RAJAMANI Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal has been preferred against the judgment of the learned Chief Judicial Magistrate, Salem convicting and sentencing the accused/appellant in Special Case No.29 of 1988, dated 20.9.1988 on his file.

(2.) THE short facts which have given rise to the filing of the appeal is given below: Anbuselvam, P.W.1 is a barber by profession and he is having a barber shop at Mallamuppanpatty, Salem District. During May, 1987, the appellant Rajamani was working as Village Administrative Officer of the said village, having his office at Chittanur. At that time, P. W. 1 found an advertisement in Daily Thanthi paper that the Government of Tamil Nadu is giving bank loans for the development of barbers through the Harijan and Social Welfare Department. When Anbuselvam, P.W.1 approached the accused along with P.W.2, Palanisamy to get community certificate and income certificate, to obtain the said loan, the accused demanded illegal gratification of Rs.100 to issue the certificates. On 6. 1987, when again approached, the appellant/ accused agreed to receive Rs.50. P. W. 1 who was aggrieved with the attitude of the accused/ appellant demanding illegal gratification as he was very poor, made a complaint Ex.P -5 to the Deputy Superintendent of Police (Anti -corruption), Salem, with the help of P.W.2. The Deputy Superintendent of Police, P.W.10, registered a case in Cr.No.3/AC/87 under Sec.161, I.P.C. and Sec.5(1)(e) read with 5(2) of Prevention of Corruption Act, 1947 and took up the case for investigation. P.W.10, the Deputy Superintendent of Police and the Investigating Officer requisitioned the help of P.W.3 Venkatraman, working at the time in the District Forest Office and also Thirumalai, working in the District Education Office. P.W.10 introduced P.W.3 Venkataraman and Thirumalai to P.Ws.1 and 2 in his office. Likewise, he introduced P.Ws.1 and 2 to P.W.3 and Thirumalai. Thereafter, he gave a copy of the First Information Report, to P.W.3 and Thirumalai and asked them to read the same. Thereafter, P.W.10 got Rs.50 which P.W.1 intended to give to the accused as illegal gratification. P. W. 1 gave one twenty rupee currency note, one ten rupee currency note, and four five rupee notes to P.W.10. They are M.Os.1 to 6. P.W.10 gave the currency notes to P.W.3 and asked him to read the numbers one by one and P.W.3 read the numbers. Thirumalai noted the same in a paper. Thereafter, P.W.10, explained the importance of Phenolphthalein powder test to the witnesses P.W.3 and Thirumalai. Then P.W.10 smeared phenolphthalein powder on the currency notes produced by P.W.1. Thereafter, P.W.1 asked Thirumalai to count the notes. Then, P.W.10 prepared sodium carbonate solution in a glass tumbler and asked Thirumalai to dip both his hands in the solution. It became pink in colour. After explaining the same to P.W.3 and Thirumalai, P.W.10 poured the solution in a glass bottle sealed it and gave the number S -1. The said bottle has been marked as M.O.11. Then P.W.10 returned M.Os.1 to 6 to P. W. 1 and instructed him to give it to the accused, only if he demanded the illegal gratification of Rs.50. If the accused received the amount, P.W.1 was further instructed to come out of the office of the accused and give signal by combing his head with his fingers. Thereafter, P.W.10 made a note of the samples of the sodium carbonate solution and phenolphthalein powder used and they have been marked as M.Os.12 and 13. Ex.P -6, mahazar was prepared by P.W.10 for that purpose. Ex.P -6 has been attested by P.W.3 and Thirumalai. Thereafter, P.W.10 with his police party along with P.Ws.1,2 and 3 and Thirumalai went to Chittanur in two different vehicles. When they reached Chittanur, P.Ws.1 and 2 alone went to the office of the accused situate in Chittanur Iron Factory main road. They were followed by P.W.10 and others. P.Ws.1 and 2 found the office of the accused locked. When they enquired the village helper, Jagannathan, he informed the accused was not in office. Thereafter, P.Ws.1 and 2 conveyed the message to P.W.10. P.W.10 drew the proceedings Ex.P -7 to that effect. P.W.3 and Thirumalai attested the same. Thereafter, P.W.10 instructed P.W.1 and P.W.2 to come to his office at 10.30 a.m. on the next day. Accordingly, P.Ws.1 and 2 appeared before P.W.10 on 16. 1987 at 10.30 a.m. P.W.3 and Thirumalai also came there. Thereafter, P.W.10 verified the amount of Rs.50 intended to be given to the accused and returned it to P.W.1. Ex.P -21, mahazar, was prepared for that purpose. Thereafter, all of them went to Chittanur in two vehicles and reached there at 1.30 p.m. After reaching the village. P.Ws.1 and 2 along proceeded the office of the accused, the Village Administrative Officer. The others followed them. Again they found that the office of the accused was closed. P.W.10. and others were hiding nearby school and watching. P.Ws.1 and 2 waited before the office of the accused. At 1.45 p.m., the accused came to the office in Explorer Moped and asked P.Ws.1 and 2 to come to his office. The accused asked P.Ws.1 and 2 whether they brought the money, for which P.W.1 answered in the affirmative. Thereafter, P.W.1 gave M.Os.1 to 6, currency notes, to the accused. The accused received the same and put it in his shirt pocket. M.O.7 is the shirt worn by the accused at that time. P.W.1 was having in his hand the loan application and application for income certificate and community