(Prayer: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure and Section 27 of the Prevention of Corruption Act, 1988, against the Judgment dated 26.03.2008 passed in C.C.No.9 of 2005 by the learned Special Judge for CBI Cases, Madurai.)
1. The Judgment of conviction and sentence dated 26.03.2008 passed in C.C.No.9 of 2005 by the learned Special Judge for CBI Cases, Madurai is being challenged in the present Criminal Appeal.
2. The appellant was Sub-Inspector of Police, Delhi Police and was posted at Indira Gandhi International Airport Police Station [hereinafter referred to as 'IGI Airport Police Station'], New Delhi, during February, 2005. On 19.02.2005, one Manthakaruppan, a resident of Kattakudi Post, Melur, Madurai was found to have a fake Malaysian Visa Sticker in his passport and therefore, while he attempted to board plight to Doha, Qatar through Delhi Airport, he was intercepted and a case was registered against him for the offences under Sections 420, 468, 471 IPC and Section 12 of Passport Act in Crime No.115 of 2005 on the file of IGI Airport Police Station, New Delhi.
3. The said Manthakaruppan was interrogated and his statement was recorded on 20.02.2005. From his statement, the appellant came to know that one Muthu of Melur had arranged the fake Malaysian Visa Sticker to Manthakaruppan in the year 2000.
4. In order to investigate further, he took custody of Manthakaruppan from the Magistrate concerned and came down to Madurai. His investigation revealed that the said Muthu is an agent of one Manoharan, Manpower Agent operating at Melur. So, he along with Sibin T.Mathai (A.2) Police Constable went to the office of Manoharan and questioned him. With the help of Melur police, they also went in search of Muthu at his native place and the parental village of his wife.
5. It is the case of the prosecution that in the course of the investigation in connection with the fake Malaysian Visa Sticker found in the passport of Manthakaruppan, the appellant herein
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pressurised Manoharan to pay Rs.2,00,000/- for not to array him as an accused in Crime No.115 of 2006 registered under the Passport Act and other IPC offences by the Delhi Police. On 25.02.2005, the appellant reduced his bribe amount to Rs.1,00,000/- and later to Rs.50,000/- and insisted Manoharan to pay the money by evening of 25.02.2005.
6. Not willing to bribe, Manoharan gave the complaint to CBI. Pursuant the complaint, trap was laid. Manoharan along with one Selvam and the shadow witness met the accused at Rani Mangammal Chathram, opposite to Railway Station, Madurai on 25.02.2005 at about 20.20 hours. The appellant demanded and received Rs.50,000/- from Manoharan. Since the money was smeared with phenolphthalein, when it was recovered by the trap team, the hands of the appellant was found positive to phenolphthalein, when his hands were dipped in sodium carbonate solution.
7. In this background, the prosecution has laid the final report against Mandeep Singh (appellant), Sub-Inspector of Police and Sibin T.Mathai, Police Constable for the offence under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as P.C. Act']'.
8. To prove the charges, the prosecution has examined 13 witnesses and marked 44 exhibits and 6 material objects. In support of the accused, 6 witnesses have been examined and 11 exhibits were marked.
9. The Trial Court on considering the evidence has found A.1 guilty of both the charges and sentenced him to undergo 2 years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo 6 months rigorous imprisonment for the offence under Section 7 of P.C. Act and also sentenced him to undergo 2 years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo 6 months rigorous imprisonment for the offence under Section 13(2) read with 13(1)(d) of P.C. Act. A.2 was found not guilty and he was acquitted of all charges. Aggrieved by the conviction and sentence, the present appeal is preferred by A.1. State has not filed any appeal against the order of acquittal of A.2. 10.Before adverting the merits canvassed in this appeal, the case of the prosecution as spoken by its witnesses is stated below:
(i) K.Manoharan (de facto complainant) was examined as P.W.1. His complaint is Ex.P.2. Based on the complaint, Mr.Roy Alexander (P.W.10), DSP/CBI/ACB, Chennai has registered the complaint and after conducting discrete enquiry proceeded with the trap operation.
(ii) According to the evidence of P.W.1, he was running a firm in the name and style of M/s.Indira Agency at Meenakshi Complex, Melur, Madurai District. It is a manpower agency. Selvam (P.W.4) is the cousin brother of Manoharan (P.W.1), who assists him in the business. He used to recruit persons through sub-agents at Sivagangai, Ramanathapuram, Trichy and Tirunelveli and nearby places and sent them abroad. Manthakaruppan (P.W.6) was referred by one of his agents Rathinam and another person Arul Jegannathan was referred by his agent Kalimuthu. Through one K.V.Nair of R.S. Consultants, New Delhi, he arranged both of them to go to Qatar. Apart from these two persons, for twenty others, employment was arranged and with proper Visa, they all were supposed to leave Delhi on 19.02.2005.
