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2017 Supreme(Mad) 2096
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
R. Balasubramanian - Appellant
Versus
State: rep. By The Inspector of Police, Special Police Establishment Central Bureau of Investigation - Respondent
Criminal Appeal No.36 of 2006
Decided On : 06-09-2017
For the Appellant : Mr. A.V. Somasundaram, M/s. Lakshmi Priya Association
For the Respondent: Mr. K. Srinivasan Special Public Prosecutor (CBI)
Headnote:
Criminal Procedure Code,1973 - Section 215 and 212 - Prevention of Corruption Act, 1988 – Section7,13(1)(d)(i) and(ii),20 and 13 - Aggrieved by conviction and sentence passed by learned Principal Special Judge for CBI cases, in C.C.No.53 appellant/accused is before this Court with this Criminal Appeal - Appellant/accused was an employee of Bharath Sanchar Nijam Limited holding post of Sub Divisional Engineer - He is a public servant as per provision of Prevention of Corruption Act - Based on complaint given by one Proprietor, to Superintendent of Police, Anti-Corruption Branch, CBI, alleging that appellant/accused demanded him illegal gratification to certify travel bills amounting - A case was registered and after following necessary protocol for trap, defacto complainant accompanied by one went to Office of appellant/accused and gave tainted currency on demand made by accused - Thereafter, money was recovered from accused. - Tainted currency were compared with serial number recorded in the pre-trap proceedings and after conducting phenolphthalein test, accused was arrested and case was registered for offence - Sanction to prosecute was obtained from member (Services) Department of Tele Communication, who is competent authority to remove officers of rank of Sub Divisional Engineer – Held, As pointed out earlier, neither in complaint nor in Exs.P.10, 22 & 40, nor through other evidences, prosecution could able to establish fact that date on which bills were presented - Prosecution is unable to explain when endorsement found in these documents indicating accused/appellant had certified bills for clearance - When there is a plausible explanation has been placed by accused/appellant coupled with evidence of D.W.1 and D.W.2 and exhibits D.1 and D.2 which are much prior to complaint marked as Ex.53, it is unfortunate that trial Court has failed to appreciate these evidences in its proper perspective - Since, trial Court has failed to give credence to exhibits relied by defence and given undue reliance upon prosecution witnesses has led to miscarriage of justice leading to conviction of appellant - Hence, this Court holds that trial Court judgment is liable to be set aside - In the result, Criminal Appeal is allowed and conviction and sentence imposed by learned Principal Special Judge for CBI cases, in C.C.No.53 are set aside - Appellant/accused is acquitted from charges and he is set at liberty unless his presence is required in connection with any other case - Bail bond, if any executed by appellant/accused shall stand canceled. Fine amount, if any, paid by appellant shall be refunded to him – Order accordingly.
1. Aggrieved by the conviction and sentence passed by the learned Principal Special Judge for CBI cases, Chennai, dated 23.12.2005, in C.C.No.53 of 2003, the appellant/accused is before this Court with this Criminal Appeal.
2. Brief facts, leading to this appeal, are as follows:-
The appellant/accused was an employee of Bharath Sanchar Nijam Limited (hereinafter referred to as the BSNL) holding the post of Sub Divisional Engineer. He is a public servant as per the provision of the Prevention of Corruption Act. Based on the complaint dated 14.11.2002, given by one Mr. Varadharajulu, the Proprietor of M/s. S.V. Travels, to the Superintendent of Police, Anti Corruption Branch, CBI, Chennai, alleging that the appellant/accused demanded him illegal gratification of Rs.3,000/- to certify the travel bills amounting to Rs.35,786/-. A case was registered and after following the necessary protocol for trap, the defacto complainant-Mr. Varadharajulu, accompanied by one Mr. Sadhasivam went to the Office of the appellant/accused and gave the tainted currency of Rs.3000/-, on the demand made by the accused. Thereafter, the money was recovered from the accused. The tainted currency were compared with the serial number recorded in the pre-trap proceedings and after conducting phenolphthalein test, the accused was arrested and the case was registered for offence under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Sanction to prosecute was obtained from Mr.P.K.Chandra, the member (Services) Department of Tele Communication, New Delhi who is the competent authority to remove officers of the rank of Sub Divisional Engineer. Based on the final report, the trial Court, took cognizance and framed the following charges:-
“Charge No.1:
Firstly, that you A1 R. Balasubramanian working as Sub-Divisional Engineer, OSC - I, BSNL, Chennai on 14.11.2002 demanded and accepted an amount of Rs.3,000/- from Shri S.Varadarajulu, Proprietor of M/s. S.V. Travels, Chennai as gratification other than legal remuneration as a motive or reward for certifying the bills amounting to Rs.35,787/- and thereby you R. Balasubramanian committed an offence punishable u/s 7 of PC Act, 1988 and within my cognizance.
Charge No.2:
Secondly, that you A.1 R. Balasubramanian being a public servant employed during the period as stated in the first charge, by corrupt or illegal means or by otherwise abusing your official position as such public servant obtained for yourself pecuniary advantage to the extent of Rs.3,000/- as stated in the previous charge from Shri.S.Varadarajulu and that you A1 thereby committed an offence specified u/s 13(1)(d) of P.C Act 1988 punishable U/s.13(2) of that act and within my cognizance.”
3. Since, the accused/appellant pleaded not guilty, he was tried for the above charges. To prove the charges, on the side of the prosecution, 9 witnesses were examined and 64 exhibits were marked along with 5 material objects. As a defence, on the side of the accused/appellant, two witnesses were examined and 2 exhibits were marked as Exs.D.1 and D.2.
4. The trial Court, after appreciating the evidence let in by the prosecution has found the accused guilty under both the charges and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,500/- in default to undergo rigorous imprisonment for two months for the offence under Section 7 of the Prevention of Corruption Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,500/- in default to undergo rigorous imprisonment for two months for the offence under Section 13(1)(d) of the Prevention of Corruption Act.
5. The case of the prosecution as unfolded through the witnesses is that the defacto complainant who is a Transport Contractor of the BSNL submitted bills for the month of May, June and July to a total sum of Rs.35,184/-. To certify the bills, the accused who was working as Sub Divisional Engineer, BSNL demanded an illegal gratification of Rs.3,00