certificate. The accused received the same, filled and gave it to P.W.1, P. W.2 signed as an attestor. Ex.P -2 is the loan application. Ex.P -3 is the income certificate. Ex.P -4 is the community certificate issued by the accused. After receiving them, P.W.1 came out of the office of the accused and gave signal as instructed by P.W.10. P.W.10 went inside the office of the accused along with P.W3 and Thirumalai and his party. P.W.10 instructed P.Ws.1 and 2 to meet him at 4.30 in his office. P.W.10 introduced himself and others to the accused. Thereafter, P.W.10 prepared sodium carbonate solution in the same order in two glass tumbler. Thereafter, he directed the accused to dip both his hands in the said solution. When the appellant accused did so, the solution became pink in colour. Then, P.W.10 poured the solution in two bottles and carefully sealed them. They are M.Os.8 and 9. Thereafter, P.W.10 enquired about the illegal gratification received from P.W.1. The accused produced one twenty rupees currency note, one ten rupees currency note and four five rupees currency notes, M.Os.l to 6 and P.W.1 compared the numbers in the currency notes with the numbers in the mahazar, Ex.P -6. On the instruction of P.W.10, the accused removed his shirt and gave it to P.W.10. P.W.10 dipped the pocket portion of the shirt in the sodium carborate solution and it became pink in colour. P.W.10 then poured the solution in a bottle and sealed them. The said bottle is M.O.10. Thereafter P.W.10 prepared a mahazar regarding the happenings in the office of the accused, which is Ex.P -8, which was attested by P.W.3 and Thirumalai. Thereafter, P.W.10 summoned P.W.1 to introduce Exs.P -2 to 4 and they were seized by P.W.10 under a mahazar, Ex.P -9. Thereafter, P.W.10 prepared a rough sketch of the office of the accused, which is Ex.P -22. Then, P.W.10 arrested the accused. On the said allegations, charge sheet was filed against the accused and he was tried before the learned Chief Judicial Magistrate, Salem in Special Case No.29 of 1988. 10 witnesses were examined on the side of the prosecution and 23 Exhibits and 13 M.Os. were marked. One witness was examined and a book containing 285 applications was marked on the side of the accused. On appreciation of the evidence placed before him, the learned Chief Judicial Magistrate, Salem reached the conclusion that the charges framed against the accused under Sec.161, I.P.C., Sec.5(lXe) read with 5(2) of the Prevention of Corruption Act had been proved beyond reasonable doubt and convicted the accused under the above sections of law. For the offence under Sec.5(1)(e) read with 5(2) of the Prevention of Corruption Act, the accused was sentenced to undergo R.I. for a period of one year and pay a fine of Rs.500 in default to undergo R.I. for three months. No separate sentence was imposed under Sec.161, I.P.C. Aggrieved with the above conviction and sentence imposed by the trial Magistrate, the accused/ appellant has come forward with this appeal.

(3.) THE learned counsel for the appellant, Mr.K.V. Sridharan, forcibly contended that the alleged bribe given by P.W.1 Anbuselvam has not supported the case of the prosecution and turned hostile. The prosecution is rest content only with the marking the signature of P.W.1 in the complaint allegedly given by him in Ex.P -5 as Ex.P -1. It was argued that P.W.2 Palanisamy is inimically disposed towards the appellant and he had cunningly implicated the appellant in the case. It was also brought to the notice of this Court that the alleged loan scheme had been extended only to the towns and not to the villages and when P.W.1 approached the appellant for the issue of community and income certificates for the purpose of obtaining the loan, the appellant had clearly told him that the loan scheme is not extended to the village Mallamuppanpatty and refused to issue the certificates. However, P.W. 1 insisted for the certificates and therefore, the appellant had agreed to issue the certificates, viz., Exs.P -3 and 4. It was further argued on behalf of the appellant the father of P.W.2 was in arrears of house tax and sometime earlier P.W.2 paid the house tax and among the money paid by P.W.2, there was a torn and dirty 50 rupees currency note which the appellant declined to receive. At the time P. W.2 requested the appellant to pay the house tax with his money and some time later, he will repay the said 50 rupee currency note. On 16. 1987, P.W.2 came to the office of the appellant and paid M.Os.1 to 6 the said 50 rupees and implicated him in the case as if he received bribe from P.W.1 for issuing the certificates. One other contention that was raised on behalf of the appellant is that P.W.2 and some of his friends belonging to D.M.K. party gave a petition to the Tahsildar containing the names of 285 persons requesting those names have to be deleted from the voter's list as the same were bogus. On the instruction of the Tahsildar, the appellant made an enquiry and found only a few names were bogus and the major portion of the names were true and when he told about it to the appellant, there was enmity which also prompted P.W.2 to implicate the appellant in the case. The learned counsel for the appellant also argued, once the appellant met P.W.2 in the barber shop of P.W. 1 and took him to task for not repaying Rs.50 which he had requested him to pay towards the arrears of house tax of his father, and he had not paid it for a very long time.