Purasaiwakkam, Chennai.
3.3. When the defacto complainant was released on bail, she went to the Government Girls Home and took her daughter to her house without the knowledge of the Government Girls Home Authorities, thereby the said authorities had lodged a complaint against the defacto complainant for kidnapping the child and once again she was remanded to judicial custody and the child was brought back to the Home.
3.4. After her release on bail, she had given an application to the Chairperson of the said Home seeking to handover the custody of her daughter. When the same was refused, the defacto complainant had filed a Habeas Corpus Petition before this Court. Once again, when the defacto complainant had approached the Chairperson of the Home seeking custody of her daughter, the Chairperson had advised her to withdraw the Habeas 3/27
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Corpus Petition. As per the request of the Chairperson, the defacto complainant withdrew the writ petition and again requested for the custody of her minor daughter xxxx. The Chairperson informed her that she had to obtain a report from the Probationary Officer(Central Chennai) for the custody of her child.
3.5. On 20.05.2011 at 10.00hrs when the defacto complainant had
approached the Probationary Officer(Central Chennai) viz.,the accused for a report in her favour for taking her daughter back to her house, the accused had demanded a sum of Rs.5,000/- and a Refrigerator. As the defacto complainant had expressed her inability, the accused had directed her to pay a sum of Rs.5000/- initially and to give the Refrigerator later.
3.6. The defacto complainant, who was not willing to pay the bribe,
had given a complaint to the respondent on 24.05.2011 and a trap was organized. On the same day, when the defacto complainant met the accused, she reiterated her demand of Rs.5000/- as illegal gratification other than remuneration and thereby, the accused had committed an offence under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act. 4/27
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3.7. The appellant/ accused was arrested on 24.05.2011 and thereafter, the respondent, after completion of the investigation, had filed the final report before the trial Court and the same was taken on file on 17.10.2012.
3.8. On issuance of summon, the accused had appeared before the trial Court on 19.10.2012 and the memo of appearance was filed through her counsel. In due compliance of Section 207 Cr.P.C., copies were furnished to the accused.
3.9. After hearing both sides, charges were framed against the
accused for the offences under Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The accused denied the charges and sought to be tried.
3.10. On the side of the prosecution, P.Ws.1 to P.W.8 were examined
and Exs.P1 to P17 and M.Os.1 and M.O.2 were marked.
3.11. Based on the incriminating evidence against the accused, when
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she was questioned under Section 313 Cr.P.C., the accused pleaded not
guilty. However, no evidence has been let in on the side of the defence and no documents were marked.
well as the defence, found the accused guilty and sentenced her to undergo imprisonment as stated above. Against the judgment of conviction and sentence imposed by the trial Court, the present Criminal Appeal has been filed.
appellant/accused, while assailing the impugned judgment of conviction and sentence, would contend as follows:
her evidence has to be scrutinised with due caution and in this
case, she being antagonized for not releasing her minor daughter xxxx, had given a false complaint, as if, the appellant had demanded a
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bribe of Rs.5,000/- and a Refrigerator for giving a favourable report to get back the custody of her child.
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hand over the child and in such circumstances, the question of preparation of report by the appellant does not arise at all and thereby, the probability of demand would not arise in this case.
been properly considered by the trial Court. The case of lending Rs.5,000/- and receiving back the said loan of Rs.5,000/- has been falsely projected as a case of demand and acceptance. No proper investigation has been done by P.W.8 with regard to the filing of the Habeas Corpus Petition and as a result thereon, no documents have been filed, which are essential for bringing out the truth in this case.
(viii)Though a statement was stated to have been recorded from the accused under Rule 47 of the DVAC Manual, the same has not been sent to the Court, thereby creating a doubt with regard to the prosecution case.