(iii) While so, on 19.02.2005, at about 10.00 a.m., he received a call from Nair, New Delhi, who informed him that two persons were detained in IGI Airport, New Delhi, since their passports found to be tampered and the endorsements found in the passports regarding the previous visit to Malaysia, has been manipulated. Within few minutes, he also received phone call from Mandeep Singh (A.1), who informed him that two persons (Manthakaurppan and Arul Jegannathan) have problem regarding the endorsements in their passports about their previous trip to Malaysia. When he informed the accused that he do not know about their Malaysia trip and he did not arrange their Malaysian Visa, A.1 threatened P.W.1 that he will implicate him in the case. Later he came to know that Manthakaruppan and Mandeep Singh and others were proceeding towards Madurai by train from Delhi. On 24.02.2005, at about 02.00 p.m., Mandeep Singh (A.1) and Sibin T.Mathai (A.2) along with Manthakaruppan (P.W.6) and father of Muthu came to his office and enquired him about the Malaysian Visa issued to Manthakaruppan.
(iv) On that day, Mandeep Singh (A.1) demanded bribe of Rs.2,00,000/- for not implicating him in the case. When he said that he cannot give money, since he is innocent and had not committed any fault, A.1 filled up arrest memo and asked to sign him and told that unless he gives bribe money, he will be arrested and taken to Delhi. P.W.1 has identified the arrest memo where P.W.4 and Mandeep Singh (A.1) along with Sibin T.Mathai (A.2) have affixed their signatures. The arrest memo is marked as Ex.P.1. He was taken to Madurai Railway Station Retiring Room by the accused and left with instruction that he should come with bribe money of atleast Rs.1,00,000/- on the next day.
(v) On 25.02.2005 at about 10.00 a.m., both Mandeep Singh (A.1) and Sibin T.Mathai (A.2) came to his office and informed him that they are staying at Room No.13, Rani Mangammal Chathram, opposite to Railway Station, Madurai and money should be brought by evening. While leaving the office, they reduced the bribe demand from Rs.1,00,000/- to Rs.50,000/-. Since he had no intention to give bribe, he has contacted the CBI office at Chennai and as per their instruction he met Roy Alexander (P.W.10) and gave the complaint (Ex.P.2).
(vi) P.W.1 has further deposed about the pre-trap proceedings and preparation of entrustment mahazar in the presence of independent witnesses Balakrishnan, Manager, Indian Bank and Ganesan, Officer, Canara Bank. The entrustment mahazar is identified by him as Ex.P.3. He and Selvam (P.W.4) had gone to Room No.13,Rani Mangammal Chathram and as per the instruction of the trap laying officer, met Mandeep Singh (A.1), he switched on the micro cassette recorder given to him to record the conversation. In the room, Manthakaruppan (P.W.6) was also present. After ensuring that P.W.1 has brought bribe money, A.1 came out from the room to the verandah and received the money in his right hand and put it in his right side pant pocket. P.W.4 gave the pre-arranged signal to the trap team, which took position outside the room and waiting for the signal. The trap team went to the room and after introducing themselves, the accused was asked to dip his hands in sodium carbonate solution. The colour of the solution turned into pink. The tainted money was recovered from the accused. The number found in the currency tallied with the number recorded in the entrustment mahazar. The digital recorder cassette was played, the voice of the accused and others were checked and cassette was put in a cover and sealed.
(vii) A.1 admitted receiving the tainted money, whereas A.2 feigns ignorance about the demand and receipt of money by A.1. The bribe money and other incriminating materials were seized under mahazar and the mahazar is identified by P.W.1 as Ex.P.4. Selvam (P.W.4) who accompanied P.W.1 and N.Ganesh (P.W.5), the shadow witness have corroborated the deposition of P.W.1 in respect of demand, receipt and recovery of tainted money.
(viii) Manthakaruppan (P.W.6), who was detained at IGI Airport, New Delhi, for possessing passport with tampered Malaysian Visa had testified about his detention at the Airport and arrested by the Delhi local police and pursuant to the custody given to the police, his visit to Madurai escorted by A.1 and A.2. He has further deposed that he was taken to his native place and since Muthu was not available, they came back to Melur, enquiring with Manoharan (de facto complainant), the visit of CBI at 08.00 p.m. along with Manoharan and Selvam to Rani Mangammal Chathram.
