Madras High Court
Mayavadharan (Died) vs State Rep. By on 9 June, 2023
Crl.A.(MD)Nos.87 & 94 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Delivered on :12.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD)Nos.87 and 94 of 2017
CRL.A(MD)No.87 of 2017:
Mayavadharan (died) .. Appellant/Accused No.2
1.Vijaya
2.Krishnaveni
3.Selvaraja .. Appellants 1 to 3/Legal heirs of
the Deceased Appellant
Vs.
State rep. by
The Deputy Superintendent of Police,
Vigilance and Anti-Corruption Wing,
Sivagangai District.
(Crime No.12/2005) .. Respondent/Complainant
(Appellants 1 to 3/Legal heirs of the Deceased Appellants are granted leave
to proceed with the Appeal by Order dated 09.06.2023 in Crl.M.P(MD)No.
7724 of 2023 in Crl.A(MD)No.87 of 2017)
Prayer : This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to set
aside the judgment passed in Special Case No.17 of 2014, dated 09.03.2017
on the file of the Special Court for Prevention of Corruption Act Cases,
Sivagangai.
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CRL.A(MD).No.94 of 2017:
C.Nagarajan .. Appellant/Accused No.1
Vs.
State rep. by the
The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Sivagangai.
In Crime No.12/2005 .. Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to
call for the records from the file of the learned Special Judge, Sivagangai in
Spl.S.C.No.17 of 2014 dated 09.03.2017 and set aside the conviction and
sentence passed against him.
For Appellants : Mr.N.Mohideen Basha
in Crl.A.(MD)No.87 of 2017
: Mr.V.Kathirvelu, Senior Counsel
for Mr.K.Prabhu
in Crl.A.(MD)No.94 of 2017
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
(in both cases)
COMMON JUDGMENT
Since these appeals are arising out of the same crime number, these
appeals are taken up together for hearing and disposed of by way of this
common judgment.
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2. Accused Nos.1 and 2 in the Special Case No.17 of 2014 on the file
of the Special Court for the Prevention of Corruption Act cases, Sivagangai,
filed these appeals challenging the conviction and sentence of imprisonment
imposed against them under Section 7, 13(1)((d) read with 13(2) of the
Prevention of Corruption Act, 1988 and Section 109 IPC.
3. The appellant in Crl.A(MD)No.87 of 2017 was arrayed as accused
No.2 and the appellant in Crl.A(MD)No.94 of 2017 was arrayed as A1 and
they were convicted for the offence under Section 7, 13(1)(d) read with 13(2)
of the Prevention of Corruption Act and Section 109 IPC and sentenced as
follows:
Accused Rank Conviction under Sentence of Imprisonment
Section
A1 7 of the Prevention of 3 years R.I, to pay a fine of
Corruption Act Rs.1000/- in default, to
undergo 6 months S.I
A1 13(1)(d)r/w13(2) of the 3 years R.I, to pay a fine of
Prevention of Corruption Rs.1000/- in default, to
Act undergo 6 months S.I
A2 13(1)(d)r/w13(2) of the 3 years R.I, to pay a fine of
Prevention of Corruption Rs.1000/- in default, to
Act undergo 6 months S.I.Page No.3/56
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4. P.W2 is the husband of Papammal-P.W7. They are residing at
Senkadai village. She had four brothers and four sisters. Except one sister
Rakkammal, all expired before the year 2016. After the demise of her mother,
all the sisters and brothers relinquished their right in respect of the house, by
written document. She has been residing in the said house. Therefore, P.W2
approached the accused officer/A1 to grant separate Patta in her name. When
P.W2 approached A1, he demanded bribe to grant separate Patta. At that
time, the second accused-Village Assistant was in-charge of the said
village. At the time of approaching A1 on 30.09.2005, P.W3 was available in
A1’s office. On noticing the demand made to P.W2, P.W3 advised P.W2 to
meet A1 in person in order to reduce to the demand. Thereafter, the Village
Administrative Officer, namely, A1 reduced the amount from Rs.1500/- to
800/-. After reducing the amount, he handed over the paper to obtain the
signature of P.W7. Therefore, not willing to give the bribe amount, he
approached the respondent police. P.W11, after receiving the complaint from
P.W2, registered a case in Crime No.12 of 2005. After that he called the two
official witnesses, Srinivasan and Kathamuthu-P.W4 and in the presence of
the official witnesses, he demonstrated the significance of the
phenolphthalein test to P.W2. After the demonstration, the currency smeared
with the phenolphthalein powder was put by Head Constable into the left
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packet of P.W2 and instructed him to give it to the Village Administrative
Officer on his demand and also instructed to give signal immediately if the
Village Administrative Officer received the amount. Thereafter, he prepared
the entrustment mahazar-Ex.P4 by noting down the number of the currency.
After that P.W11 and P.W4 along with the trap team reached the nearby place
of the office of the Village Administrative Officer/A1. P.W2 and P.W4
entered into the office of the Village Administrative Officer/A1 and after
seeing them, A1 reiterated the demand of the bribe amount. Immediately,
P.W2 handed over the bribe amount to A1. The same was received by the
Village Administrative Officer/A1 and he handed over the said amount to the
Village Assistant-A2. The Village Assistant-A2 received the amount and
counted and put it in his packet. Immediately, P.W2 gave signal to P.W11. On
receiving the signal P.W11 and his team entered into the office of the Village
Administrative Officer, and after entering into the office, P.W2 identified A1
and disclosed that he handed over the money to A2. Thereafter he asked
P.W2 to leave the office of the Village Administrative Officer. P.W11
conducted the phenolphthalein test in the hands of A1 and the same turned
into pink colour. Thereafter he enquired about the bribe money. The Village
Administrative Officer/A1 admitted the fact and disclosed the fact that the
money was with A2. Immediately, phenolphthalein test was conducted in the
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hands of A2. A2’s hands also turned into pink colour and hence the trap team
asked about the receipt of the money. He disclosed the place, where he kept
the amount, ie., the amount was kept beneath the ‘S’ type chair placed on the
left side of the A2’s chair, which belongs to another Village Administrative
Officer. Thereafter, the investigating officer directed the accused officer to
hand over the money and completed the formalities by recovering the
Document No.Exs.P5, P6, P7, P8 and P9 and obtained the signature of the
accused officer in the Recovery Mahazar apart from the preparation of the
phenolphthalein test. After preparation of the recovery mahazar under
Ex.P10, he prepared the observation mahazar and sketch. Thereafter, he
brought the accused officers to the vigilance office and the accused officers
were arrested and investigation was continued by P.W12. The investigation
officer-P.W12 conducted the investigation by examining the witnesses and
collected the documents and filed the final report before the Special Court
and the same was taken on file in S.C.No.17 of 2014. After that the learned
trial Judge served the copies to the accused/appellants under Section 207
Cr.P.C and framed the necessary charges. After framing the necessary
charges, he questioned the accused/appellants and the accused/appellants
denied the involvement and pleaded not guilty and they stood for trial.
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5. The prosecution, to prove the case, examined P.W1 to P.W12 and
marked Ex.P1 to Ex.P19 and also marked M.O1 to M.O6. On putting the
incriminating materials by way of questioning them under Section 313
Cr.P.C, the accused denied the same as false. On the side of the defence, they
examined D.W1 to D.W4 and marked Ex.D1.
6. The learned trial Judge, considering the submissions of the accused
as well as the prosecution, held that the prosecution clearly proved the case
against both the appellants and convicted and sentenced them as stated supra.
The same was challenged by the appellants by filing these appeals on the
grounds stated in the memorandum of grounds.
