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Chidambaram v. State - Crl.A.405 of 2000  RD-TN 2440 (23 July 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 23.07.2007
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.405 of 2000
Chidambaram .. Appellant/Accused Vs.
State rep by
The Inspector of Police,
Central Bureu of Investigation .. Respondent/Complainant Prayer:- This appeal has been preferred against the judgment dated 19.4.2000 made in C.C.No.27 of 1998 on the file of the III Additional District Judge, (CBI Cases), Coimbatore. For Appellant :Mr.V.Gopinath, Senior Counsel for Mr.G,.Anantharangan
For Respondent :Mr.N.Chandrasekaran Special Public Prosecutor for CBI cases JUDGMENT
This appeal has been preferred against the judgment in C.C.No.27 of 1998 on the file of the III Additional Sessions Judge (CBI cases), Coimbatore.
2.The complaint was preferred by CBI before the learned Sessions Judge for CBI case, Coimbatore, who after taking cognizance of the same had issued summons to the accused and on his appearance furnished copies under section 207 of Cr.P.C., and framed charges under Section 7 & 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and when questioned the accused pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.8 were examined, Ex.P.1 to Ex.P.19 were exhibited and M.O.1 to M.O.3 were marked.
3.P.W.1-Mr.A.S.Athil is the complainant. According to him, he is indulging in business in connection with diesel engine at Thirupur along with his partners and that the telephone indicator number assigned to his office is 423450, which stood in the name of his father and that after the death of his father, he wants to transfer the name of the telephone indicator number in his name and for that purpose he had preferred an application before the Commercial officer, Tele-communications, Thirupur. Ex.P.1 is the legal heir certificate dated 7.10.1997. Ex.P.2 is the application preferred by him before the Commercial Officer, Tele-communications, Thirupur. Ex.P.3 is the application preferred by him for transferring the telephone connection from his old office to the new office at Tharapuram Road, Sudarmarni Compound, Thirupur. Ex.P.4 is the application, in which notary signed, and had sent along with Ex.P.3. Since there was inordinate delay in transferring the telephone connection he made an enquiry with the Commercial Offier, Telephone Department on 12.12.1997 from where he was informed that necessary orders have already been passed on his application and advised him to contact telephone exchange at Veerapandi. Thereafter he contacted telephone exchange at Veerapandi, where he contacted the JE-Chidambaram and enquired about the reason for delay in transferring the telephone connection to his new office from his old office. At that time JE-Chidambaram, the accused herein, had demanded Rs.1,000/- for effecting the transfer connection of the telephone from his old office to the new office and at his request he met the accused on 15.12.1997 between 3 pm and 4 pm at telephone exchange at Veerapandi, where he met the accused-Chidambaram and informed him that his application has not reached the office and further demanded Rs.1,000/- for effecting the new connection. Since he is not for giving the bribe to the accused, he immediately contacted CBI, Vigilance and Anti Corruption Department and that he got the telephone number of the CBI, Vigilance and Anti Corruption Department through 'Thinamalar' daily. When he contacted the CBI office, he was asked to prefer a complaint with the DSP-Ramasamy (C.W.1), who had informed him to meet him at Thirupur the following day and accordingly, P.W.2 met the CBI officials at PVS lodge, Thirupur on the next day and informed them about the demand of bribe of Rs.1000/- from him by the accused and the CBI Official have directed him to prefer a written complaint and accordingly he gave Ex.P.5-written complaint dated 17.12.1997. The CBI officials have asked him to wait in the room and left and after 1 = hours they returned with two bank officials and introduced them to him. They are Raman and Anandan. As requested by the CBI official he gave Rs.1000/- in 10 notes of 100 rupees denomination. The CBI officials have noted the currency note numbers in the ten 100 rupees notes handed over by him to the CBI officials in a paper. The said ten 100 rupees are M.O.1 (series). One of the CBI officials had read over the complaint preferred by him to the two bank officials viz. Raman and Anandan and had prepared Sodium carbonate solution in two separate glass tumblers and in one glass tumbler he poured plain water and sodium carbonate and phenolphthalein test were demonstrated before him and before the witnesses. He had mixed the Sodium carbonate in the glass which contained plain water. There was no colour change in the said solution. Afterwards he had sprinkled phenolphthalein powder on the ten 100 