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5.1. In reply, Mr.C.E.Pratap, learned Government Advocate (Criminal side), appearing for the respondent would submit that initially, demand of illegal gratification of Rs.5000/- and Refrigerator for issuing a favourable report was made by the accused from P.W.6-defacto complainant on 20.05.2011(Friday). He would further submit that Ex.P9 is the requisition made by P.W.6 seeking for report and in the said requisition, it has been stated that the Habeas Corpus Petition in H.C.P.No.1805 of 2010 has been dismissed, a report has to be necessarily given by the Probationary Officer. Thereafter, when P.W.6-defacto complainant had replied that she does not have enough money, the appellant/accused had insisted her to take time till Monday and asked her to pay the amount on Tuesday(24.05.2011) and to give Refrigerator at a later point of time. It is clear from the above evidence that on 20.05.2011, P.W.6 had approached the Probationary Officer for getting a report and the complaint was lodged by P.W.6-defacto complainant on 24.05.2011(Tuesday), on which date the appellant/accused had agreed to receive the bribe money and thereby, there was no delay in giving complaint to P.W.7-Inspector of Police.
5.2. He would further submit that based on the demand for illegal
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gratification, P.W.6-defacto complainant had preferred Ex.P11-complaint on 24.05.2011, based on which, a case in Crime No.11/2021 was registered under P13-First Information Report on the same day for the offences under Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, a trap was organised and an official witness P.W.2 was summoned and after demonstrating about the phenolphthalein test and the trap procedure to P.W.2-Murugesan and one Palaniappan, who are the official witnesses and P.W.6-defacto complainant, they were advised to meet the accused with the trap money at the office of the appellant/accused and she was arrested after she had received the tainted money. The money was recovered from the table drawer of the accused and phenolphthalein test was conducted, proved positive and thereby, the demand and acceptance are clearly proved by cogent evidence of P.W.6-defacto complainant, P.W.2-shadow witness and the evidence collected during the trap laying procedure also proved that the accused had accepted the tainted money. The serial numbers of the bribe money recovered from the accused was also tallied with the serial numbers in Ex.P2- Entrustment Mahazar and thereby, recovery also stands proved.
5.3. He would also submit that P.W.7-Trap Laying Officer has
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clearly deposed that after arresting the accused, the procedure contemplated under the DVAC Manual has been complied with and non sending of the statement to the Court would not vitiate the prosecution case and the prosecution has proved its case beyond any reasonable doubt and thereby, he would pray for dismissal of the criminal appeal.
with law and (ii) whether it is based on proper appreciation of evidence regarding demand, obtainment and recovery. 11/27
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prosecution has mainly relied on the evidence of P.Ws.1 to P.W.8. P.W.2 is an official witness; P.W.3 is the Superintendent, incharge of the Government Girls Home, Purasaiwakkam, Chennai; P.W.4 is the Forensic Expert; P.W.5 is the staff of the Government Juvenile Care Home; P.W.6 is the defacto complainant; P.W.7 is the Trap Laying Officer and PW.8 is the Investigating Officer.
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Home Authorities. Thereby, the authorities had laid a complaint against P.W.6-defacto complainant for kidnapping her daughter and once again P.W.6 was remanded to judicial custody. After her release on bail, she had given an application to the Chairperson of the said Home seeking to handover the custody of her daughter. As her request was denied by the Home Authorities, P.W.6 had filed a Habeas Corpus Petition and again when she had approached the said Chairperson, who, in turn, had directed her to withdraw the said Habeas Corpus Petition. P.W.6-defacto complainant had also withdrew the Habeas Corpus Petition and filed an application on 19.05.2011 under Ex.P9 seeking custody of her minor daughter xxxx. The Superintendent of the Home had informed her that she should obtain a report from the Probationary Officer and the custody of her daughter would be handed over only after obtaining the report. P.W.3Superintendent, incharge of the Government Girls Home, had called for a report of the accused vide Ex.P8- letter dated 19.05.2011.
requested her to send a report and by that timethe accused had demanded a sum of Rs.5,000/- and a Refrigerator as illegal gratification to send a report 13/27
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in her favour. When P.W.6 had expressed her inability, the accused had insisted her to bring a sum of Rs.5000/- on Tuesday and directed her to get the Refrigerator later. The defacto complainant, who was not willing to pay the bribe, had lodged a complaint-Ex.P11 to P.W.7- Inspector of Police, V&AC, SIC, Chennai-28. On receipt of the complaint, P.W.7 had conducted a discreet enquiry and registered a case in Crime No. No.11/2021 under P13-First Information Report on the same day for the offences under Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The above evidence would clearly prove that there is no delay in lodging a complaint under Ex.P11 by P.W.6.