7. The learned Senior counsel appearing for the first accused namely
the Village Administrative Officer made the following submissions:
7.1. In the charge framed against the accused, there is no charge for
demand. Without any charge, the evidence was let in. According to the
learned Senior counsel, there was no proper charge for demand to constitute
the offence under Section 7 r/w 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act. But the evidence was adduced to prove the demand. Hence,
the charge and evidence could not be accepted. The learned Senior counsel
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Crl.A.(MD)Nos.87 & 94 of 2017further elaborated that as per Section 216 Cr.P.C, the charge must contain the
date, place and time. In the charge, there is no details of the date and time of
demand. Hence, the charge was not properly framed, which caused serious
prejudice to him and he prays for the acquittal.
7.2. The learned Senior counsel further submitted that according to the
evidence of P.W2 and P.W4, the appellant/A1 is said to have received the
money and handed over to A2. The witnesses have not specifically stated that
A1 received the amount and counted the money. Further, there is no clarity as
to how A1 received the money either by using his hands or through other
persons. The said clarity is important in this case because as per the
phenolphthalein test conducted by P.W11, both hands of A1 turned into pink
colour. Therefore, the said circumstance is material circumstance and without
any clarification on the side of the prosecution, the acceptance on the part of
the appellant/A1 cannot be held to be proved.
7.3. The learned Senior counsel further submitted that the evidence of
P.W2 in the cross-examination goes against the chief examination since P.W2
gave the contradictory evidence in the chief examination. On 13.09.2005, he
never stated about the demand made by the accused/A1 during the course of
the investigation, ie., at the time of recording the statement under Section
161 Cr.P.C. He further stated that they were never asked to come with money
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evidence he deposed in chief-examination. Therefore, his evidence is not
believable and hence without evidence for the demand, the conviction and
sentence imposed against the appellant/A1 and the Village Assistant/A2 is
liable to be set aside.
7.4. The learned Senior counsel further submitted that there are many
contradictions in the evidence of P.W2, P.W4 and P.W11-trap laying officer.
Therefore, this triangular inconsistent evidence leads only to the conclusion
that the prosecution never proved the case in cogent manner. The learned
Senior counsel further submitted that according to the evidence, Thasildar is
the competent authority to give separate patta after making enquiry. In this
case, the Village Administrative Officer is not the competent authority to give
separate patta and hence, the case of the defacto complainant that the
appellant/A1 demanded money is not correct. The said aspect is very much
important in the case on hand, according to the learned Senior counsel,
because no application was pending before the Thasildar office. The said plea
was also supported by the version of P.W7, that he never submitted any
application to the Thasildar. After the trap proceedings, Thasildar alone
granted the patta. Even that patta is not in the name of P.W7 and also it is a
joint patta. Hence, the case of the prosecution that he obtained money to
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issue separate patta in the name of P.W7 is also false. The trap was a
motivated one and the same was initiated at the instance of P.W3 and Village
President Mr.Ramaswamy. P.W2 was used as a pawn. In this aspect, he relied
on the following judgements:
(i) D.Balasubramanian & Another Vs. State reported in CDJ 2011
MHC 5743
(ii) Sundaraj Vs. State in Crl.A.(MD).No.37 of 2007
(iii) V.R.Renga Raju Vs. State in Crl.A.No.409 of 2017
(iv) K.P.Kolanthai Vs. State in Crl.A.No.693 of 2008
(v) A.Deenadayalan Vs. State reported in 2018 1 L.W.(Crl.).699
(vi) S.Palanimuthu and another Vs. State reported in 2017 4 MLJ (Crl)
671
(vii)Arulraj and another Vs. State reported in 2019 3 MLJ (Crl) 436
(viii)N.Vijayakumar Vs. State of Tamilnadu reported in 2021 3 SCC
687
(ix) K.Shanthamma Vs. State of Telangana reported in 2022 4 SCC 574
and seeks indulgence of this Court to acquit the appellant/A1.
7.5. The learned Senior counsel further submitted that Pandi as well as
Ramasamy had motive against the Village Administrative Officer/A1 for the
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reason that they gave complaint against one Pandi for alleged cutting of trees.
The said Ramasamy, who was the President of the Village had a independent
motive against A1. Hence, they used P.W2 to make the complaint against the
Village Administrative Officer and arranged this trap for wreaking vengeance
against the Village Administrative Officer/A1 and the Village Assistant/A2.
7.6. In the above factual circumstances, the learned Senior counsel
pointed out number of infirmities in the prosecution case and seeks for
acquittal. According to the learned Senior counsel, there was no investigation
regarding the place where the tainted money was kept. According to the
evidence, the money was kept beneath the chair which virtually belonged to
the another Village Administrative Officer. In this aspect, the investigating
officer did not conduct any investigation. Without any investigation in this
aspect, the conviction and sentence cannot be sustained. He further submitted
that P.W2 stated in his evidence that three times he visited the Village
Administrative Officer/A1 and he demanded bribe on all those occasions. But
there was no mentioning about the same in the FIR as well as in the charge.
The learned Senior counsel further submitted that according to P.W2, he
requested the patta in the name of his wife, namely, P.W7. But only joint
patta was granted, that too, immediately after the trap. Therefore, the case of
the complainant that in order to issue the separate patta, the amount was
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demanded by the Village Administrative Officer is false. In the said
circumstances, considering the overall assessment of the inconsistency and
embellishment in the evidence of P.W2 and P.W4 and also the different
version in the chief examination as well as in the cross-examination, the
conviction and sentence imposed by the Court below is liable to be set aside.
8. The learned counsel for A2/Village Assistant reiterating the above
submissions stated that even as per the evidence of P.W2 as well as the
complaint, there was no demand. The learned counsel further submitted that
the sanctioning authority has specifically stated that he made a discussion
with the investigating officer-P.W12 and after discussion, he gave the
sanction. Hence, there was no independent application of mind to accord the
sanction. The learned counsel further submitted that even as per the evidence
of P.W2 and P.W4, A2 never demanded money and hence the demand was
never proved against A2. According to the learned counsel for the
appellant/A2, no material was adduced by the prosecution to prove that A2
had the knowledge about the nature of the currency, that is, A2 received the
money with the knowledge that it is a bribe amount. Even as per the evidence
of the witnesses, A2 was not standing close to A1. In the said circumstances,
there was no chance for A2 to receive the money knowing it as a bribe
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amount. The learned counsel further stated that the trap team had taken the
phenolphthalein powder along with the kit material which shows that the trap
team used the same. The learned counsel further submitted that P.W4 in his
cross-examination feigned ignorance to certain questions. The learned
counsel also submitted that P.W4 is bound to disclose the factum of receipt of
amount and the place where the appellant kept the money.
9. The learned counsel for A1 submitted that the A1 on seeing the trap
laying officer held his hands and said ‘Vanakkam’. Therefore, the positive
result in the phenolphthalein test in both hands is probable one. The
Additional Public Prosecutor submitted that P.W2 is aged about 60 years and
he was a layman and his examination was conducted after some years. His
Chief examination was conducted at the age of 60 and the cross examination
was made at the age of 63. The occurrence took place in the year 2005 and
the examination was conducted in the year 2014. Due to the belated
examination, ie., nearly after nine years and considering that he is a rustic
villager, the evidence of the P.W2 as well as P.W7 are to be taken into
consideration. P.W2 in his examination clearly speaks about the material
portion of the evidence, ie., the demand made by the Village Administrative
Officer/A1 and the receipt of the money by the Village Administrative
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Officer/A1 and handing over to the Village Assistant/A2. When these
material particulars were clearly deposed before the Court and in the said
circumstances, some infirmities in the evidence are to be eschewed and
considering the evidence of the witnesses after nine years, it is impossible to
disclose the minute details regarding the trap proceedings. Similarly, the
evidence of P.W7 also is to be considered. His evidence is concerned he did
not make the application to the Thasildar. But his evidence is not that P.W2
obtained the thumb impression from P.W7. Further P.W2 categorically
deposed that the Village Administrative Officer/A1 specifically directed to
bring the money and also handed over the white paper to obtain the signature
of P.W7. As per the evidence of P.W3, the Village Administrative Officer/A1,
after receipt of the bribe amount, received the application and the document.