(ix) The stay of the accused initially at Railway Retiring Room, Madurai Junction and later at Rani Mangammal Chathram on 25.02.2005 is spoken by the Matron, Railway Retiring Room, Madurai Junction, Mrs.Muthulakshmi (D.W.5) and Karuppiah (P.W.3) Record Clerk at Rani Mangammal Chathram, Madurai.
11. The Trial Court on appreciation of the witnesses for prosecution as well as the defence witnesses, who have spoken about the events which tookplace at IGI Airport, New Delhi on 19.02.2005 and the events which tookplace at Melur Police Station on 24.02.2005 and 25.02.2005 had concluded that the prosecution has proved the factum of illegal demand of Rs.2,00,000/- on 24.02.2005 at the office of the de facto complainant. A.2 was not present and he was waiting outside the office. The prosecution has further proved that on 25.02.2005 at Rani Mangammal Chathram, A.1 has received Rs.50,000/- from the de facto complainant. Arrest warrant (Ex.P.1) prepared by the accused proved that the accused has prepared arrest memo and waiting for bribe money. The recovery of the bribe money also established through the witnesses and the conversation recorded in the cassette and transcription would prove the guilt of the accused.
12. The learned senior counsel appearing for the appellant/A.1 would point out that P.W.1 had deposed that he came to know about the detention of Manthakaruppan (P.W.6) at IGI Airport, New Delhi on 19.02.2005 at about 10.00 a.m. through one Nair. The prosecution has not examined Nair. Further Manthakaruppan (P.W.6) was intercepted at IGI Airport, New Delhi only late evening of 19.02.2005. Therefore, the evidence of P.W.1 that on 19.02.2005, the appellant called him over phone from Delhi at about 10.00 a.m., could not be true.
13. The learned senior counsel appearing for the appellant/A.1 would further submit that the Inspector of Police (D.W.6), Melur Police Station, in his deposition has stated that the accused met him at the police station on 25.02.2005 at 10 O' clock and sought assistance to trace Muthu. This evidence is also corroborated by the evidence of Mr.A.Jaipaul (P.W.4). Therefore, the case of the prosecution that on 25.02.2005, the appellant along with A.2 went to the office of Manoharan and demanded bribe, gets falsified.
14. The learned senior counsel appearing for the appellant/A.1 would also point out that though the trap laying officer has took the assistance of two witnesses, they were not asked to be present when P.W.1 and P.W.4 went to Rani Mangammal Chathram to meet the accused. The transcription of the conversation found in the cassette has not been proved in the manner known to law. Unusually both P.W.1 and P.W.4 have signed the complaint, which causes doubt in the case of the prosecution.
15. Both Selvam as Manager of Indira Agency and Manoharan, Proprietor of the said manpower agency are suspects in Crime No.115 of 2005 registered by IGI Airport Police Station, New Delhi. Whereas they have acted as decoy witnesses in this case to trap the investigation officer, who has come all along from Delhi along with the accused with the permission of the Court to trace one Muthu, who is the sub agent of Manoharan.
16. The manner in which the prosecution has acted, without proper enquiry before registering the case against the appellant could be clearly seen from the evidence of Jaipaul (D.W.4), Head Constable and Inspector of Police (D.W.6), Melur, who have deposed that the appellant and Sibin T.Mathai, Head Constable were in search of Muthu and come to the Melur Police Station seeking assistance. In the course of the investigation, they have enquired Manoharan and found him also guilty. Hence, he was asked to come to Rani Mangammal Chathram on 25.02.2005. The accused has already booked ticket to go back to Delhi on that day. He has made all arrangements to arrest Manoharan. But, without proper enquiry, CBI has proceeded with the false complaint given by Manoharan and has not only prevented the arrest of Manoharan, but also aborted their attempt to trace Muthu.
17. It is also pointed out by the learned senior counsel appearing for the appellant/A.1 that during interrogation P.W.1 assured the appellant that he will bring his agent Kalimuthu to Rani Mangammal Chathram. On the date of trap, he actually brought Kalimuthu to Rani Mangammal Chathram. The accused while preparing the arrest memo of Kalimuthu as well as P.W.1. Under the guise of producing the suspect accused Muthu @ Kalimuthu, P.W.1 cleverly trapped the accused in order to prevent from proceeding against him and his agent.
18. It is also contended by the learned senior counsel appearing for the appellant/A.1 that the documents alleged to have been seized were only from Room No.9 booked by A.2 and not from Room No.13.