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of the case. The serial numbers of bribe money were noted down by PW7 in Ex.P.2-Entrustment Mahazar. Thereafter, demonstration with regard to Sodium Carbonate solution and trap laying procedures were explained to the witnesses. As per the directions of PW7, the official witness viz.,Palaniappan had counted the currency notes and chemical test on the normal hands of the said Palaniappan was done. Later, Phenolphthalein Powder was smeared on the currency notes and the same were counted by the official witness Palaniappan and once again, chemical test was conducted on the hands of official witness Palaniappan and demonstration with regard to change of currency was also done. After the demonstration of the chemical test, the tainted money Rs.5,000/- was entrusted to PW6 with an instruction to handover the same to the accused only if the demand was made by the appellant/accused and with further instruction to give signal by rubbing her head on acceptance of the tainted money by the accused. The official witness P.W.2-Murugesan was instructed to accompany PW6defacto complainant and to observe the happenings and conversation between the defacto complainant and the accused. Ex.P2-Entrustment Mahazar was prepared in the presence of PW6-defacto complainant, P.W.2Murugesan and the other official witness-Palaniappan. After the trap was 15/27
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finalized, PW7-Trap Laying Officer, PW6-defacto complainant and official witnesses PW2-Murugesan and Tr.Palaniappan and Police party proceeded to the office of the accused.
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Trap Laying Officer had arrested the accused at 12.20p.m., and on enquiry, the accused had handed over M.O.2-tainted money, which was received by her from her table drawer and the serial numbers of the currency notes recovered from the accused was verified by comparing with the serial numbers in Ex.P2-Entrustment Mahazar and found that they tallied. PW7Trap Laying Officer had recovered the documents, viz., letter addressed by P.W.3-Superintendent of Home calling for the report of the accused in respect of minor daughter xxxx under Ex.P.8, Printed Xerox form 35-Ex.P.5 and Ex.P.7-Order dated 13.08.2010 of the Child Welfare Committee and Ex.P14-incomplete report of the accused, dated 24.05.2011 and prepared Ex.P3-Seizure Mahazar in the presence of PW2 and the other Official witness Tr.Palaniappan. Thereafter, he had prepared Ex.P15-Rough Sketch. After advance intimation under Ex.P.16, he has proceeded to the house of the accused, at C17, TNHB, East Coast Road, Shenoy Nagar and conducted a search in the house of the accused in the presence of the official witnesses and the accused. During the search, nothing was recovered and he had prepared Ex.P4-Search Report. After adding Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, he had remanded the accused to judicial custody along with alteration report under Ex.P17. 17/27
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Thereafter, he had handed over the case records to PW8-Inspector of Police for further investigation. On receipt of the records, P.W.8 had recorded the statement of P.W.6-defacto complainant, official witnesses P.W.2Tr.Murugesan and Tr.Palaniappan, P.W.3-Deputy Superintendent of Government Girls Home, P.W.5-Vijayakumari. Thereafter, he had obtained Ex.P10-Chemical Analysis Report from P.W.4, recorded her statement and obtained the statement of PW7-Trap Laying Officer. After completion of investigation, he had obtained the Sanction Order under Ex.P.1 and had also recorded the statement of PW1, who accorded the sanction and after completion of the investigation he had laid Final Report against the accused for the offence punishable under Sections 7, 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
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had entered into the office as per the directions of accused and the accused had reiterated the demand and received the tainted money and kept it in his table drawer. After receipt of the bribe money by the accused, P.W.6 and P.W.2 had come out and given pre-arranged signal and thereafter, P.W.7 along with his party had gone inside the office and arrested the accused and conduced phenolphthalein test on the right hand of the accused and thereafter, recovered the tainted money and found that the serial numbers were tallied with that of the serial numbers in Ex.P2-Entrustment Mahazar. The evidence of P.W.6, P.W.2 and P.W.7 are cogent and clear in respect of demand prior to trap, demand during trap, obtainment and recovery of the tainted amount. The evidence of P.W.6 about the demand made by the accused is corroborated by the evidence of P.W.2 and thereby, the demand and acceptance have been proved by the prosecution beyond reasonable doubts. In such circumstances, legal presumption is raised under Section 20 against the accused and a duty is cast on the accused to rebut such presumption.