In the said circumstances, the case of the appellants on the basis of the
statement of the P.W7, that the application was never handed over to A1 is
not correct. Further A1 never denied the above fact and the same was
recovered from the custody of the A1 under Ex.P10-recovery mahazar in the
presence of the official witnesses.
10. The contention of the learned counsel for the appellants that P.W4-
official witness feigning ignorance in respect of many questions as against
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the chief examination clearly showed that the prosecution never proved the
receipt of the amount by the accused. The said submission of the learned
counsel for the appellants is without merit. He also specifically deposed
about the receipt of the money. He is aged about 61 years and he deposed the
evidence after 10 Years. Therefore, the said circumstances to be considered
but he specifically deposed about the material portion of the trap and also
recovery of the documents from the custody of the accused officer. Hence,
the evidence of P.W2 and P.W4 clearly corroborated in respect of the demand
and acceptance of money.
11. The learned Additional Public Prosecutor further submitted that as
per the law laid down by the Hon’ble Supreme Court, immaterial
contradiction and minor discrepancies is not a ground to disbelieve the
evidence unless the same goes to the root of the prosecution case. In this
case, the above said minor inconsistency cannot be taken into account
because of the belated examination of the witnesses. The learned Additional
Public Prosecutor further submitted that the contention of the learned counsel
for the appellants that the charge was not properly framed regarding the
demand, is not correct. In this case, during the questioning of the appellants
under Section 235 Cr.P.C it has been explained about the demand as well as
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the acceptance of Rs.800/-. No prejudice was caused to the appellants in this
aspect. He relied the following judgment of the Hon’ble Supreme Court
reported in AIR1956SC116, 2014(2)SCC(Cri)717 etc. The learned Additional
Public Prosecutor further submitted that the charge framed against A2 is
under Section 7 and 13(1)(d) r/w13(2) of the Prevention of Corruption Act
read with Section 109 IPC. For proving Section 109 IPC, the demand on the
part of the second accused need not be proved.
12. The learned Additional Public Prosecutor further elaborated this
aspect that the presence of A2 along with A1 at the time of the occurrence is
proved, A2 received the amount and the same was proved through the
evidence of PW2 and PW4 and also PW11-trap laying officer and the
evidence of the above witnesses corroborated with the documentary evidence
namely recovery mahazar Ex.P10. In the said circumstances, the act of A2
clearly constituted the offence under Section 109 IPC. Hence, the prosecution
clearly proved the intentional aid by A2. The learned Additional Public
Prosecutor further submitted that as far as Ex.P5 is concerned, the evidence
of P.W3 is very clear that after the trap, the same was produced. Neither the
accused denied the signature of Pappammal-P.W7 nor they disputed the
existence and recovery. In the said circumstances, the argument of the
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learned counsel for the appellants that there is a serious dispute on the Ex.P5
and consequently the prosecution case is not valid cannot be accepted. The
learned Additional Public Prosecutor further submitted that when Ex.P5 was
marked, the same was not objected by the appellants and also they never
disputed the thump impression of P.W7. P.W7 who is a rustic old lady stated
that she never gave petition in writing to the appellants. It can be understood
in the following lines stated by P.W7 in her evidence:
“ehd; vjphpfis gl;lh khWjy; rk;ge;jkhf
ghh;f;ftpy;iy/ ehd; kD vJt[k; vGjpf; bfhLf;ftpy;iy/”
13. The learned Additional Public Prosecutor further submitted that the
discrepancy regarding the place of money kept in the ‘S’ type chair belonging
to another Village Administrative Officer does not have any impact on the
recovery of the amount on the disclosure by A2. From the evidence of the
prosecution witnesses and Ex.P10, it is clear that the money was recovered
on the disclosure by A2. The said conduct is admissible under Section 27 of
the Indian Evidence Act. In the said circumstances, it is not necessary to
conduct investigation regarding the place of money. He further submitted that
the conduct of A2 in not keeping the money and placing the same at the
nearby chair itself shows his criminal intention that he knows that the money
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is bribe amount. Hence the offence under Section 109 IPC is clearly made out
against A2. He further submitted that the contradiction as alleged by the
learned counsel for the appellants is quite natural in these type of cases where
the examination of the witnesses had been done after number of years and
more particularly, if no such contradictions are there, the evidence assumes
the character of the parrot like version. He further submitted that the
evidence of two witnesses may have some embellishments, some
improvements and contradictions in their version. For the said purpose, he
relied the following judgement of the Hon’ble Supreme Court.
(i) Jai Prakash v. State of U.P., reported in (2020) 17 SCC 632
(ii)Rakesh v. State of U.P., reported in (2021) 7 SCC 188
(iii)Mritunjoy Biswas v. Pranab, reported in (2013) 12 SCC 796
14. The learned Additional Public Prosecutor further submitted that
the prosecution clearly proved the charge under Section 7 and 13(1)(d) read
with 13(2) of the Prevention of Corruption Act against A1. The charge
against A2 under Section 109 IPC is clearly proved through the evidence as
well as the circumstances. Hence, the conviction and sentence passed by the
Court below is to be sustained.
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15. In reply to the argument, the learned Senior counsel submitted that
the evidence of P.W3 that the documents were handed over to the Village
Administrative Officer/A1 after the receipt of money has to be spoken by
P.W2 and hence, the evidence cannot be treated as proved for the
genuineness of Ex.P5. The learned counsel for A2 submitted that even
Section 109 Cr.P.C is concerned, no evidence is available to prove that A2
intentionally aided A1 in receiving the money. Further, there was no evidence
to show that the amount was given as bribe. The learned Additional Public
Prosecutor submitted that the motive alleged by A1 and A2 is not relevant to
this case when the evidence of P.W4-independent witness disclosed the
demand and recovery of amount.
16. This Court has considered the rival submissions made by both side
counsel and perused the records and also the precedents relied upon by them.
17.Whether the prosecution proved the case categorically beyond
reasonable doubt to sustain the conviction and sentence of imprisonment?
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18.Discussion on demand and acceptance of bribe amount:
It is admitted case that P.W.7 is the owner of the property situated in
the Survey No.250/15. The same was in the name of her mother and brothers.
According to P.W7, all the brothers and sisters relinquished their right in the
said property and she is the absolute owner. In order to get the loan, she
wanted to get a separate patta in her name. Therefore, P.W2-husband of P.W7
approached the accused officer-A1 and A1-accused officer demanded the
bribe amount of Rs.1500/- on 13.09.2005. At the time, P.W3 was present
before the Village Administrative Officer/A1 and he met the Thasildar with
the accused officer-A1. P.W2 stated about his inability to pay the amount on
account of his poverty. Knowing about the economic status of P.W2,. P.W3
asked the accused officer-A1 to reduce the amount. Hence, A1 reduced the
amount to Rs.800/-. A1 further directed P.W2 to get the signature of his
wife/P.W7 in a blank paper. P.W2 was not willing to give the bribe amount
and hence he preferred the complaint before P.W11. After registration of the
case, P.W11 organized the trap in the presence of P.W4. Accordingly, P.W2
and P.W4 went to the office of the Village Administrative Officer/A1 and the
accused officer/A1 demanded the bribe money and accepted the same and
handed it over to A2-Village Assistant. Thereafter, P.W2 gave signal to
P.W11 and P.W11 entered into the office and conducted the phenolphthalein
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P.W11 enquired about the money. A1 disclosed the fact that he handed the
money to A2. Therefore, the test was conducted in the hands of A2 also and
the same turned into pink and A2 disclosed the place, where he kept the
money, ie., in the nearby chair. After recovery of the amount, P.W11
concluded the trap proceedings upon the receipt of various exhibits including
Ex.P5 and prepared the recovery mahazar in the presence of the official
witnesses, namely P.W4 and another person.
