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Madras High Court says there is no ground to interfere in the judgment of the trial Court in convicting an accused.

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Title: V. Radhakrishnan. Vs.  The State.

Decided On: September 19, 2023.

Crl.A.No.627 of 2016.

Coram: Hon’ble Dr. Justice G. Jayachandran.

Facts:

The accused while serving as VAO of Kottathupatty Village, demand of illegal gratification of Rs.2000/- in two instalments of Rs.1000/- by the accused for name transfer in the Patta was lodged on 24.11.2003 at 9.30 a.m. After registration of the case, trap was laid. At about 15.15 hours the accused demanded and accepted Rs.1000/- from the defacto complainant. The said transaction was witnessed by the shadow witness Paramasivam.The phenolphthalein smeared currency of one 500 Rupees notes and five hundred rupees notes were recovered from the accused which was kept in the left outer shirt pocket. The trial Court framed charges under Section 7 and 13(2) r/w 13(1)(d) of P.C Act. The trial Court accepting the case of the defacto complainant regarding the demand and acceptance of Rs.1000/- as bribe by the accused on 24.11.2003, convicted and sentenced him to undergo 1 year R.I and to pay fine of Rs.5000/-, in default to undergo 6 months S.I for the offence under Section 7 of P.C Act and to undergo 2 years R.I and to pay fine of Rs.10,000/-, in default to undergo S.I for 6 months. This Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973, to set aside the order passed by the Special Judge, Special Court for trial under the Prevention of Corruption Act.

Legal Analysis and Decision:

It is a case of demand and acceptance of illegal gratification. The bribe amount of Rs.1,000/- smeared with the phenolphthalein and marked under the Entrustment Mahazar was recovered from the accused under Seizure Mahazar. The currency recovered from the accused tallied with the currency number found in the Entrustment Mahazar. In addition, the hands of the accused was tested with the Sodium Carbonate solution. The solution turned red indicates handling of phenolphthalein. The shirt pocket portion where the money was kept by the accused also subjected to the phenolphthalein test and proved positive. The trial Court has also found that there is no corroboration for the allegations of second demand on 22.11.2003. However, the third demand on the day of the trap and successful completion of the trap leads to the inference of the previous demand. The third demand and proof of third demand cannot be an inference for the earlier demand unless and until, it is proved beyond doubt. In this case the second demand on 22.11.2003 lacks corroboration, but it does not disproved the case of the prosecution in respect of the demand on 24.11.2003 and the receipt of the same by the accused. The defence taken by the accused that the money was planted in his shirt pocket is not probable, since not only his shirt pocket portion, but both of his hands were found positive for phenolphthalein. Unless and until the accused had received the money and counted it before keeping it in his pocket, it is impossible for both his hands to contact phenolphthalein. Neither PW.2 nor PW.3 had any animosity against this appellant to depose facts which is not true. Inspite of incise cross examination of these two witnesses, their credibility has not impeached. Therefore, the evidence of 2nd witness corroborated by the eye witness 3rd witness of the prosecution for demand and acceptance of Rs.1,000/- on 24.11.2003 during the trap besides scientific proof. Recovery of the tainted money from the possession of the accused prove the case of the prosecution to the core. The trial Court has rightly convicted the appellant. There is no ground to interfere in the judgment of the trial Court.

Conclusion:

The Court Concludes that this Criminal Appeal shall be dismissed and the trial Court conviction and sentence shall be confirmed. The trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The period of sentence already undergone by the accused shall be set off under Section 428 of Cr.P.C.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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The confiscation order be modified, instead of ordering forfeiture of all the property opines Madras High Court.

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TITLE: D. Balasankaralingam Vs. State by Inspector of Police, CBI.

Decided On: July 17, 2023.

Crl.A.No.3 of 2009 and Crl.MP.No.660 of 2022.

CORAM:  Hon’ble Mr. Justice G.Jayachandran.

Introduction:

Criminal Appeal has been filed under section 374 (2) of Criminal Procedure Code, against the judgment of the learned Additional Special Judge for CBI Cases, Chennai in CC.No.38 of 1999 dated 30.12.2008 convicting the Accused No.1/Appellant herein for the offence under Section 13(2) r/w 13(1)(d) of P.C.Act 1988 and sentencing him to undergo five years R.I and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo imprisonment for a period of one year and convicting Accused No.2/Appellant herein for the offence under Section 109 IPC r/w Section 13(2) r/w Section 13(1)(e) of P.C.Act 1988 and sentencing to undergo a period of 3 years and a fine of Rs.10,000/- in default to undergo imprisonment for a period of three months.