19. Therefore, pointing out the lacuna in the prosecution case, the learned senior counsel appearing for the appellant/A.1 would submit that merely based on the recovery of tainted money, ignoring all other infirmity in the prosecution case, the Trial Court has convicted the appellant/A.1, which is contrary to the well established law and in support of his submission, the learned senior counsel would rely upon the observation made by the Hon'ble Supreme Court in Raghbir Singh v. State of Punjab reported in (1976)1 SCC 145, which runs as under:
'11. ... ... ... We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant. ... ... ...'
20. On a careful perusal of the submissions made by the learned senior counsel appearing for the appellant/A.1 and the evidence placed by the prosecution, this Court though could see some lacuna in the prosecution case, does not find it sufficient to disbelieve the case of the prosecution and extend the benefit of doubt to the appellant/A.1.
21. The fact that the appellant along with his Head Constable came to Madurai in connection with passport case, where Manthakaruppan (P.W.6) was arrayed as an accused is an undisputed fact. Muthu @ Kalimuthu was the person, who arranged the Visa for P.W.6, so accused was supposed to apprehend Muthu and that was the purpose of his visit to Melur from Delhi. The evidence relied by the accused himself, he has gone to Melur police Station and sought the assistance of the local police. D.W.4 and D.W.6 had rendered assistance to him. The policemen of Melur have accompanied the appellant/A.1 and A.2, while they went in search of Muthu. Manthakaruppan (P.W.6) had clearly deposed about this fact, which corroborates D.W.4 and D.W.6.
22. The visit of the accused to the office of Manoharan (P.W.1) and the visit of Manoharan along with Selvam to the stay place of accused has also not been disputed and proved through oral evidence as well as documentary evidence. The document which stares over at eyes of is the arrest memo, marked as Ex.P.1. It is prepared by the appellant. A perusal of the arrest memo (Ex.P.1), indicates that Manoharan (P.W.1) has been arrested in connection with Crime No.115 of 2005 on the file of IGI Airport Police Station, New Delhi for offences under Sections 420, 468, 471 IPC and Section 12 of Passport Act. In the column meant for date and time, it is shown as 24.02.2005 and time not mentioned. In column No.7, the name of Selvam (P.W.4) is mentioned as person to whom, the information of arrest conveyed. Manoharan (P.W.1) has also signed in the arrest memo.
23. P.W.1's case is that the accused spoke to him over phone on 19.02.2005 and thereafter, came in person to his office on 24.02.2005, enquired about the manipulation in the passport of Manthakaruppan (P.W.6) and demanded money. The accused prepared the arrest memo on 24.02.2005 and threatened to take to Delhi, if no bribe given. Thereafter, left him without detaining in order to bring money and also assured him that if he bribes, he will be let off or else he will be arrested and taken to Delhi. The appellant who had initially checked in at Railway Station Retiring Room, Madurai Junction, has re-shifted to Rani Mangammal Chathram on the day of trap, which fact is spoken through P.W.3.
24. It is the case of the appellant that on 25.02.2005, he visited Melur Police Station. This fact has also been supported by D.W.4 and D.W.6. If the appellant had arrested Manoharan as per Ex.P.1, he should have either produced him before the nearest Magistrate or atleast handed over Manoharan to Melur Police Station for lock-up custody. But, he has done neither of these and allowed Manoharan to move freely, who has come with the trap team on 25.02.2005 at about 08.00 p.m.
25. It is pointed out by the learned counsel appearing for the appellant/A.1 that the transcription of the conversation was made by Ganesh according to the investigation officer, whereas Ganesh has deposed that he does not know Hindi. Even if the entire transcription is ignored, the fact that the appellant has prepared arrest warrant of P.W.1 on 24.02.2005, but had not arrested him and P.W.1 has lodged the complaint (Ex.P.2) on 25.02.2005 to CBI, alleging thereat to arrest all put together clearly points the guilt of the appellant.
26. The accused has prepared Ex.P.1 only to extract money from P.W.1. Though he has obtained the signature of the appellant in the arrest memo, in which A.2 has also signed as witness besides P.W.4, to whom information was given, in reality the appellant has not detained P.W.1 and kept him under his custody. Obviously, it is only to extract money, he has prepared the arrest memo (Ex.P.1) and not for any other purpose.
27. Therefore, this Court finds no reason to interfere with the finding of the Trial Court for convicting the appellant under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act and accordingly, this criminal appeal is liable to be dismissed.
28. In the result, this Criminal Appeal is dismissed and the Judgment of conviction and sentence dated 26.03.2008 passed in C.C.No.9 of 2005 by the learned Special Judge for CBI Cases, Madurai is confirmed. The Trial Court is directed to secure the appellant and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by the appellant/accused shall stand cancelled.