Subbusingh vs State By Public Prosecutor

Subbu Singh ....Appellant

Versus

State by Public Prosecutor ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of Madras High Court setting aside the judgment of acquittal passed by

learned Chief Judicial Magistrate cum Special Judge, Erode, Tamil Nadu.

Appellant faced trial alongwith one Rajappan. The appellant faced trial for alleged commission of offence punishable under Section 7 read with 12,

13(2) read with Section 13(1)(d) read with Section 12 of the Prevention of

Corruption Act, 1988 (in short the `Act'). The trial court directed acquittal

of both the accused persons. The High Court upheld the acquittal so far as

the co-accused is concerned, but set aside the judgment of acquittal and

directed conviction for the appellant for charged offences. The minimum

sentence of six months and fine with default stipulation for the offence

punishable under Section 7 of the Act and one year's rigorous imprisonment

with fine with default stipulation for the offence under Section 13(2) read

with Section 13(1)(d) of the Act were awarded.

2. Prosecution version in a nutshell is as follows:

Subbusingh (Al), the appellant was working as Sub Inspector of

Police at Sathiyamangalam Police Station. Rajappan (A2), is the friend of

Al. There was a land dispute between Renga Naicker (P. W.4) and Thippa

Naicker (P.W.21). Both of them quarreled with each other on 6.7.1991.

Nagarajan (P.W.5), relative of P.W.4 came to the Sathiyamangalam Police

Station and complained to Al Sub Inspector of Police orally against P.W.21.

Al directed the Police constables P.W.11 and P.W.12 to go the spot to bring

P.W.21. Accordingly, they went to the scene of occurrence and found that

2 P.W.21 was lying down with injuries. The Constables took the injured and

others to the Police Station.

In the meantime, Selvan (P.W.2), brother-in-law of P.W.21 followed

them to the Police Station. Since the injured P.W.21 was not taken to the

hospital, P.W.2 requested A1 to send him to hospital. As, permitted by Al,

the injured was taken in an Auto to a private hospital run by Dr. Thangavel

(P.W. 10). After taking injection from the hospital, PW 21 and others came

back to Police Station. P. W.2 was asked to come back in the evening.

Accordingly, P.W.2 went to the Police Station at 5.00 P.M. At that

time, the Police obtained Muchalika from both the sides stating that they

would settle the matter by approaching the Civil Court. Then, Al directed

P.W.21 and others to wait outside the Police Station and act as per the

instructions of one A2 who is the friend of A 1.

Within a few minutes, A2 came and informed P.W.2 that Al had

asked him to get Rs.500/- from them. Natarajan (P.W.22), son of P. W.21

told that he was having only Rs.100/-. A2 after getting instruction from

Al asked them to give Rs.100/-. P.W.22 told A2 that Rs.100/- was

3 required to buy medicine. Then, A2 told them that he would give

Rs.100/- from his pocket and handed over the same on behalf of P.W.21

at nearby bangle shop where P.W.8 was doing business. A2 directed him

to bring Rs.100/- and another Rs.400/- being the balance to be paid to Al.

Then, they were allowed to go.

On 7.7 1991 Al visited the land and gave the message that both PWs.

2 & 4 should meet him in the evening. PW2 met Al at about 5.00 P.M. in

the Police Station. At that time, Al asked him whether he had brought the

amount and PW2 told him that the money was not ready. Al told him that

already the amount of Rs.100/- was received through shop owner and

balance amount of Rs.400/- should be paid, or otherwise he would put up a

case against P.W.21 on the complaint of PW5 PW 2 told him that he would

bring on 12.7.1991. Then PW2 informed this to PW21.

Since PW2 did not want to give bribe he gave a complaint Ex.P2 to

the Inspector of Police, Vigilance (PW26) on 11.7.1991 at about 4.30 PM.

P.W.2 was asked to come to the Vigilance Office next day. In the

meantime, P.W.26 requested the assistance from Manokaran (P.W.3) and

one Jagadeesan, working in the Tamil Nadu Electricity hoard.

4 Next day morning, the pre-trap mahazar was prepared by observing

required formalities. The test was demonstrated by applying phenolphthalein

powder on the currency notes of Rs.400/- handed over by PW.2. Then all of

them went to the Police Station in the early morning of 12.7. 1991 Since Al

was not available, they went to his house which is situated in the police

quarters. Then, PWs. 2 & 3 alone were asked to go inside. P.W.2 gave the

balance amount of Rs.400/- to Al, who in turn received it by his left hand.

Then, he promised that he would take care of the case against P. W.21. Both

P.Ws.2 and 3 came out and gave a signal.

Thereafter, P.W.26 and his men entered into the house. At that time,

A1 was having M 0.1 series currency notes in his left hand. The

phenolphthalein test on both the hands was conducted which proved

positive.