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availed by P.W.6-defacto complainant and (ii) P.W.6, who is a habitual offender, along with her Advocates, had come to the office of the appellant/accused and compelled her to hand over her child and there was a quarrel and since the accused had refused to hand over the child, P.W.6 had developed enmity and grudge against the appellant/accused and thereby, the complaint itself is an intentional one which cannot be the basis for the conviction.
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reasonable doubts.
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receipt of the Ex.P9-application from the defacto complainant for return of the custody of her daughter, she had called for a Report from the accused through Ex.P8 letter, however, she had not received any report from the accused. P.W.5, the staff of the Government Juvenile Care Home also reiterated the above facts and deposed that P.W.8-Inspector of police had enquired about the above facts. P.W.6-defacto complainant had also deposed that she gave an application on 19.05.2011 and a report was called for by P.W.3 vide Ex.P8-letter from the accused and the same was pending with the accused on the date of trap. Ex.P9 is the requisition made by P.W.6 seeking for report and in the said requisition, it has been stated that as Habeas Corpus Petition has been dismissed, a report has to be necessarily given by the Probationary Officer. The evidence of P.W.2, P.W.3, P.W.5 and P.W.6 would clearly establish that a report was called for from the accused and the same was pending with her on the date of trap i.e., 24.05.2011. Therefore, the contention raised by the learned counsel for the appellant that when an order has been passed by this Court in the Habeas Corpus Petition directing release of the child, there is no requirement for obtaining a report from the Probationary Officer cannot be countenanced and the non-production of the order passed in Habeas Corpus petition does 23/27
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not affect the prosecution case. It is also pertinent to note that Ex.P9 is clear in respect of withdrawal of the Habeas Corpus Petition by P.W.6. Further, taking into consideration the facts of the case, this Court finds that non sending of the statement of the accused does not destroy or impair the prosecution case.
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Prevention of Corruption Act while confirming the fine amount imposed for
both offences.
20. In the result, this criminal appeal is allowed in part to the limited extent of modifying and reducing the sentence alone imposed by the trial Court and thereby, while confirming the conviction made by the trial Court against the appellant/accused for the offences under Section 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, the sentence of rigorous imprisonment for one year imposed on the appellant/accused for the offence under Section 7 of Prevention of Corruption Act, 1988 is modified to one year simple imprisonment and the sentence of rigorous imprisonment of two years imposed on the appellant/accused for the offence under Section 13(2) read with 13(1)(d) is modified and reduced to a period of one year simple imprisonment . The sentence of fine imposed by the trial Court, with the default sentence thereon, is maintained. The sentences shall run concurrently. The period of imprisonment suffered so far, if any, shall be set off under Section 428 of Cr.P.C. The trial Court shall take necessary steps to secure the appellant/accused to undergo the remaining period of sentence.
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part.
18.12.2023.
Index:Yes/No raa
Note to Office :
1. Registry is directed to return the original documents, if any, to the trial Court.
2. Registry is directed to issue Judgment copy forthwith.
To
A.D.JAGADISH CHANDIRA,J.
raa
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Pre-delivery Judgment in Criminal Appeal No.43 of 2018
18.12.2023
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3 issues framed by the court
Whether the conviction and sentence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 are sustainable in law and on facts.
Whether the failure of the trial court to record the statement of the accused under Rule 47 of the DVAC Manual necessitates setting aside the conviction.
Whether the trial court was warranted in maintaining the enhanced sentence or if a reduction was called for in light of mitigating circumstances.
3 provisions across 2 enactments
N.Thilaga W/o Karthikeyan
The State represented by The Inspector of Police, Vigilance and Anti Corruption, Chennai
A.D.JAGADISH CHANDIRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