18.1. From the narration of the events, it is clear that A1 demanded the
amount and received the bribe amount. P.W2 and P.W4 clearly deposed
before the Court in this aspect. Due to the lapse of years from the date of
occurrence, it is quite natural that there were minor contradictions as well as
some infirmities, which are not material to disbelieve the evidence of P.W2.
For the said minor contradictions and relevant infirmities, the evidence of
P.W2 and P.W4 can not be rejected. The evidence of P.W2 and P.W4 is clear
in the aspect of the demand and acceptance of the amount and the
prosecution clearly proved the case of the acceptance and hence the
presumption under Section 27 of the Indian Evidence Act and Section 20 of
Prevention of corruption Act would come into play. As held by the Hon’ble
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Crl.A.(MD)Nos.87 & 94 of 2017
Constitution Bench reported in 2023 4 SCC 731 in the case of Neeraj Dutta
Vs. State (Government of NCT of Delhi). If the prosecution proved the
demand and acceptance through the oral and documentary evidence, the
presumption comes into operation. In this case, the prosecution proved the
said aspect of demand and acceptance through the evidence of P.W2 and
P.W3 and the documents Ex.P10, Ex.P11, Ex.P5 and other documents
recovered from the Village Administrative Officer-A1. Therefore, the demand
and acceptance was clearly proved against the Village Administrative
Officer-A1 in this case. A2 received the amount from A1, and he, without
keeping the amount threw the same beneath the nearby chair and he was also
present in the scene of occurrence. Hence, the receipt of the amount by him
was clearly proved through the phenolphthalein test. According to the
provisions of Vigilance Manual, if the colour turned into pink, the legal
presumption is that the tainted money was handled by the accused persons. It
is not the case of A2 that he did not know the character of the amount. As per
the provisions contained in Section 109 IPC, the intentional aid to receive the
bribe amount is clearly established against A2. He disclosed the place of
bribe money and the said money was recovered. As rightly pointed out by the
learned Additional Public Prosecutor that if he received the amount other
than the bribe amount, there is no necessity to throw the amount beneath the
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nearby chair. Hence, it is clearly proved from the facts and circumstances and
also from the subsequent conduct of A2 that A2 had knowledge about the
bribe amount and he intentionally aided the Village Administrative
Officer/A1 to receive the bribe amount. Hence, the charges against A2 is also
clearly proved.
19.Discussion on mis-joinder of charges:
The learned counsel for the appellant submitted that no proper charge
is framed as addressed by the Hon’ble Supreme Court in similar
circumstances in number of cases right from the Hon’ble Constitution Bench
Judgement reported in AIR 1956 SC 116. According to the Hon’ble
Constitution Bench judgment, if the accused knows the nature of the case
through the cross examination and the entire proceedings of the case, there is
no prejudice caused to the accused. In this case, during the questioning under
Section 235 Cr.P.C, it was clearly stated about the nature of the case,
acceptance and the nature of the case projected against the appellants. But
they denied that the case as false. Further, during cross-examination of the
witnesses, they have specifically stated that the accused knew the case
projected against them, ie., the demand of the bribe amount and receipt of the
bribe amount and the concealment of the bribe amount. In the said
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Crl.A.(MD)Nos.87 & 94 of 2017circumstances, in the considered view of this Court, no prejudice was caused
to them. In this aspect, it is relevant to note the above judgement of the
Hon’ble Supreme Court and applying the said principle, this Court considered
the circumstances, namely, the accused addressed the questions in cross
examination regarding the demand, the acceptance and possession of the
document from their custody and denied everything and more particularly, in
the 313 Cr.P.C proceedings, they specifically filed the written statement
which discloses that they understood the entire case ie., they stated that they
never received the money and the money was thrown beneath the nearby
chair without handling of the same. Further, under Section 464 of Cr.P.C., the
conviction cannot be set aside on the ground of improper framing of charges.
The Section 464 of Cr.P.C., is as follows:
“464. Effect of omission to frame, or absence of, or
error in, charge.—(1) No finding, sentence or order
by a court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge
was framed or on the ground of any error, omission
or irregularity in the charge including any
misjoinder of charges, unless in the opinion of the
court of appeal, confirmation or revision, a failure
of justice has in fact been occasioned thereby.
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Crl.A.(MD)Nos.87 & 94 of 2017(2) If the court of appeal, confirmation or revision
is of opinion that a failure of justice has in fact been
occasioned, it may—
(a) In the case of an omission to frame a charge,
order that a charge be framed and that the trial be
recommended from the point immediately after the
framing of the charge;
(b) In the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
(c) Provided that if the court is of opinion that the
facts of the case are such that no valid charge could
be preferred against the accused in respect of the
facts proved, it shall quash the conviction.”19.1.The said provision is considered by the Hon’ble Constitution
Bench of the Supreme Court reported in Willie (William) Slaney v. State of
M.P., reported in AIR 1956 SC 116
5. Before we proceed to set out our answer and
examine the provisions of the Code, we will pause to
observe that the Code is a code of procedure and, like
all procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of
endless technicalities. The object of the Code is toPage No.25/56
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Crl.A.(MD)Nos.87 & 94 of 2017ensure that an accused person gets a full and fair trial
along certain well-established and well-understood
lines that accord with our notions of natural justice. If
he does, if he is tried by a competent court, if he is told
and clearly understands the nature of the offence for
which he is being tried, if the case against him is fully
and fairly explained to him and he is afforded a full
and fair opportunity of defending himself, then,
provided there is substantial compliance with the
outward forms of the law, mere mistakes in procedure,
mere inconsequential errors and omissions in the trial
are regarded as venal by the Code and the trial is not
vitiated unless the accused can show substantial
prejudice. That, broadly speaking, is the basic
principle on which the Code is based.
6. Now here, as in all procedural laws, certain
things are regarded as vital. Disregard of a provision
of that nature is fatal to the trial and at once
invalidates the conviction. Others are not vital and
whatever the irregularity they can be cured; and in
that event the conviction must stand unless the Court is
satisfied that there was prejudice. Some of these
matters are dealt with by the Code and wherever that is
the case full effect must be given to its provisions. The
question here is, does the Code deal with the absence
of a charge and irregularities in it, and if so, intoPage No.26/56
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Crl.A.(MD)Nos.87 & 94 of 2017which of the two categories does it place them? But
before looking into the Code, we deem it desirable to
refer to certain decisions of the Privy Council because
much of the judicial thinking in this country has been
moulded by their observations. In our opinion, the
general effect of those decisions can be summarised as
follows.
If he does, if he is tried by a competent court, if
he is told and clearly understands the nature of the
offence for which he is being tried, if the case against
him is fully and fairly explained to him and he is
afforded a full and fair opportunity of defending
himself, then, provided there is substantial compliance
with the outward forms of the law, mere mistakes in
procedure, mere inconsequential errors and omissions
in the trial are regarded as venal by the Code and the
trial is not vitiated unless the accused can show
substantial prejudice. That, broadly speaking, is the
basic principle on which the Code is based.”