rupees notes and asked one of the bank officials to count the notes, accordingly the bank official Raman had counted the currency notes and he was asked to dip his fingers in the glass tumbler containing sodium carbonate solution. When Raman dipped his fingers in the said solution the colour of the solution turned into pink. The CBI official had placed the ten 100 rupees notes (decoy notes) in P.W.1's shirt pocket and the CBI officials have instructed the witnesses to go along with him (P.W.1) to meet the accused and further instructed that only on demand the amount shall be handed over to the accused. Thereafter he took the bank official Ananthan in his Maruthi van and proceeded to telephone exchange at Veerapandi and met the accused at about 12.30 pm and that the other bank official Raman and other CBI officials followed the maruthi van in a taxi. Even before leaving the lodge the CBI officials have instructed him (P.W.1) to give the signal to the CBI official who were waiting outside the office of the accused after handing over the bribe amount to him. He met the accused along with decoy witness Anandan at his office in the telephone exchange at Veerapandi, who had offered them seat. The accused had demanded Rs.1000/- from him (P.W.1). He(P.W.1) took out the Rs.1000/- ten 100 rupees currency notes from his pocket and handed over the same to the accused, who after counting the same placed it in his table. Thereafter the Bank official Anandan went out and gave signal as instructed by the CBI officials. Immediately CBI official Ponnalagan and another bank official Raman entered the office of the accused along with some other officials. After identifying themselves to the accused they enquired whether any bribe amount was received by the accused. He (P.W.1) has immediately left the room and after a short while he again entered into the room. At that time CBI officials asked the accused to dip his fingers in a solution contained in a glass tumbler and accordingly the accused dipped his fingers in both the hands separately in the solution contained in two separate glass tumbler, and on doing so, the colour of the solution turned into pink. The CBI officials have collected the pink colour solution in two separate glass bottles and affixed their seal over the lid and they also pasted the labels over the said glass bottles and obtained the signatures of the witnesses. P.W.1 has also identified M.O.2 & M.O.3 are the bottles containing the pink colour solution which were assigned the letters A & B. One of the CBI official had prepared a mahazar for the currency notices seized from the accused and he took 3 or 4 hours to prepare the said recovery mahazar, Ex.P.6. Ex.P.7 is the mahazar prepared at the lodge. The said Ex.P.7 was prepared in the morning at about 10.30 am.
4. P.W.2-Raman is a clerk-cum-typist in the State Bank of India, Thirupur Branch. He is the trap witness, who had accompanied P.W.1 to the office of the accused and in whose presence the bribe amount of Rs.1000/- was handed over by P.W.1 to the accused. According to him, after P.W.1 had handed over the decoy amount to the accused, he came out of the office room of the accused and gave signal to the CBI officials who were waiting outside the office of the accused. He has corroborated the evidence of P.W.1 in other respects. He has also signed as a witness in Ex.P.6-mahazar. According to him, after seizure of the bribe amount M.O.1(series) the numbers in the currency notes were compared with the numbers noted in Ex.P.7-mahazar prepared in the lodge, at the time when the phenolphthalein test demonstration was held before him by the CBI officials. He has also signed as a witness in the inventory and search list Ex.P.8 & Ex.P.9 respectively.
5.P.W.3 is the junior engineer in telephone department. According to him, P.W.1-Athil had sent an application for shifting the telephone indicator No.423450 from his old office to his new office. He would identify Ex.P.2 & Ex.P.3 as the applications received from P.W.1. According to him, Ex.P.2 & Ex.P.3 were accompanied with an affidavit of P.W.1. Ex.P.1 is the legal heir certificate, Ex.P.4 is the affidavit accompanied along with P.W.1's applications Ex.P.2 & Ex.P.3 and that the applications sent by P.W.1 were approved by the Divisional Engineer, Telephone department on 9.12.1997 and the telephone indicator No.423450 was transferred in the name of P.W.1 on 10.12.1997 from the name of his deceased father. Ex.P.10 is the work order copy for shifting the telephone from his old office to his new office and that he has passed the shifting order on 11.12.1997 under Ex.P.11 and that since the new office of P.W.1 comes within a different exchange he had cancelled Ex.P.11-order and a fresh order under Ex.P.12 was passed on 16.12.1997 and now the new indicator number 712550 was given to the new telephone connection of P.W.1 by Veerapandi Telephone exchange.