The further investigation was taken up by, Vivekanandan (P.W.27),

another Inspector of Police. After examining the witnesses and obtaining

sanction, he filed a charge sheet against both the accused 1 and 2.

5 During the trial, the prosecution examined P.Ws. l to 27, filed Exs. P1

to P.21 and marked M.Os. 1 to 6.

During the questioning under Section 313 Cr.P.C., Al stated that he

was innocent and the currency notes were planted under his chair without his

knowledge. A2 stated that a false case was foisted against both Al and A2 at

the instance of one Lawrence under whom PW 2 was working.

The trial court after considering the evidence on record acquitted

both the accused in respect of the above charges.

In the appeal before the High Court the stand of the State was that the

trial court acquitted the accused overlooking the material evidence without

appreciation of evidence on record in the proper perspective and the finding

recorded are totally perverse and against the material and evidence. The

accused persons supported the judgment of the trial court. The reasonings

for the acquittal were as follows:

(1) PWs. 7 & 8 the shop owners had turned hostile. In Ex.P.7 The

Credit Account Book, there is no mention that the second accused had been

6 given the amount of Rs.100/- and that the said amount had been given to the

first accused. Since the Muchalika was entered both parties in the police

Station and the same was signed by them on 6.7.1991, there was no

necessity for the first accused to ask the bribe amount through the second

accused.

(2) P.W. 21 alone is the aggrieved person, as the amount was

demanded from him only for the purpose of not putting up a case against

him. So, P. W.2 need not have agreed to pay the bribe amount to Al and he

need not lodge a complaint before the Vigilance without the knowledge of

P.W. 21. P.W. 2 must have been instigated by some unknown person.

(3) Instead of lodging a complaint before Erode Vigilance Office

which has got jurisdiction over the area, P.W. 2 had chosen to lodge a

complaint before Coimbatore Vigilance. There is no explanation for this.

(4) When P.W. 2 entered into the house of Al, he questioned him,

"Who are you?" If really, the occurrence had taken place on 6.7.1991 and

7.7.1991 in which P.W. 2 met Al and A2 on both these occasions, there was

no necessity for Al to put that question. Therefore, the occurrence took place

7 on 6.7.1991 and 7.7.1991 as spoken to by P.W. 2` and P. W. 21 to P. W. 23

cannot be true.

(5) No complaint was produced before the trial court to show that

P.W. 4 to P.W.6 on the one side and P.W. 21 and P.W. 23 on the other side

lodged complaint against each other. Therefore, the evidence of P. W. 2 and

P. Ws. 21 to 23 cannot be believed.

(6) The evidence of P.W. 12, P.W. 13, P.W. 15 and P.W. 16 the

Constables attached to Sathiyamangalam Police Station, over the enquiry in

regard to the complaint by both parties in the Police Station, cannot be

believed, since there is no entry in the General Diary, The evidence of P.W.

14, another Constable also has to be disbelieved, since the Muchalika

obtained from both parties was not produced. Moreover, Exs. P.12 and P13,

the Trip Sheets of the Taxi contained the signature of P. W. 27 Vigilance

Inspector and as such they are fabricated documents.

(7) The phenolphthalein test was not conducted properly. The pre-

trap test was not properly explained to the witnesses P. Ws. 2 and 3. After

the trap, the signature of the first accused had not been obtained on the

8 bottles M.Os. 5 and 6. This shows that the test could not have been

conducted at the house of Al.

(8) Al received the money by his left hand. When P.Ws. 2 and 3

entered into the house, Al kept the money in his left hand only, but the test

conducted on both the right and left hands proved positive. There is no

explanation as to how the test on right hand proved positive.

(9) Out of total amount of Rs.500/-, according to the prosecution,

Rs. 100/- was paid by A2 through P. Ws. 7 and 8 who had turned hostile. P.

W. 2 admitted that he never paid Rs.100/- to A2 to be given to Al. When the

receipt of a portion of the demanded amount of Rs.500/- i.e. 100/- had not

been proved, the trap incident for the receipt of the balance amount of bribe

could not be believed.

(10) Since the evidence available on record through P.Ws. 2, 3 and

26 would not prove that the accused has committed the offence under

Section 7, presumption under Section 20 cannot be drawn.

9 The High Court found that the conclusions are erroneous and on

misreading of the evidence. Accordingly the judgment of the trial court was

set aside.

4. Learned counsel for the appellant submitted that considering the

limited scope for interference with the judgment of acquittal the High Court

ought not to have interfered in the matter as the view taken by the trial court

was a possible view and therefore the High Court should not have interfered.

The following submissions inter alia were made in support of appeal:

1. Foundation for the demand has been disbelieved;

2. Demand by A2 was disbelieved and was part of the prosecution

version regarding demand has been disbelieved so the whole thing

should have been discarded.