After considering the various decisions, the Court
further observed:
“The swing of the pendulum has been away from
technicality, and a greater endeavour has been made to
regard the substance rather than the shadow and to
administer justice fairly and impartially as it should be
administered; fair to the accused, fair to the State andPage No.27/56
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Crl.A.(MD)Nos.87 & 94 of 2017fair to the vast mass of the people for whose protection
penal laws are made and administered.”
The Code is a code of procedure and, like all
procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of
endless technicalities. The object of the Code is to
ensure that an accused person gets a full and fair trial
along certain well-established and well-understood
lines that accord with our notions of natural justice.In Kammari Brahmaiah v. Public Prosecutor, High
Court of A.P. Reported in, (1999) 2 SCC 522 at page
526
13. .. non-framing of a charge would not vitiate
the conviction if no prejudice is caused thereby to the
accused. As observed in the aforesaid case, the trial
should be fair to the accused, fair to the State and fair
to the vast mass of the people for whose protection
penal laws are made and administered. The Criminal
Procedure Code is a procedural law and is designed to
further the ends of justice and not to frustrate them by
the introduction of endless technicalities.
In this case, as discussed above, the appellant has not established prejudice
caused to him due to the misjoinder of charge. This Court also does not find
any failure of justice. The appellant, right from beginning of the framing of
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charge fully understood the case and subjected the witnesses to undergo the
detailed cross examination. Hence the said defence is not sustainable in the
circumstances of the present case.
20.Discussion on non-explanation of colour change of the
appellant’s hand:
In this case, the phenolphthalein test conducted by P.W11 is material
one. The non-explanation of the accused as to why the colour changed in his
hands clearly shows that he has handled the money as per Vigilance Manual
Rule 46 (1) which reads as follows:
“46. Phenolphthalein Test
(1) Before recovering the tainted money or other
articles in the course of trap proceedings, what is known as
“Phenolphthalein Test” should invariably be conducted the
fingers of both hands of the Accused Officer and on other
items such as his pant/shirt pocket, dhoti, etc., with which the
notes/articles are known to have come into contact. It will be
a corroborative piece of evidence to establish the acceptance
of tainted money by the Accused Officer.”If the hands turned into pink, it is presumed that the accused handled the
tainted money. Therefore, the case of the appellants that they never received
the money is false. Similarly, after receipt of money A2’s hands also turned
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Crl.A.(MD)Nos.87 & 94 of 2017into pink. Hence, similar presumption also is available against A2 since the
amount was recovered at the instance of A2. In such circumstances, the case
of the appellants that the amount was never received by them and the same
was done at the instance of P.W3 and one Ramasamy is false. In this aspect,
the learned trial Judge considered the evidence of the defence in proper
perspective and disbelieved the evidence of the defence witnesses and hence
there is no reason to vary from the decision of the trial Court.
21.Discussion on motive:
Further, as per the paragraph No.6 of the judgment of the Hon’ble
Supreme Court in State of U.P. v. Zakaullah, reported in (1998) 1 SCC 557
at page 560, “motive against one of the witnesses is not a reason to
disbelieve the prosecution evidence when the prosecution evidence is clear,
cogent and trustworthy”.
6. The complainant’s evidence was jettisoned on the
mere ground that since he had a grouse against the
delinquent public servant he might falsely have
implicated the latter. Such a premise is fraught with the
consequence that no bribe-giver can get away from such
a stigma in any graft case. No doubt PW 5 would have
been aggrieved by the conduct of the respondent. The
very fact that he lodged a complaint with the Anti-Page No.30/56
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Corruption Bureau is reflective of his grievance. Such a
handicap in his evidence may require the Court to
scrutinise it with greater care, but it does not call for
outright rejection of his evidence at the threshold. A
pedantic approach rejecting the evidence of a
complainant simply on the premise that he was aggrieved
against the bribe-taker, would only help corrupt officials
getting insulated from legal consequences.
21.1. In this case, there is no reason to disbelieve the evidence of
P.W2, P.W3, P.W4 and P.W11. P.W4 independent official witness has no
motive against the appellant and hence his evidence has to be believed. There
are no material circumstances elicited during the course of the cross
examination to disbelieve his evidence. In the circumstances, as per the law
laid down by the Hon’ble Supreme Court, if motive alleged is even true, the
same cannot be used to disbelieve the evidence of P.W2, P.W3, P.W4 and
P.W11 and Ex.P10, more particularly, the recovery of the material documents
from the custody of the A1-accused officer.
21.2. According to the statement of A2, the trap laying officer and
other persons assaulted A2 and threatened him to pick up the money. His
version is extracted as follows:
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Crl.A.(MD)Nos.87 & 94 of 2017“nfs;tp: ,e;j tHf;F gw;wp eP’;fs; ntW VnjDk; Tw
tpUk;g[fpwPh;fsh>
gjpy;: ehd; mYtyfj;jpw;F btspna jhd; epd;W
bfhz;L ,Ue;njd;/ mYtyfj;jpw;Fs; mjpfhhpfs; EiHe;J
vd;id moj;J m’;F fple;j gzj;ij vL vd;W brhy;yp
vLf;fr; brhd;dhh;fs;/ ntW vJt[k; vdf;F bjhpahJ/”21.3. From the version of A2, it is seen that he has claimed that he was
standing outside the office. Thereafter, the officers assaulted him and asked
him to pick the money. Even in his version, he did not make it clear, that is,
how he was brought inside the office and directed to take the money. In this
case, there was no such act. Further, it is not the case of A2 that he made a
complaint against the Vigilance Officer to take action against the said officer
for assaulting him and fabricated false evidence. In the said circumstances,
this Court does not accept the belated version of Section 313 Cr.P.C
proceedings.
22.Discussion on the genuineness of Ex.P5:
The learned Senior counsel further submitted that if the case of P.W7
that he never made the application to the Deputy Thasildar is taken into
consideration there is doubt about the genuineness of the Ex.P5. The learned
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Crl.A.(MD)Nos.87 & 94 of 2017Senior counsel’s argument cannot be accepted with regard to the evidence of
P.W5.
22.1. From the joint reading of the evidence of P.W5 and P.W7, if it is
taken that she never went to the Village Administrative Officer/A1’s office
and never met the Village Administrative Officer/A1 and gave the
application, then it is not the case of P.W7 that she never asked her husband
to approach the Village Administrative Officer/A1 to obtain patta. It is not
the cross-examination of the witnesses that the signature found in the Ex.P5
does not belong to P.W7. The case of P.W3 is that after the receipt of amount,
P.W2, handed over the document to the accused officer/A1 to obtain separate
patta. Without any denial of the signature in Ex.P5, this Court does not find
any merit in the submission of the learned Senior counsel.
23.Discussion on the place of recovery:
The learned counsel for the appellants submitted that the discrepancy
regarding the place where the money was kept ie., in the ‘S’ type bend chair is
concerned, the same was not material when the evidence of P.W4 and P.W11
and Ex.P10 is clear in this aspect. P.W4 and P.W11 have no motive against
the Village Administrative Officer/A1 to prepare false documents and no
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P.W4 and P.W11.