6.P.W.4 has given Ex.P.14 to Ex.P.16-status reports. He speaks about the procedure to be followed while shifting the telephone from one place to another place. He would ascertain that the new telephone indicator numbers 712550 was given to the new office of P.W.1.
7.P.W.5-Annanthan is a clerk-cum-cashier in SBI. According to him, during 1997 he was working as a trainee officer in SBI at Thirupur. He would corroborate the evidence of P.W.1 and P.W.2. As per the request made by the CBI officials he along with P.W.2 went to PVS lodge, Thirupur on 17.12.1997 at about 9.30 am, where he was introduced to CBI official DSP-Ramasamy at room No.141. The CBI official DSP-Ramasamy had read out Ex.P.5-complaint to him and P.W.2. He would also depose that Sodium Carbonate and Phenolphthalein test was demonstrated in the said lodge by DSP-Ramasamy. After the demonstration was over, he has signed in Ex.P.7-entrustment mahazar. He has accompanied P.W.1 to the office of the accused. He would corroborate the evidence of P.W.1 about the demand of the bribe amount by the accused and handing over of the decoy amount by P.W.1 to the accused in his presence and as instructed by the CBI officials he came out of the room and gave a signal to the CBI officials, who were waiting outside the office of the accused by wipeing his face with his kerchief and on seeing his signal the CBI official and other witness Raman went inside the office room of the accused. According to him, he was also present when the phenolphthalein test was conducted for the accused. He has also signed as a witness in M.O.2 & M.O.3. He has also signed as a witness in Ex.P.6-recovery mahazar for the recovery of the decoy currency notes seized from the possession of the accused. Ex.P.8 & Ex.P.9 inventory list and search list respectively were prepared in his presence and he has signed in both the documents as a witness.
8.P.W.6 is an officer in telephone department (Deputy Genearal Manager, Telephones at Thirupur), who had granted the sanction for prosecution against the accused. Ex.P.17 is the order of sanction for prosecution.
9.P.W.7 is the Inspector of Police, CBI/ACB. According to him, on 16.12.1997 as per the directions of the Superintendent of Police, he went to Thirupur to attend some works in connection with his department. He received a message, which was received from Thirupur. On 16.12.1997 he had proceeded to Thirupur along with his team consisting of him, DSP-Ramasamy, Inspector Mr.M.Jeyarajan, SI Mr.K.Praveen Kumar, and two other constables. They reached Thirupur at about 5.45 am on 17.12.1997 and stayed at PVS lodge. P.W.1-Athil met DSP-Ramasamy at about 8.00 am in his room and complained that the accused had demanded Rs.1000/- for shifting his telephone from his old office to his new office. As requested by Mr.Ramasamy DSP, he went out for some time and returned back with a written complaint and handed over the same to DSP Ramasamy. He has deputed his constable Mr.Kumaresan to take the complaint with him and to hand over the same to the Superintendent of Police CBI. After leaving P.W.1 in the lodge room, he went outside to verify the genuineness of the complaint and went to SBI main branch Thirupur and secured two witnesses viz.Ananthan and Raman and they proceeded to PVS lodge and introduced the witnesses to P.W.1 and also vice-versa and phenolphthalein test was demonstrated before the witnesses with the help of the decoy amount produced by P.W.1 and a mahazar Ex.P.7 was prepared in the lodge itself and thereafter P.W.1 & P.W.2-Ananthan along with some CBI officials went to the office of the accused. He also instructed P.W.1 that only on the demand of the accused he shall hand over the decoy amount to him and also instructed Ananthan after the accused receiving the bribe amount he shall come out of the office of the accused and wipe his face with his kerchief. He also speaks about the trap conducted in the office of the accused after the bribe amount was handed over by P.W.1 to the accused, which was informed to him by way of signal as instructed to P.W.2-Ananthan. He speaks about the seizure of M.O.1 & M.O.2 and also about Ex.P.6-mahazar and Ex.P.9-search list.
