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2018 Supreme(Mad) 1840
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. JAGADISH CHANDIRA, J.
R. Gopalakrishnan - Appellant
Vs.
State by The Inspector of Police, SPE/CBI/ACB/Chennai - Respondent
Crl. A. No. 1010 of 2007
Decided On : 14-09-2018
Advocate Appeared:
For the Appellant : Mr. P. Kumaresan for Mr. S. Gunalan
For the Respondent: Mr. K. Srinivasan
Headnote:
Criminal Procedure Code,1973- Section 313, 428,313(1)(b),13(2), 13(1)(d) - Prevention of Corruption Act, 1988 - Section 13(2) r/w 13(1)(d) and 7 - Criminal Appeal is filed by the appellant/accused against the judgment passed by trial Court finding him guilty and convicting and sentencing him to undergo Rigorous Imprisonment for one year and to pay a fine in default of payment of fine to undergo one month Rigorous Imprisonment, in default - Final report filed by prosecution in brief is that one , a resident Post who is subscriber of telephone submitted an application at office for shifting of his telephone service from his old residence to his new residence falling under the same locality - Work order to effect shifting was issued by the Commercial SECTION - Since Telephone Exchange under which the residential premises located functions under the control of SDE (Groups) and JTO (Groups) of Exchange the request for shifting was communicated to Telephone Exchange – Held, trial Court had not considered the evidence of PW2 in right perspective. PW2 had deposed that the pits have been dug and 4 poles had been erected - Whereas, the trial court had given an erroneous finding as if appellant/accused had brought the poles and cables to PW2s house, but, did not carry out the work and as per the opinion of this Court the trial Court had not considered the explanation offered by the appellant/accused in the right perspective - This court is of view that amount received by the appellant/accused was towards expenses to be paid in respect of the transportation charges and wages of labourers and that appellant/accused had not obtained any pecuniary advantage for himself and that the explanation offered by the appellant/accused that the money was received towards the expenses is plausible and acceptable and that the trial court ought to have accepted the explanation - This court is of the view that the prosecution has failed to prove the offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and thereby, judgment of the trial court is liable to be set aside - Criminal Appeal is allowed and the judgment of conviction and sentence passed by the learned II Additional District Judge, Special Court for CBI Cases, Coimbatore in C.C.No.7 is here by set aside and appellant/accused is acquitted - The bail bonds executed by and on behalf of the appellant/accused shall stand cancelled and the fine amount, if any, paid shall be refunded to the appellant/accused-Order accordingly.
This Criminal Appeal is filed by the appellant/accused against the judgment passed by the trial Court finding him guilty under Section 7 of Prevention of Corruption Act, 1988 and convicting and sentencing him to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/-, in default of payment of fine to undergo one month Rigorous Imprisonment and also finding him guilty under Section 13(2) r/w 13(1)(d) of prevention of Corruption Act, 1988 and convicting and sentencing him to undergo Rigorous Imprisonment for one year and to pay a fine amount of Rs.500/-, in default to undergo one month Rigorous Imprisonment. The trial Court ordered the entire sentence to run concurrently and the period already undergone by the appellant/accused was directed to be set off under Section 428 Cr.P.C. The appeal has been filed challenging the order of conviction and sentence.
2. The appellant/accused in this case is one Mr. R. Gopalakrishnan, Telephone Mechanic, BSNL, Peruntholuvu Telephone Exchange, Tirupur.
3. The case of the prosecution according to the final report filed by the prosecution in brief is that one Mr. K.R. Kumar, a resident of Pillaiarkadu, Sivanmalaikoundampalayam, Pollikallipalayam Post, Tirupur, who is the subscriber of telephone No.2359474 submitted an application dated 03.07.2006 at the office of BSNL, Tirupur, for shifting of his telephone service from his old residence to his new residence falling under the same locality. On 13.07.2006, work order to effect shifting was issued by the Commercial Section of BSNL, Tirupur. Since Peruntholuvu Telephone Exchange under which the residential premises of K.R. Kumar located functions under the control of SDE (Groups) and JTO (Groups) of Mudalipalayam Exchange the request for shifting was communicated to Mudalipalayam Telephone Exchange, Tirupur.
4. The work order was communicated to the Lineman R. Gopalakrishnan the appellant/accused by the concerned JTO for execution of the work order. On 04.06.2006, when the subscriber K.R. Kumar met lineman Gopalakrishnan he had demanded illegal gratification of Rs.1,250/- from the de-facto complainant - K.R. Kumar as a motive for shifting the telephone service. On 15.09.2006, Gopalakrishnan was caught red-handed in front of K.R. Kumar's house when he demanded and accepted the illegal gratification of Rs.1,250/- from K.R. Kumar. Thus, by corrupt means, by abusing his position as a public servant, R. Gopalakrishnan obtained pecuniary advantage of Rs.1,250/- from K.R. Kumar.
5. On perusal of the final report, the documents and statement of witnesses relied on by the prosecution and in the light of the sanction to prosecute the appellant/accused R. Gopalakrishnan, the trial court finding sufficient grounds to prosecute the appellant/accused for the offences under Section 7 and Section 13(1)(d) of Prevention of Corruption Act, took cognizance of the case.
6. On the appearance of the appellant/accused, copies of the documents relied on by the prosecution were served on him in accordance with Section 207 Cr.P.C. and after affording opportunity to the prosecutor and the counsel for the appellant/accused, charges under Section 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed and the appellant/accused pleaded not guilty and he was tried.
7. During the trial, the prosecution had examined 8 witnesses and marked 22 Exhibits and 6 material objects. PW1 is the Sanctioning Authority, PW2 is the de-facto complainant, PW3 is the Accompanying witness, PW4 is the Scientific Assistant, PW5 is the Trap Laying Officer, PW6 is the Junior Telegram Officer, BSNL, PW7 is the Commercial Officer, BSNL and PW8 is the Investigating Officer who conducted further investigation and filed the final report.
8. The gist of the prosecution evidence is as follows:-
a. PW1, Venniah is the DGM attached to BSNL Tirupur Exchange and the competent authority has to take action against Group C employees. He has accorded sanction to prose