23.1. The learned Senior counsel’s argument that the investigation
regarding the place of the amount, that is, the nearby chair belonging to
another Village Administrative Officer should have been investigated by the
investigating officer cannot be accepted as rightly pointed out by the learned
Additional Public Prosecutor that the amount was discovered in consequence
of the statement of A2 and the handing over of money was proved through
the evidence of P.W2 and P.W4 and the proper recovery mahazar was
prepared under Ex.P10 without any suspicion. The Trap laying officer was
led to the place where the amount was kept ie., beneath the chair of the
another Village Administrative Officer. Further, it is the conduct of A2 to
screen the amount he placed it in the nearby chair of the another Village
Administrative Officer. It might be taken that in order to save A1, he placed
the amount in another chair, where admittedly, the said Village
Administrative Officer was not present. In the said circumstances, the
disclosure by A2 amounts to incriminating conduct and the same is
admissible under Section 8 of the Indian Evidence Act, as held by the
Hon’ble Supreme Court in the case of Prakash Chand v. State (Delhi Admn.)
reported in 1979 (3) SCC 90 in the following paragraph:
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8. It was contended by the learned Counsel for the
appellant that the evidence relating to the conduct of the
accused when challenged by the Inspector was
inadmissible as it was hit by Section 162, Criminal
Procedure Code. He relied on a decision of the Andhra
Pradesh High Court in D.V. Narasimham v. State [AIR
1969 AP 271 : 1969 Cri LJ 1016 : 1969 MLJ (Cri) 687] .
We do not agree with the submission of Shri Anthony.
There is a clear distinction between the conduct of a
person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant fact
and the statement made to a Police Officer in the course
of an investigation which is hit by Section 162 of the
Criminal Procedure Code. What is excluded by Section
162, Criminal Procedure Code is the statement made to a
Police Officer in the course of investigation and not the
evidence, relating to the conduct of an accused person
(not amounting to a statement) when confronted or
questioned by a Police Officer during the course of an
investigation. For example, the evidence of the
circumstance, simpliciter, that an accused person led a
Police Officer and pointed out the place where stolen
articles or weapons which might have been used in the
commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence
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Act, irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 of the Evidence Act
(vide Himachal Pradesh Administration v. Om
Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88 : AIR
1972 SC 975] ).
The same was reiterated by this Court in 2001(1)LW(Cri)77 in the following
paragraph:
There is a clear distinction between the conduct
of a person against whom an offence is alleged, which
is admissible under Section 8 of the Evidence Act and
the statement made to a Police Officer in the course of
an investigation which is hit by Section 162, Cr.P.C.
What is excluded by Section 162 of Cr.P.C., is the
statement to a Police Officer in the Course of
investigation and not the evidence relating to the
conduct of an accused person when confronted or
questioned by a police officer during the course of an
investigation.
23.2. When P.W.2, P.W.4 cogently deposed the material portion of the
prosecution case regarding the demand and acceptance, their evasive answer
such as “njhpahJ” “epahgfk; ,y;iy” to some irrelevant questions is
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Crl.A.(MD)Nos.87 & 94 of 2017not a ground to discord the testimony of the said witnesses. This Court also
accepts the argument of the learned Additional Public Prosecutor that
examination was conducted after 9 years from the date of occurrence and
hence it is quite natural to depose such as “njhpahJ” “epahgfk; ,y;iy”.
The said aspect does not seriously affect the case.
24.Discussion on sanction:
The learned counsel for A2 submitted that sanction was accorded after
discussion with the investigation officer. The learned counsel’s submission is
not correct. The sanctioning authority clearly deposed before the Court both
in chief and cross-examination that he applied his mind and granted sanction.
He only had discussion with the investigation officer, but he did not grant the
sanction by substituting the jurisdiction of the investigating officer. It is
stated in the following lines:
vd;dplk; bfhz;Ltug;gl;l Mtz';fis ghprPyid
bra;J mDkjp tH';Ftjw;F KG jpUg;jpapUe;jjhy; vd;dhy;
Miz tH';fg;gl;lJ/
khjphp tiuglk;. tprhuiz thf;FK:y';fs;. urhad
mwpf;if. kf$h; nghd;w Mtz';fis ghprPyid bra;J ehd;
mDkjp cj;jut[ tH';fpndd;/
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24.1. Further, the word “MNyhrid” with the Deputy Superintendent
of Police cannot be treated as if he granted the sanction on the direction of
the investigating officer. He clearly stated that after the said word
“MNyhrid” he independently applied his mind to the document furnished
by the investigating officer and granted sanction. It is quite natural that after
the submission of the file, the sanctioning authority would ask the
investigating officer to produce the file. In this case also he directed to
produce the file and regarding the documents, and he made discussion. The
discussion is different from the application of mind before granting sanction.
It does not imply that he granted sanction on the direction of the
investigation officer. This Court finds no evidence to prove the same. In this
aspect, it is relevant to extract the following portion of the judgment of the
Hon’ble Supreme Court in the case of C.S. Krishnamurthy v. State of
Karnataka, (2005) 4 SCC 81at page 87
9. Therefore, the ratio is sanction order should speak
for itself and in case the facts do not so appear, it should
be proved by leading evidence that all the particulars
were placed before the sanctioning authority for due
application of mind. In case the sanction speaks for itself
then the satisfaction of the sanctioning authority is
apparent by reading the order. In the present case, the
sanction order speaks for itself that the incumbent has to
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account for the assets disproportionate to his known
source of income. That is contained in the sanction order
itself. More so, as pointed out, the sanctioning authority
has come in the witness box as Witness 40 and has
deposed about his application of mind and after going
through the report of the Superintendent of Police, CBI
and after discussing the matter with his Legal
Department, he accorded sanction. It is not a case that
the sanction is lacking in the present case. The view
taken by the Additional Sessions Judge is not correct and
the view taken by learned Single Judge of the High Court
is justified.
24.2.The learned Senior Counsel submitted that the sanctioning
authority granted sanction without application of mind and hence taking the
cognizance on the basis of the invalid sanction is not legally valid. It is well
settled law that the sanctioning authority appeared before the Court and
deposed that he applied his mind to give sanction to prosecute the public
servant. Any discrepancy if brought during the course of the examination of
the witnesses then it can be seen whether it should be considered to set aside
the conviction.
State (Anti-Corruption Branch) v. R.C. Anand (Dr.),
(2004) 4 SCC 615 at page 621
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12…. In Kalpnath Rai v. State [(1997) 8 SCC 732 :
1998 SCC (Cri) 134] it was clearly observed by this
Court that the sanctioning authority is not required to
wait for the report of the experts. The sanctioning
authority has only to see whether the facts disclosed in
the complaint prima facie disclose commission of an
offence or not.
13. The validity of the sanction would, therefore,
depend upon the material placed before the sanctioning
authority and the fact that all the relevant facts, material
and evidence including the transcript of the tape record
have been considered by the sanctioning authority.
Consideration implies application of mind. The order of
sanction must ex facie disclose that the sanctioning
authority had considered the evidence and other material
placed before it. This fact can also be established by
extrinsic evidence by placing the relevant files before the
Court to show that all relevant facts were considered by
the sanctioning authority.
C.S. Krishnamurthy v. State of Karnataka, (2005) 4
SCC 81 at page 85
7. … It is no doubt true that sanction is necessary
for every prosecution of public servant, this safeguard is
against the frivolous prosecution against public servant
(sic) from harassment. But, the sanction should not be
taken as a shield to protect corrupt and dishonest public
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servant. When the sanction itself is very expressive, then
in that case, the argument that particular material was
not properly placed before the sanctioning authority for
according sanction and the sanctioning authority has not
applied its mind becomes unsustainable.—- When
sanction order itself is eloquent enough, then in that case
only formal evidence has to be produced by the
sanctioning authority or by any other evidence that the
sanction was accorded by a competent person with due
application of mind.
9. Therefore, the ratio is sanction order should
speak for itself and in case the facts do not so appear, it
should be proved by leading evidence that all the
particulars were placed before the sanctioning authority
for due application of mind. In case the sanction speaks
for itself then the satisfaction of the sanctioning authority
is apparent by reading the order.
Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119 : at
page 128
18. The learned trial Judge, as it seems, apart from
other reasons has found that the sanctioning authority
has not referred to the elementary facts and there is no
objective material to justify a subjective satisfaction. The
reasonings, in our considered opinion, are absolutely
hypertechnical and, in fact, can always be used by an
accused as a magic trick to pave the escape route. The
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reasons ascribed by the learned trial Judge appear as if
he is sitting in appeal over the order of sanction. True it
is, grant of sanction is a sacrosanct and sacred act and is
intended to provide a safeguard to the public servant
against vexatious litigation but simultaneously when
there is an order of sanction by the competent authority
indicating application of mind, the same should not be
lightly dealt with. The flimsy technicalities cannot be
allowed to become tools in the hands of an accused.
According to the above judgments of the Hon’ble Supreme Court if the
sanctioning authority deposed before the Court that he granted sanction after
applying his mind, the same is sufficient compliance of the Section 19 of the
Prevention of Corruption Act and hence this Court does not accept the
contention of the learned counsel for the appellant.
24.3.In this case the sanctioning authority perused the records placed
before him and he need not analyse every material to arrive at the satisfaction
and accord the sanction. P.W.1 sanctioning authority also deposed before the
Court, that he granted sanction after applying his mind. Some discrepancies
always happen in this type of the case either during the course of the chief
examination or cross examination. But the Court is duty bound to read the
entire evidence and if the sanctioning authority granted sanction with the
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application of mind, the Court has no jurisdiction to set aside the conviction
on the ground of non-application of mind in according sanction.
25.Further, the Section 19 of the Prevention of Corruption Act 1988
and Section 465 of Cr.P.C., specifically states that the conviction cannot be
set aside on the ground that there was an error in granting sanction unless
accused established failure of justice. For better appreciation, the relevant
portion of the Sections are extracted as follows:
Section 19 of the Prevention of Under Section 465 of Cr.P.C.
Corruption act 1988
19.3…(3) Notwithstanding anything contained in 465. Finding or sentence when reversible
the Code of Criminal Procedure, 1973 (2 of 1974), by reason of error, omission or irregularity.—
— (1) Subject to the provisions hereinbefore
contained, no finding, sentence or order passed
(a) no finding, sentence or order passed by a
by a court of competent jurisdiction shall be
Special Judge shall be reversed or altered by a
reversed or altered by a court of appeal,
court in appeal, confirmation or revision on the
confirmation or revision on account of any
ground of the absence of, or any error, omission or
error, omission or irregularity in the complaint,
irregularity in, the sanction required under sub-
summons, warrant, proclamation, order,
section (1), unless in the opinion of that court, a
judgment or other proceedings before or
failure of justice has in fact been occasioned
during trial or in any inquiry or other
thereby;
proceedings under this Code, or any error, or
irregularity in any sanction for the prosecution,
unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby.
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Crl.A.(MD)Nos.87 & 94 of 2017
25.1.The Hon’ble Supreme Court has held as follows:
In State v. T. Venkatesh Murthy, (2004) 7 SCC 763 at page 765
14. In the instant case neither the trial court nor the
High Court appear to have kept in view the
requirements of sub-section (3) relating to question
regarding “failure of justice”. Merely because there is
any omission, error or irregularity in the matter of
according sanction, that does not affect the validity of
the proceeding unless the court records the satisfaction
that such error, omission or irregularity has resulted in
failure of justice.
25.2.Sushil Ansal v. State, reported in (2014) 2 SCC (Cri) 717 at
page 287
160. Mr Jethmalani next argued that the charges
framed against the appellant-accused, Sushil and
Gopal Ansal were defective inasmuch as the same did
not specify the days or period when the offence took
place nor even indicate the statutory provisions, rules
and regulations allegedly violated by the appellants or
accuse the appellants of gross negligence which alone
could constitute an offence under Section 304-A IPC.
These defects, contended the learned counsel, had
caused prejudice to the appellants in their defence and
ought to vitiate the trial and result in their acquittal. A
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similar contention, it appears, was urged by the
appellants even before the High Court who has
referred to the charges framed against the appellants
at some length and discussed the law on the point by
reference to Sections 211, 215 and Section 464 CrPC
to hold that the charges were reasonably clear and
that no prejudice in any case had been caused to the
appellants to warrant interference with the trial or the
conviction of the appellants on that ground. Reliance
in support was placed by the High Court upon the
decision of this Court in Willie (William)
Slaney v. State of M.P. [AIR 1956 SC 116 : 1956 Cri
LJ 291] and several later decisions that have
reiterated the legal position on the subject. There is in
our opinion no error in the view taken by the High
Court in this regard. Section 464 CrPC completely
answers the contention urged on behalf of the
appellants. It in no uncertain terms provides that an
error, omission or irregularity in the charge including
any misjoinder of charges shall not invalidate any
sentence or order passed by a court of competent
jurisdiction unless in the opinion of a court of appeal,
confirmation or revision a failure of justice has in fact
been occasioned thereby. The language employed in
Section 464 is so plain that the same does not require
any elaboration as to the approach to be adopted by
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the Court. Even so the pronouncements of this Court
not only in Slaney case [AIR 1956 SC 116 : 1956 Cri
LJ 291] but in a long line of subsequent decisions
place the matter beyond the pale of any further
deliberation on the subject. See K.C. Mathew v. State
of Travancore-Cochin [AIR 1956 SC 241 : 1956 Cri
LJ 444] , Gurbachan Singh v. State of Punjab [AIR
1957 SC 623 : 1957 Cri LJ 1009] , Birichh
Bhuian v. State of Bihar [AIR 1963 SC 1120 : (1963) 2
Cri LJ 190] , State of Maharashtra v. Ramdas
Shrinivas Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri)
478] , Lallan Rai v. State of Bihar [(2003) 1 SCC
268 : 2003 SCC (Cri) 301] and State (NCT of
Delhi) v. Navjot Sandhu [(2005) 11 SCC 600 : 2005
SCC (Cri) 1715] .
161. In Slaney case [AIR 1956 SC 116 : 1956 Cri LJ
291] Vivian Bose, J. speaking for the Court observed :
(AIR p. 121, paras 5-6)
“5. What it narrows down to is this:
Is the charge to be regarded as a ritualistic formula so
sacred and fundamental that a total absence of one, or
any departure in it from the strict and technical
requirements of the Code, is so vital as to cut at the
root of the trial and vitiate it from the start, or is it one
of many regulations designed to ensure a fair and
proper trial so that ‘substantial’, as opposed to purelyPage No.46/56
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Crl.A.(MD)Nos.87 & 94 of 2017technical, compliance with the spirit and requirements
of the Code in this behalf is enough to cure departures
from the strict letter of the law?
6. Before we proceed to set out our answer and
examine the provisions of the Code, we will pause to
observe that the Code is a code of procedure and, like
all procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of
endless technicalities. The object of the Code is to
ensure that an accused person gets a full and fair trial
along certain well-established and well-understood
lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is
told and clearly understands the nature of the offence
for which he is being tried, if the case against him is
fully and fairly explained to him and he is afforded a
full and fair opportunity of defending himself, then,
provided there is ‘substantial’ compliance with the
outward forms of the law, mere mistakes in procedure,
mere inconsequential errors and omissions in the trial
are regarded as venal by the Code and the trial is not
vitiated unless the accused can show substantial
prejudice. That, broadly speaking, is the basic
principle on which the Code is based.”
162. To the same effect are the subsequent
decisions of this Court to which we have referred to
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above. Applying the test laid down in the said cases
we have no hesitation in holding that there was
nothing fundamentally wrong with the charges framed
against the appellants nor have the appellants been
able to demonstrate that they suffered any prejudice
on account of the alleged defects. The High Court has
in our opinion taken a correct view on the question
urged before it which does not call for any
interference.