10.P.W.8 is the Inspector of Police, CBI/ACB at Madras. According to P.W.8-Mr.Prem Anand, a complaint was received from P.W.1 on 17.12.1997 at about 9.30 pm, which was registered by him under R.C.No.64(A)/97 under Section 7 of the Prevention of Corruption Act against the accused. Ex.P.5 is the complaint preferred by P.W.1 on 23.12.1997 by Inspector Mr.C.Ponnalagan who had handed over the original documents relating to his case with two bottles containing the hand wash of the accused and the trap money Rs.1000/- ( Rs.100 x 10). He had prepared an invoice and sent the original documents along with the seized docuements under search list. The two bottles containing the hand washes of the accused, all the mahazars and the trap amount were sent to the court for remand. He has examined the witnesses and recorded their statements. The material objects were sent to Forensic Science Laboratory through Court for chemical examination. Ex.P.18 is the lab report dated 8.7.1999. He has filed the charge sheet against the accused after obtaining the sanction for prosecution on 17.9.1998.
11.The learned trial judge not satisfied with the witnesses examined before him, had directed the prosecution to examine C.W.1-Mr.Ramansamy, the then DSP, CBI.
12.When incriminating circumstances were put to the accused, he would deny his complicity with the crime. The learned trial judge after going through the evidence both oral and documentary miserably has come to the conclusion that the charges under Section 7 and 13(1)(e) r/w 13(2) of the Prevention of Corruption Act have been made out against the accused and accordingly convicted and sentenced the accused to undergo one year RI and a fine of Rs.1000/- under each of the above said charges. Aggrieved by the findings of the learned trial Judge, the accused had preferred this revision.
13.Heard the learned senior counsel Mr.V.Gopinath appearing for the appellant and the learned Special Public Prosecutor Mr.N.Chandrasekaran and considered their respective submissions.
14.The point for determination in this appeal is whether the entire case of the prosecution is vitiated as contended by the learned senior counsel for the reason that the investigation has commenced even prior to the filing of the FIR?
15.The Point:- 15(a) When the appeal was taken up for hearing on 27.6.2007, the learned senior counsel Mr.V.Gopinath contended that the complaint Ex.P.5 preferred by P.W.1 before C.W.1, according to the Prosecution, on 17.12.1997 at Thirupur and the same was sent to Chennai to the office of the CBI, Vigilance and Anti Corruption, Shasthri Bhavan, Chennai-6 and that only on the basis of Ex.P.5, Ex.P.19-FIR was registered. But absolutely there is not link in this case to show that Ex.P.5 was sent from Thirupur to Chennai on 17.12.1997 except the ipsi-dixit of C.W.1-DSP Ramasamy. It was brought to the notice of this Court, one Kamaresan, the then constable, was deputed by CBI to take Ex.P.5 from Thirupur to Chennai on 17.12.1997 itself, was not examined by the prosecution. This Court felt that the evidence of the said CBI constable Kumaresan was absolutely necessary. A direction was given to the learned trial Judge to examine the said Kumaresan and submit his deposition. Accordingly the learned trial Judge has recorded the evidence of Kumaresan C.W.2 and submitted his deposition. 15(b)The learned senior counsel relying on 2003 SCC (Cri) 1305 (Superintendent of Police, CBI and others Vs. Tapan Kumar Singh), and contended that a police office is bound to record the information first and then to conduct an investigation. The exact observation in the said judgment in a case of similar nature runs as follows:- "Section 156 Power of police officer to investigate a cognizable case for taking up investigation in a cognizable case, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed if the police officer has reasons to suspect so, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation there is no need for the police to be satisfied about the truthfulness of the information at this stage matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence, stated Where the General Diary entry recorded on the basis of a telephone information disclosed commission of a cognizable offence under Section 13 of the PC Act, 1988, held the SP, CBI rightly proceeded to intercept the accused and investigate the case." At least in the above said case the police, who had conducted the investigation had made entries in the GD