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2018 Supreme(Mad) 4497
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. VELMURUGAN, J.
The State Rep. by The Deputy Superintendent of Police Vigilance and Anti Corruption Sivagangai - Appellant
Versus
E. Velusamy Formerly Head Constable - Respondent
Crl.A.(MD)No. 37 of 2010
Decided On : 20-12-2018
For the Appellant : K.K. Ramakrishnan, Additional Public Prosecutor.
For the Respondent:S.K. Nagarajan, Advocate.
Headnote:
Prevention of Corruption Act - Sections 7 and 13 - Criminal Procedure Code - Section 378 -trial Court - registered against the accused - rigorous imprisonment - disbelieve the evidence - case of the prosecution is that on 08.01.2005, when the accused was on duty, one Jeya gave a complaint against Kumaraih. For not registering a case, the accused said to have demanded Rs.500/- as bribe. Further the prosecution stated that the said Kumariah has told the accused that he had to accompany his wife for treatment at the hospital in Madurai, but the accused had not heeded to the same, having left with no other option Kumariah told the accused that after returning from hospital he would pay the money and on 13.01.2005 at about 03.00 p.m when the said Kumaraih was travelling near Thirupuvanamkottai, the accused demanded the said sum – Held, respondent is, sentenced to undergo three years rigorous imprisonment and to pay a sum of Rs.5,000/- as fine, in de fault, to undergo one year simple imprisonment for having committed the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo three years rigorous imprisonment and to pay a fine Rs.5,000/- as fine, in default to undergo one year simple imprisonment, for having committed the offence under Section 13(1)(d) r/w 13(2)of the Prevention of Corruption Act, 1988 and both the sentences shall run concurrently - Heard the learned Counsel for the respondent and carefully considered the submission made by the learned Counsel for the respondent and the submission made by the respondent and the same is recorded - Though the respondent pointed out the mitigating circumstances, this Court, taking into account the serious nature of the offence involved in this case, also considering the prevailing situation, which this Country is facing at present and in the interest of larger public, feels this is not a case, where leniency to be shown and is not inclined to show any leniency in this case - As this Court has already set aside the judgment of the Special Judge and convicted the appellant on 04.12.2018, the following sentence is imposed on the respondent - Since the place of occurrence was the public place near the Thirupuvanam Junction road Police beat and the respondent was also in uniform while he was in duty at that time therefore, having felt that the place was not fit for recovering the tainted money and to conduct phenolphthalein test and also for preparing the recovery mahazar, the respondent was taken to the nearby Thirupuvanam Police Station. The respondent has not made any complaint against the Vigilance Police regarding the alleged forceful action done by the Trap Team Therefore, the contention of the learned Counsel for the respondent is not acceptable and the same is rejected - Therefore, from the evidence of PW.2, independent witness and PW.10 the Trap Laying Officer and from entrustment mahazar, recovery mahazar and observation mahazar and forensic laboratory report, it is proved that the respondent demanded and accepted illegal gratification and the same was recovered from the respondent. Therefore, the contentions raised by the learned Counsel for the respondent is not acceptable and therefore, the defence taken by the respondent is rejected - Though PW.3 has not supported the case of the prosecution and treated him as hostile witness and the respondent has stated that PW.3 voluntarily kept the tainted money into the pants pocket of the respondent, PW.3 himself had stated that the respondent was asked to dip his fingers in the sodium carbonate solution and he dipped his fingers and his fingers turned pink – Order accordingly
JUDGMENT :
(Prayer: Criminal Appeal filed under Section 378 of Criminal Procedure Code, to allow the appeal and set aside the judgment of acquittal of the respondent/accused passed by the learned Chief Judicial Magistrate cum Special Judge, Sivagangai in Special C.C.No.01 of 2006 dated 20.11.2009, convict the respondent/accused for the offences framed against him, pass sentence against him in accordance with law.)
1. The respondent was tried before the learned Chief Judicial Magistrate cum Special Judge, Sivagangai on the allegation that the respondent, when was working as the Head Constable received illegal gratification of Rs.300/- from the de facto complainant. The respondent was charged for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The trial Court has found that the prosecution has not proved its case beyond reasonable doubt and therefore extending the benefit of doubt to the respondent, acquitted from the respondent from the charges. Aggrieved against the judgment of the trial Court, the State has preferred the present appeal.
2. The case of the prosecution is that on 08.01.2005, when the accused was on duty, one Jeya gave a complaint against Kumaraih. For not registering a case, the accused said to have demanded Rs.500/- as bribe. Further the prosecution stated that the said Kumariah has told the accused that he had to accompany his wife for treatment at the hospital in Madurai, but the accused had not heeded to the same, having left with no other option Kumariah told the accused that after returning from hospital he would pay the money and on 13.01.2005 at about 03.00 p.m when the said Kumaraih was travelling near Thirupuvanamkottai, the accused demanded the said sum. For which, Kumaraiah told him that he would pay the money in two days and on 17.01.2005, Kumaraiah went for job in LMS sound service at about 10.00a.m, the accused again demanded the said sum of Rs.500/- and threatened him that he would register a case against him. After that the accused told Kumaraiah that he would wait near Thriupuvanamkottai and asked Kumaraiah to pay at least Rs.300/- and again threatened him. Further on 17.01.2005 at about 06.30 p.m near Madurai Mandapam Road, when the accused saw the said Kumariah, he again demanded the said sum and received a sum of Rs.300/- and by this act the accused committed an act of obtaining bribe and hence a case punishable under Sections 7 and 13(1)(d) r/w 13(2) was registered against the accused.
3. After filing charge sheet, the learned Chief Judicial Magistrate cum Special Judge, Sivagangai received the charge sheet and taken on file in Special C.C.No.01 of 2006 and after completing the procedural formalities framed charges against the respondent.
4. In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined as PW.1 to PW.12, 16 documents were marked as Ex.P.1 to Ex.P16 and 5 material objects were exhibited as MO.1 to MO.5.
5. After completion of the prosecution evidence, when the incriminating materials culled out from the prosecution witnesses were put before the respondent/accused, the respondent denied the same as false. On the side of the respondent, neither oral evidence nor documentary evidence was let in, to establish his defence.
6. After hearing the arguments and also considering the materials placed on record, the learned Chief Judicial Magistrate cum Special Judge, Sivagangai found the accused not guilty and acquitted the respondent/accused from the charges, against which the State has preferred the present appeal.
7. This Court as an appellate court has to decide independently and also to re-appreciate the entire materials placed by the prosecution before the trial Court. The learned counsel for the appellant would submit that the case of the prosecution is that for not registering a case against PW.3 the respondent demanded Rs.500/- and when the PW.3 expressed his inability to pay Rs.500/-, he r