26.Discussion on minor contradiction & discrepancies:
The learned counsel submitted some contradiction in the evidence of
the witnesses were elicited during the course of the cross examination and
the said contradiction affected the testimony of the witnesses. The said
submission is not accepted for the reason that as already stated above, the
witnesses were examined after 9 years. In the said circumstances, the minor
contradiction like place of keeping the bribe amount, type of the chair, place
of the recovery of the bribe amount are immaterial one and the same do not
affect the root of the prosecution case. Therefore, the discrepancy pointed out
by the learned counsel for the appellants is not material. The Hon’ble
Supreme Court has held that only the contradiction, discrepancy which affect
the root of the prosecution case alone is to be considered to disbelieve the
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Crl.A.(MD)Nos.87 & 94 of 2017testimony of the witness. The Hon’ble Supreme Court in the case of Rakesh
v. State of U.P., (2021) 7 SCC 188 at page 197
14…. One is required to consider the entire evidence
as a whole with the other evidence on record. Mere one
sentence here or there and that too to the question asked
by the defence in the cross-examination cannot be
considered stand alone.
Since the delay in recording the evidence is normally caused such
contradiction which is not material does not affect the prosecution case as
held by the Hon’ble Supreme Court in the following judgement.
Jaiprakash Vs. State of U.P., reported in (2020) 17 SCC 632 at page
640
20… The witnesses who have deposed in the court after
considerable lapse of time of course, cannot be expected
to have photographic memory of the case. We are
conscious of the well-settled position that the minor
discrepancies not touching upon the core of the
prosecution case, would not affect the credibility of the
witnesses or the prosecution case.
In Rakesh v. State of U.P., reported in (2021) 7 SCC 188 at page 195
9. …There may be some minor contradictions, however, as
held by this Court in a catena of decisions, minor
contradictions which do not go to the root of the matter
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and/or such contradictions are not material
contradictions, the evidence of such witnesses cannot be
brushed aside and/or disbelieved.
In Mritunjoy Biswas v. Pranab, reported in (2013) 12 SCC 796 at
page 809
28. It is well settled in law that the minor discrepancies are
not to be given undue emphasis and the evidence is to be
considered from the point of view of trustworthiness. The test
is whether the same inspires confidence in the mind of the
court. If the evidence is incredible and cannot be accepted by
the test of prudence, then it may create a dent in the
prosecution version. If an omission or discrepancy goes to
the root of the matter and ushers in incongruities, the defence
can take advantage of such inconsistencies. It needs no
special emphasis to state that every omission cannot take
place of a material omission and, therefore, minor
contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution case
and should not be taken to be a ground to reject the
prosecution evidence. The omission should create a serious
doubt about the truthfulness or creditworthiness of a witness.
It is only the serious contradictions and omissions which
materially affect the case of the prosecution but not every
contradiction or omission (see Leela Ram v. State of Haryana
[(1999) 9 SCC 525 : 2000 SCC (Cri) 222] , Rammi v. State of
M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] and Shyamal
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Crl.A.(MD)Nos.87 & 94 of 2017
Ghosh v. State of W.B. [(2012) 7 SCC 646 : (2012) 3 SCC
(Cri) 685] ).
In view of the above judgment, the minor contradiction cannot affect the
prosecution case. Further, the above contradiction is not at all material one.
27.Discussion on the precedents relied upon on behalf of the
appellant:
The learned counsel for the appellants relied upon the case in
Crl.A(MD)No.37 of 2007 and as far as the said judgment is concerned, in the
complaint, it was specifically stated that there was no acquaintance with the
appellant and considering the circumstances and also no evidence was there
to prove the demand,this Court acquitted the accused. Further in that case,
complaint was made by the appellant against P.W2. In that case, P.W2 was a
politician and had the intention to falsely implicate. Considering all the
circumstances, this Court acquitted the appellant. In that case, FIR was also
marked. In this case no such circumstances is available. Ex.P1 in this case is
not relating to P.W3-Pandi. Hence, in this case, the above said judgment of
this Court is not applicable, but the Supreme Court judgements referred supra
are applicable to the present case. Similarly, the judgement reported in 2021
3 SCC 687 N Vijayakumar Vs. State of Tamilnadu, is also not applicable to
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Crl.A.(MD)Nos.87 & 94 of 2017the facts of this case, as in the said judgement, there was no evidence to
prove the demand and acceptance. But in the case on hand, the evidence of
P.W2 and P.W4 and other material circumstances, namely, the recovery of the
documents from the custody of the appellant are available.
27.1.Similarly, the appeal judgement in Crl.A(MD)No.409 of 2017,
where this Court considered the place where the amount was kept is the
notebook not in the chair and only his signature to the seizure mahazar was
available. Considering the other circumstances, this Court acquitted the
accused. The judgement related in Crl.A(MD)No.693 of 2008 has no
application to the present case, where this Court specifically held that before
getting information from vigilance officers, the official witness was present
at the vigilance office, that created a serious doubt over the initiation of the
trap itself. Further, the complainant’s evidence also created doubt. The
learned Judge in that case, clearly gave a finding that trap proceedings is
concocted one. There was no such circumstances in this case to accept that
the trap proceedings is concocted one. In the Judgement reported in
2018(1)LW(cri)6996, this Court specifically rendered finding that the
prosecution failed to prove the marked currency from the appellants. In this
case, marked currency was recovered based on the disclosure by A2. The
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Crl.A.(MD)Nos.87 & 94 of 2017evidence of P.W2, P.W4 and P.W11 is concerned they are cogent,
corroborated with each orther and trustworthy in respect of A1 that he
received the amount and handed over it to A2 and A2 disclosed the place
where the amount was kept.
28.Conclusion:
In all aspects, the prosecution clearly proved the case against A1 for
the offence under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act and proved the case against A2 under Sections 7, 13(1)(d) r/w
13(2) of the Prevention of Corruption Act r/w 109 IPC. Pending appeal, A2
died and his legal hairs are impleaded. Considering the age and other
ailments of the appellant in Crl.A.(MD).No.94 of 2017, this Court is inclined
to reduce the sentence alone as against the appellants for the offence under
Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w 109
IPC from three years to one year.
29. Accordingly, these Criminal Appeals are partly allowed in the
following terms:
(i)The conviction passed against the appellants for the offence under
Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act in Special
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Crl.A.(MD)Nos.87 & 94 of 2017Case No.17 of 2014 on the file of the learned Special Judge for the
Prevention of Corruption Act Cases, Sivagangai, vide judgment dated
09.03.2017 is hereby confirmed.
(ii) The sentence of three years Rigorous Imprisonment and a fine of
Rs.1000/- to the first appellant, in default to undergo 6 months simple
imprisonment for the offence under Section 7 of the Prevention of Corruption
Act; and to undergo three years of rigorous imprisonment and to pay a fine of
Rs.1,000/- to each appellant, in default to undergo 6 months of simple
imprisonment for the offence under Sections 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act.
is modified into
“ to undergo one year simple imprisonment for the offence under Section 7 of
the Prevention of Corruption Act; and to undergo one year simple
imprisonment for the offence under Sections 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act and the sentences are to run concurrently and
the judgment relating to the fine amount is hereby confirmed”.
12.03.2024
NCC : Yes
Index : Yes
Internet : Yes
PJL/sbn
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Crl.A.(MD)Nos.87 & 94 of 2017
To
1.The Special Judge for Prevention of Corruption Act Cases,
Sivagangai.
2.The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Sivagangai.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4. The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD)Nos.87 & 94 of 2017
K.K.RAMAKRISHNAN,J.
PJL/sbn
Predelivery Common Judgment
made in
CRL.A(MD).Nos.87 and 94 of 2017
12.03.2024
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