about the complaint before proceeding with the investigation, which is totally lacking in this case, according to the learned senior counsel. According to the learned senior counsel, Ex.P.5-complaint itself was created only for the purpose of this case after the trap was over. 15(c) The learned Special Public Prosecution Mr.N.Chandrasekaran for CBI Cases would contend that on the basis of the complaint made by P.W.1 under Ex.P.5, the same was forwarded to the Superintendent of Police CBI, Shasthri Bhavan, Chennai-6 by C.W.1 through C.W.2, the then constable Kumaresan. The learned Special Public Prosecutor would focus the attention of this Court to the initials made by the said Superintendent of Police, Chennai on 17.12.1997 itself in Ex.P.5 and would contend that the complaint under Ex.P.5 reached Chennai on 17.12.1997 itself and thereafter only the investigation was proceeded with by C.W.1-DSP Ramasamy. The learned Special Public Prosecutor would further contend that only on the basis of Ex.P.5-complaint the FIR was registered under Ex.P.19 on 17.12.1997 at 9.30 pm itself. The endorsement made by the Inspector of Police Mr.C.G.Prem Anand on Ex.P.19 discloses that from the complaint Ex.P.5 it came to light that a commission of offfence punishable under Section 7 of the Prevention of Corruption Act, 1988 has been committed and as per the orders of the Superintendent of Police, CBI-ACB Chennai, a regular case no in R.C.No.64(A)/97 has been registered by him and taken up for investigation. So it is the bounden duty of the prosecution to prove that Ex.P.5 reached Chennai on 17.12.1997 itself from Thirupur and on the basis of Ex.P.5-complaint Ex.P.19-FIR was registered and as per the directions of the Superintendent of Police to whom Ex.P.5 was addressed, the regular investigation was taken up by P.W.8-Prem Anand. The learned Special Public Prosecutor Mr.N.Chandrasekaran would represent that we cannot suspect the bonefides of Ex.P.5 & Ex.P.19 records on origin because both the documents have reached the Court on 19.12.1997 itself. No doubt both Ex.P.5 & Ex.P.19 have reached the Court on 19.12.1997 i.e., two days after they came into existence. The Main point looms large before this Court is that whether Ex.P.5 would have been originated on 17.12.1997 itself. 15(d) The following points are not clarified by the prosecution, according to this Court:- i)C.W.2-Kumaresan, according to the prosecution, who had carried Ex.P.5 from Thirupur to the Superintendent of Police CBI, Chennai on the same date ie., 17.12.1997 in his evidence in the cross-examination, would admit that he received the cover on 17.12.1997 at 9.00 am from C.W.1 and P.W.8 and that he does not know what the cover contained. According to him, he carried the cover on the same day from Thirupur to Salem in one bus and from Salem to Chennai in another bus and that he has not handed over the bus tickets to P.W.8, Inspector of Police, but he would admit that the said bus tickets were purchased out of his own money and that by way of presenting a bill he will get the reimbursement of the travelling allowance after one or two months. He would further say that he does not remember the date and month on which he got the said reimbursement of his travel allowance from Thirupur to Chennai. Further in the cross-examination C.W.2-Kumaresan would admit that it will take 10 = hours to 11 hours to reach Chennai from Thirupur and that he left Thirupur at 9.00 am. So even according to the version of C.W.2-Kumaresan if he would have started by 9.00 am at Thirupur it is not possible to reach Chennai before 8.00 pm. But he would admit that he went to Salem in one bus and from there in another bus he reached Chennai. He has not stated in his evidence at what time the bus in which he travelled from Thirupur reached Salem and in what bus he boarded at Salem to reach Chennai and at what time the said bus reached Chennai. Further as per Ex.P.5-complaint Ex.P.19 was registered under Cr.No.R.C.No.64(A)/97 on 17.12.1997 at 9.30 pm. According to P.W.1, he went to the office of the accused between 12.00 noon to 12.30 pm on 17.12.1997 itself. According to P.W.2, the trap was over by 5.00 pm on 17.12.1997. According to P.W.5, the entire proceedings come to an end by 3.00 pm on 17.12.1997. According to C.W.1, after receiving the complaint it was sent to the Superintendent of Police, Chennai, through C.W.2 and he had received the complaint at about 9.30 pm on 17.12.1997 and registered the case