Facts:

The appellants Balasankaralingam and Jayalakshmi are husband and wife. The first appellant Balasankaralingam is a public servant who joined the Customs Department as Preventive Officer in the year 1977. While he was serving as Superintendent (Preventive) of Customs prosecuted for possession of assets disproportionate to the known source of income.His wife Jayalakshmi was prosecuted for abetting him to commit the said offence. The Criminal law was set into motion after the residential premises of the first appellant Balasankaralingam was searched on 19.02.1997. During the search, liquid cash of Rs.8,81,540/- was recovered from his residence. Search of two bank lockers operated in the name of his wife Jayalakshmi/ the second accused/second appellant led to further recovery of Rs.5,25,000/- and Rs.25,00,000/- respectively. The search also led to recovery of cash bills, invoices, share certificates, FD receipts, sale deeds, LIC Policies, UTI Units and other incriminating materials. The investigation had brought to light that Balasankaralingam who joined service on 08.12.1977 was terminated from service on 08.01.1980 pursuant to departmental enquiry. Later, he was reinstated in service as Preventive Officer on 15.12.1987 based on the orders passed by Central Administrative Tribunal. He was promoted as Superintendent with effect from 09.11.1994. He was not in service for substantial period of time and he had no other income other than his salary. While so, the investigation has unravelled, he and his family members were maintaining several bank accounts and lockers. He had invested in movables and immovables for which, the sources are unknown. Most of the properties were acquired after the accused got reinstated in service. Taking the period from 15.12.1987 to 20.02.1997 as check period, the prosecution has collected materials which prima facie satisfied that the accused has acquired assets value of Rs.1,10,50,128.22/- disproportionate to his known source of income. Final report filed with details of assets held at the beginning of the check period and assets acquired during the check period, the assets held at the end of check period. The trial court directed to confiscate the assets worth about Rs.1,05,74,000/- acquired. disproportionate to the known source of income. Aggrieved by the conviction and sentence, the appellants have preferred the criminal appeal under Section 374 of Cr.P.C before this Court.

Legal Analysis and Decision:

The value of the asset acquired by the accused in his name and his family members names is almost double the estimated savings from the known source of income. While so, except some minor error in assessment which has no bearing in the decision, this Court finds the trial court judgment has appreciated the law as well as the fact. For the contention of the learned Senior counsel for the appellants that the change in the law after 2018 though it is captioned as amendment it is only a substitution to the old provision of law under the Prevention of Corruption Act governing disproportionate of asset, this Court finds that even such liberal interpretation is given to the provision of law, it will not be of any use for the appellants herein. The law expects satisfactory explanation for the source of income, in this case, that is missing. The claim and attempt made by the appellants to project the explanations through their witnesses and documents in fact had exposed suppression of their income from other sources. After the search and recovery of huge currency, an attempt make believe story of prior sale agreements and suits for enforcement of the sale agreements been created. The trial Court has rightly held that these documents are ante dated. After close scrutiny one document namely the agreement with JKK Rangammal Charitable Trust where the accused has probalized that they have entered into an agreement and received sale consideration 12 lakhs for other transactions the view of the trial Court is confirmed. Therefore, the Court ever after, due credit for that receipt of Rs.12,00,000/- as income during the check period, find a vast difference between their known source of income and the value of assets which they have invested is very huge and the disproportionality is shocking event if it is estimated moderately. Therefore, this Court confirms the judgment of the trial court. Accordingly, the order of conviction passed in C.C.No.3 of 2009 is confirmed. The Criminal Appeal No.3 of 2009 is dismissed. Taking note of the age of the appellants, this Court grants 30 days time for them to surrender, failing which, the respondent police shall secure them and commit to prison to undergo the remaining period of sentence.

Conclusion:

Taking note of the fact that, out of 12 properties listed for confiscation three have locked in litigation and third party right has come into force due to court intervention and therefore, this Court is of the opinion the confiscation order be modified, instead of ordering forfeiture of all the property. As far as the order of confiscation, the same is modified to the effect that in lieu of forfeiture, the appellants jointly and severally shall pay a sum of Rs.25,00,000/- which shall be around 50% of the value assessed as disproportionate to the known source of income.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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The collection of flag day contribution is not a perennial affair in a Government Office Says Madras High Court.