5. PW2 should have gone to Erode where there was a Vigilance Officer.

The evidence of PW2 is unreliable and there is no corroboration to his

evidence. It is unnatural that demand would be made from a person who was

injured after settlement of the dispute. The High Court erroneously held that

PW2 called the witnesses which is not correct. PW21 did not make any

complaint though he is supposed to be the affected person. There is no

10 signature as alleged. It is pointed out that PW2 is not directly involved, he is

brother in law of PW 21.

6. Learned counsel for the respondent State on the other hand supported

the judgment.

7. It needs to be pointed out that the recovery was not disputed. The

accused stated that with oblique purpose he was trapped. The money was

kept in the pocket of the accused.

8. The case of prosecution with reference to the enquiry over the

incident on 6.7.1991 is clearly spoken to by P.W. 2, P.W. 21, P.W. 22, son

of PW 21 and P.W. 23 another relative. Though the other party namely

P.Ws. 4 and 5 turned hostile, they would admit that the incident took place

on 6.7.1991 and that they were called to Police Station by Al, who after

enquiry directed them to settle the dispute and warned them That apart,

P.W.13, P.W.14, P.W.15 and P.W.16 the Constables attached to the said

Police Station, would also specifically state that the enquiry was conducted

on the basis of the oral complaint of P.W. 5 against P.W. 21 by Al and

Muchalika, was obtained from them after giving warning on his instruction.

11 Under these circumstances, there is no reason to reject the evidence of

P.W.2, P.W.13 to P.W.16 and P.W.21 to P.W.23.

9. When these acceptable materials are available through these

witnesses, their deposition cannot be rejected merely on the ground that the

complaints given by P. W. 4 and P. W. 21 were not marked and Muchalika

obtained from both parties were not produced. As a matter of fact,

Arumugham (PW 25), the Inspector of Police, Sathiyamangalam under

whom A1 Sub-Inspector of Police was working specifically stated that the

complaints of PW 4 and PW 21 were not registered in the Police Station.

This shows that even without receipt of the written complaint and

registration of the same, a mock enquiry was conducted by A1 and on the

pretext of enquiry, a Muchalika was obtained from both the parties.

10. In such a situation, it cannot be contended that the entire enquiry was

over on 6.7.1991 itself after obtaining Muchalika. The fact that he went to

the field on 7.7,1991 at about 11.00 A.M. and directed P.W. 2 to come and

meet him in the Police Station in the evening itself would show that the

parties were made to think that he had not finished the enquiry. Only on the

said direction, P.W. 2 went and met A1 in the Police Station on 7.7.1991

12 evening. In that context, Al demanded money from P.W. 2 and threatened

that if he failed to bring the balance amount, namely Rs. 400/-, he would

initiate action against P.W. 21 on the complaint given by P.W. 5. Only

thereafter P.W, 2 undertook to pay that amount on Friday at the police

station

11. This is a case where P.W. 21 was attacked by P.Ws. 4 and 5, as a

result of which P.W. 21 sustained injuries and fell down on the field and

became unconscious. Instead of taking action against the persons concerned,

who attacked P.W. 21, Al detained P.W. 21 from the morning till evening.

Though Al was requested by P.W.21 to send him to the Government

Hospital, Al did not choose to send him to the Government Hospital: on the

other hand, he was beaten by Al himself for having requested to send him to

the Government Hospital. This shows that Al did not allow P.W. 2 and P.W.

21 to get the medical records regarding the injuries sustained by P. W. 21.

He was sent only to Private Doctor P.W. 10. Though P.W. 10 turned hostile,

Ex. P.8 marked through him would show, in the light of the evidence of

P.W. 2 and P.W. 21, that P.W. 10 gave prescription to P.W. 21 for the

injuries sustained by him.

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12. So far as the stand that money was kept for the purpose of false

implicating, the same is without substance. The accused was a police officer

who knew the consequences of the bribe. He had not explained as to why he

took up the money in his examination under Section 313 of the Code. The

accused stated that the PW2 took the money because the Inspector asked

him to do so. The normal conduct would have been to take action against

PW2 for offering bribe. Additionally, if matter was closed there was no need

for going to the field. It is to be noted that the appellant was alone in his

room for sometime holding the currency notes before PW 26 and other

officer entered into the house. Therefore, as rightly observed by the High

Court, the possibility of appellant counting the money with the help of right

hand cannot be ruled out. Once it is proved by the prosecution that the

money was demanded as bribe and the same was received from PW2,

Section 20 of the Act comes into play. Once there is a presumption as

contemplated under Section 20, it is for the accused to establish that the

amount was not received as bribe.

13. Since minimum sentence has been imposed there is no scope for

interference with the same.

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14. Above being the position there is no merit in this appeal which is

dismissed. The appellant shall surrender to custody forthwith to serve the

remainder of sentence, if any.

......................................J. (Dr. ARIJIT PASAYAT)

........................................J. (D.K. JAIN)

........................................J (Dr. MUKUNDAKAM SHARMA) New Delhi, May 04, 2009

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