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2018 Supreme(Mad) 4419
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
G. Sithivinayagamoorthy - Appellant
Versus
State through The Inspector of Police, Vigilance & Anti Corruption Unit, Virudhunagar - Respondent
Crl.A(MD)Nos. 142 & 145 of 2010
Decided On : 02-11-2018
For the Appellant :M. Jegadeesh Pandian, M. Karunanithi, D. Selvam, R. Amarnath, Advocates.
For the Respondent:A. Robinson, Government Advocate (Crl.Side).
Headnote:
Code of Criminal Procedure - Section 374 - Acquittal of accused - Challenging the judgment - Trial Court - Agricultural Department to depute a ‘D’ cadre staff to be as witnesses to the trap proceedings - Accordingly reported to him - In presence of these two witnesses he demonstrated significance of sodium carbonate – Phenolphthalein test Smeared the trap money of with phenolphthalein power and entrusted to de facto complainant with instruction that he should take out the money only if accused demands. Further, after accused received the money he was asked to come out and give signal to the trap team by whipping his face with his hand kerchief – Held, prosecution at all stages had failed to prove beyond doubt that A-1 demanded bribe demanded and obtained through his assistant prosecution has to prove that had in his possession consciously tainted money - When prosecution evidence is defective right from proving factum of demand, acceptance and recovery, merely by invoking Section 20 of P.C Act appellants cannot be convicted trial Court has not tested prosecution witnesses properly - Contradictions and lapse in the case of the prosecution endures benefit of doubt in favor of appellants - Hence these appeals are liable to be allowed - Further even according to prosecution hands of was subjected to Phenolphthalein only after was asked to handle tainted money - Therefore, the presence of phenolphthalein in hands of will not give a prima facie impression that he handles the bribe money with knowledge that it is illegal gratification to do an act in favor of de facto complainant - Regarding the incident took place on day of trap had deposed that account books were submitted to A-1 and as per directions of tainted money was given to who received the money and counted it and kept it in his pocket - Neither accounts book nor shirt in which alleged to have kept the tainted money are recovered - Appeal are allowed
JUDGMENT :
(Prayer: Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to allow this appeal by setting aside the conviction and judgment passed by the learned Special Judge Cum Chief Judicial Magistrate, Srivilliputtu, Virudhunagar District in Special C.C.No.5 of 2006 dated 09.04.2010 and may be pleased to acquit the appellant/accused No.2 from all the charges.
Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to call for the records of the case in Special C.C.No.5 of 2006 on the file of Special Court for corruption cases and Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur and examine the legality of the proceedings of the impugned Judgment dated 09.04.2010 passed in Spl.C.C.No.5 of 2006 and set aside the said impugned judgment and direct the Honourable acquittal of the accused.)
1. Challenging the judgment of the trial Court in Spl.C.C.No.5 of 2006, on the file of the learned Special Judge and Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur, the above two appeals have been preferred by the accused persons, who were found guilty by the trial Court.
2. The case of the prosecution is as below:
(i) Dharmaraja, the Manager of Priya Herbals in his written complaint dated 23.08.2005 informed the Additional Superintendent of Police, District Vigilance and Anti Corruption, Virudhunagar that on 18.08.2005 at 10.30 a.m., he went to the Commercial Tax Office at Sivakasi and submitted the accounts of Priya Herbals for the year 2003-2004 to the Commercial Tax Officer No-I, Mr.Selvakumar. He, on verifying the accounts gave the final tax assessment letter. As per the said letter, M/s Priya Herbals was asked to pay 12% tax on the total turnover of Rs 4,43,040/- in addition 12% penalty and 5% surcharge for non submission of returns in time. Totally, as sum of Rs.88,60,080/- was demanded as tax, surcharge and penalty.
(ii) Dharmaraja refuted the assessment and struck to his statement of account. To accept his statement of accounts, Selvakumar demands bribe of Rs 2000/- or else he will impose tax and penalty as found in the notice. He has told him to meet on 23.08.2005 at 11.00 a.m., with bribe money. Only if he gives bribe, he will accept the account submitted and sign.
(iii) The Additional Superintendent of Police who received this complaint, directed Manmathapandian, Inspector of Police to register the case and investigate. Accordingly, Manmathapandian registered the FIR in Crime No.6 of 2005 for offence under section 7 of P.C Act, 1988 against Selvakumar, Commercial Tax Officer-I, Office of the Commercial Tax Office–1, Sivakasi and took up the investigation. He wrote to the Assistant Director, Co-operative Audit and Joint Director, Agricultural Department to depute a ‘D’ cadre staff to be as witnesses to the trap proceedings. Accordingly Rajmohan and Vanniyaraj reported to him. In the presence of these two witnesses, he demonstrated the significance of sodium carbonate – phenolphthalein test. Smeared the trap money of Rs.2000/- (4 x 500) with phenolphthalein power and entrusted to the de facto complainant Dharmaraja with instruction that he should take out the money only if the accused demands. Further, after the accused received the money he was asked to come out and give the signal to the trap team by whipping his face with his hand kerchief.
(iv) The trap team lead by Manmathapandian reached the Commercial Tax Office No.1, Sivakasi at about 12.00 noon. The defacto complainant (Dharmaraja) and the shadow witness (Rajmohan) went inside the office. The trap team took position outside the office.
(v) The defacto complainant (PW-3) and the shadow witness (PW-4) first met the office assistant Sithivinayagamorothy (A-2). He took them to the seat of Selvaraj (A-1). PW-3 told A-1 that he has brought the accounts for the year 2003-04. A-1 asked whether he has brought the money Rs 2000/-. PW-3 answered in affirmative. A-1 told PW-3 to keep the account books on the t