under Cr.No.R.C.No.64 (A)/97 under Section 7 of the Prevention of Corruption Act. C.W.1-Ramasamy DSP after sending Ex.P.5 to the Superintendent of Police CBI, Chennai, had proceeded with the investigation and also arranged trap. He had accompanied the witnesses to the office of the accused and the trap was arranged and the accused was caught red handed. In the cross-examination, C.W.1 would say that P.w.1 had presented the complaint only to him and he would state that he does not know where the complaint was prepared and by whom. He is definite that Ex.P.5 was preferred at the lodge. But the author of the complaint Ex.P.5, P.W.1 would depose in the cross-examination that the complaint was prepared by one of his friends whose name he does not remember and that the said complaint was prepared at the reception in PVS lodge and that the complaint was prepared only after the arrival of CBI officials to the lodge and that the compliant was handed over by him to C.W.1 Mr.S.Ramamsamy, Deputy Superintendent of Police, CBI. P.W.7, another Inspector of Police CBI, Mr.Ponnalagan, would depose in the chief-examination that the complainant P.W.1-Mr.Athil in PVS lodge, after the arrival of the CBI Police and also the arrival of the DSP Remasamay at about 8.00 am on 17.12.1997, narrated the illegal demand mady by the accused for shifting the telephone connection and then he went out for some time and returned back with a written compliant, which was handed over to C.W.1 DSP Ramasamy. In the cross-examination (at page 53 of the typed set of paper) P.W.7 would admit that P.W.1 brought original compliant Ex.P.5 along with one carbon copy of the same and the original complaint under Ex.P.5 was despatched to Madras CBI office through one of the constables of CBI. It is not the case of P.W.1-complainant that the complaint was prepared in duplicate by him. ii)Yet another flaw of the prosecution which glares at the face of the prosecution is that the evidence of the Investigating Officer P.W.8 in his evidence in the cross-examination (at page 61 of the typed set of papers) would admit that the rough sketch was prepared after the trap and in the rough sketch crime number of the case has been mentioned. From the evidence of P.W.8 in this regard will cut at the root of the case of the prosecution because as per Ex.P.19-FIR the complaint was registered only at 9.30 pm on 17.12.1997. So it is not known under what mysterious circumstances under which crime number was mentioned in the rough sketch even before Ex.P.5 complaint was registered under Ex.P.19-FIR. iii)Further in this case the material objects which were seized on 17.12.1997 were sent to the Forensic Science Laboratory, Chennai, for chemical examination only on 2.7.1998 as seen from Ex.P.18. There is no explanation forthcoming from the prosecution for this inordinate delay in sending the material objects for chemical examination in this case. Even though there is a trap and seizure, the prosecution has not satisfactorily explained that only after the registration of Ex.P.5 under Ex.P.19 the investigation commenced. 15(e) I am of the view that an investigation before registering the FIR is bad in law. The learned Special Public Prosecutor would vehemently contend that once the complaint is received then it will set the law in motion and since it is a cognizable offence there is nothing wrong in the investigating officer to commence the investigation on the basis of Ex.P.5. But in this case I doubt the very existence of Ex.P.5 itself even before the commencement of the investigation. Under such circumstances, this Court has necessarily to interfere with the findings of the learned trial judge in C.C.NO.405 of 2000 on the file of the III Additional Sessions judge for CBI Cases, Coimbatore. Point is answered accordingly.
16. In the result, the appeal is allowed and the judgment in C.C.No.405 of 2000 on the file of the III Additional Sessions Judge for CBI Cases, Coimbatore, is set aside and the accused is acquitted from the charges levelled against him. The fine, if any paid by the accused, shall be refunded to him. Bail bonds shall stand cancelled. ssv
1.The III Additional District Judge,
(CBI Cases), Coimbatore.
2.The Principal District Judge,
3.The Special Public Prosecutor for CBI Cases,
4.The Inspector of Police,
Central Bureu of Investigation,
5.The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Shastri Bhavan (CBI), Chennai-6.
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