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TITLE: K. Adikesavan Vs. The Inspector of Police.

Decided On-: July 12, 2023

422 & 439 of 2015 Crl.A.No.422 of 2015

CORAM: Hon’ble Justice G. Jayachandran.

Introduction:

Criminal Appeal has been filed under Section 374 of Cr.P.C., pleased to set aside the sentence and conviction imposed on the appellant in Special Case No.5 of 2010 dated 29.06.2015 passed by the Special Judge/Chief Judge, Judicial Magistrate, Cuddalore and acquit the appellant the orders passed.

Facts:

Ramasamy a retired Secondary Grade Teacher in the Government School died on 04/10/2008. His wife Selvambal as widow of a Government pensioner was entitled to get family pension as well as other benefits. She sought the help of her brother Mr.Selvarayar, who during the month of December 2008 went to Sub Treasury Office at Virudhachalam and enquired about the procedures to get family pension of his sister. Adikesavan, the Accountant in the Sub-Registrar Office assisted him to fill the forms meant for family pension and directed him to get the attestation and reference in the application Form from the Assistant Primary Education Officer. He presented the form to the Sub-Treasury Officer on 02.01.2009, after getting the attestation. The Sub Treasury Officer, who received the application form put his initial in it and instructed to meet Adikesavan after a week. A week thereafter, when Selvarayar met Adikesavan, he instructed to open a bank account in the name of Selvambal and to produce a photocopy of the bank passbook. On 06/03/2009 he met Adikesavan and gave a copy of the Bank passbook, further Adikesavan asked photo of the applicant and Selvarayar give his sisters photo which he had with him. Selvarayar asked Adikesavan that
already two months have gone, when the application process will be completed. At that time, Adikesavan said that, if he give money for office expenses, the work will get done. When Selvarayar asked how much money has to be paid, Adikesavan replied Rs.1,500/-. When, Selvarayar sought clarification whether that money is for Government or for him, Adikesavan replied that, it is for him and other staff in the Office. Further, Adikesavan told to bring money on 12/03/2009 at 10.00 a.m. Selvarayar not interested to give bribe, so he went to Cuddalore and gave a complaint at Vigilance and Anti-Corruption.

Legal Analysis and Decision:

Being aggrieved, the 1st accused/Adikesavan has preferred Criminal Appeal No.422 of 2015 and the 2nd accused/Balasubramanian filed Criminal Appeal No.439 of 2015. Pending appeal, on 12/01/2023 Balasubramanian-the appellant in C.A.No.439 of 2015 died. His wife Anbarasi filed a petition to get herself impleaded in the place of her deceased husband Crl.A.Nos.422 & 439 of 2015 and pursue the appeal. Her application Crl.M.P.No.8073 of 2023 was allowed by this Court on 14/06/2023.

No doubt, the sanction to prosecute is not an empty formality, it should be accorded only after proper application of mind and scrutiny of all the documents collected during the investigation. In this case, Ex.P.24 is the Sanction Order, there is no detail of connected records placed before her is mentioned in the sanction order, the application of mind and satisfaction of the sanctioning authority is doubted. The sanction order which runs to four pages contains the detail necessary to arrive at a subjective satisfaction. The details found in the sanction order should have emanated from the records placed before the authority. The accused cannot take umbrage of four months old communication send by the District Collector to collect flag day contribution. The collection of flag day contribution is not a perennial affair in a Government Office. It cannot be a shield for bribe takers. For the above said reason, this Court confirms the judgment of the trial Court passed in Special Case No.5 of 2010 as against A1/K.Adikesavan. Accordingly, the Criminal Appeal No.422 of 2015 is dismissed. The trial Court is directed to secure the appellant/A1 and commit him to the prison to undergo the remaining period of sentence. The period of imprisonment already undergone by the accused shall be set off under Section 428 of Cr.P. Accordingly, the Criminal Appeal No.439 of 2015 filed by the A2/Balasubramanian and his legal heirs is allowed. The judgment of the trial Court passed in Special Case No.5 of 2010 as against Balasubramanian is hereby set aside.

Conclusion:

This Court confirms the judgment of the trial Court passed in Special Case No.5 of 2010 as against A1/K.Adikesavan. Accordingly, the Criminal Appeal No.422 of 2015 is dismissed. The trial Court is directed to secure the appellant/A1 and commit him to the prison to undergo the remaining period of sentence. The period of imprisonment already undergone by the accused shall be set off under Section 428 of Cr.P.C.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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