25. DISCUSSION:-
RECOVERY OF TAINTED CURRENCY IS NOT A PRESUMPTION FOR RECEIPT OF BRIBE MONEY
It is now well settled that, the recovery of tainted currency is not a presumption for receipt of bribe money. The fundamental fact is that the money so recovered was demanded as illegal gratification and received as illegal gratification. In this case, the demand of illegal gratification is spoken only by PW-2 and he cannot be a reliable witness, since PW-9 tenant under him had deposed about the attempt of the defacto complainant (PW-2) to get service connection under lesser tariff as domestic user. Though this witness was treated as hostile by prosecution, his evidence cannot be brushed aside, since out of seven applications forms given by PW-2, many of the application forms it has written as tariff IA and then, corrected as tariff V, it means that an attempt made by him to get the domestic service, later found that the service meant for shops and so tariff V was fixed and collected.
RECOVERY OF TAINTED MONEY FROM THE TABLE AND NOT CONCEALED
26. Regarding recovery of tainted money, the mahazar Ex.P36 states that after conducting phenolphthalein-sodium carbonate test on the hands of the accused, PW-12 has asked, where the bribe money kept then, A1 has shown the money on the his table. The trap laying officer has recovered it and found the electricity service connection application fee Rs.5000/- separately and next to it, Rs.3,000/- separately. PW-2 in his testimony has said that A1 demanded money and received it along with the application, he counted the money and gave it to A2. A2 counted the money and kept the money and the application on the table. The shadow witness (PW-5) in the chief examination has corroborated the version of PW-2. When he was cross examined on 20.08.2015, after nearly four years of the chief examination, he had deposed that when PW-2 gave the application, A1 refused to receive it without advice of the Junior Engineer. Thereafter, PW-2 compelled to receive it and gave connection on the same day saying that it was an auspicious day. However, since Mr.Karthiresan (PW-11) pointed out the procedure that without the advice of the Junior Engineer, the application cannot be received. A1 refused to receive the application. However, PW-2 left the application along with the money of Rs.8000/- together on the table and came out. This witness was treated as ‘hostile’ for the purpose of not corroborating the prosecution case. PW-12, trap laying officer also states that the tainted currency was recovered from the table of A1 identifying it as the money received from PW-2. Therefore, the case of the prosecution consistently is that the tainted money was recovered from the table of A1 and it was recovered after conducting phenolphthalein test on the hands of the accused persons, the money was laying on the table openly but not concealed. In this context, it is relevant to read the testimony of PW-11, who had been in the office at the relevant point of time, saw PW-2 insisting A1 to receive his application and refusal of A1 to receive it, without advice of the Junior Engineer. PW-11 has deposed that thereafter, PW-2 left the application and money on the table and went away on the pretest of having tea outside. Thus, there is sufficient evidence to infer that the application form and the tainted money were kept together and handled by PW-2 as well as the accused A1 and A2. The money was not found in the possession of A1 or A2 but on the table.
PRESUMPTION U/S 20 OF P.C ACT CAN BE DRAWN ONLY IF THE FUNDAMENTAL FACTS ARE PRESUMED
27. Accordingly to PW-12, trap laying officer, he saw the currency on the table in two lots, one lot of Rs.5000/- and another lot of Rs.3000/-, after only A1 identified it. It is not the case of the prosecution that these monies were concealed somewhere but kept openly on the table. It is highly impossible for the trap laying officer to miss the money laying on the table, when he entered into the office of the accused. In this regard, the contradictory version given by the shadow witness. The consistent evidence given by PW-11, who was present at the time of trap, supposed, the probability projected by the accused persons, they were treated hostile by the prosecution, the only incriminating evidence now against the appellants is the presence of phenolphthalein in their hands, which has been proved through the scientific evidence. Since this is the case where the money of Rs.3000/- smeared with phenolphthalein, Rs.5000/- without phenolphthalein and the application were handled together by PW-2 and all were found together on the table of A1. The possibility of conducting phenolphthalein powder while pursuing the application is probable and mere presence of phenolphthalein in their hands of the accused persons per se will not lead to infer the presumption that the money alleged to have been laying on the table was the money obtained by the accused persons on demand as bribe. The ingredient of Section 7 as well as Section 13(1)(d) of PC Act, regarding the demand and acceptable requires proof satisfying the fundamental fact. Presumption under Section 20 can be drawn, only if the fundamental facts are presumed.
P.W-2 TURNED HOSTILE IN CROSS-EXAMINATION
30. As far as the evidence available, except PW-2 no other witness corroborated the demand and acceptance. What PW-5 was said in the chief examination has been contradictory in the cross examination. Further, in the cross examination, he had turned ‘hostile’. Hence, the prosecution has found him as an unreliable and declared him as hostile. The remaining witness regarding the money found on the table is PW-11 who was spoken about the version between PW-2 and the accused (A1). While the accused case is that they refused to receive the application and the money without the advice of the Junior Engineer, the said contention appears to be more probable, in view of the evidence given by PW-3. The Junior Engineer, who in charge of the V.Agaram office and came to the office at 4.00 p.m. After being informed about the raid by the DV and AC and the two applications of the PW-2 was received by him thereafter.
PRESENCE OF PHENOLPHTHALEIN IN THE ACCUSED HANDS FOR SEVERAL REASONS
32. In this case, none of the three consequences, after PW-2 left the room has happened, which indicates that this application and the money should have been planted by PW-2 and before A1 and A2 could react upon it, the trap team has entered the office and has suspected A1 and A2 for demand and receipt of illegal gratification. The only evidence incriminating that is the presence of phenolphthalein in their hands and there could be several reasons for the presence of phenolphthalein in their hands.
33. In view of the above facts and circumstances of the case, this Court finds that the presumption under Section 20 cannot be drawn against the appellants, since the foundational fact has not been proved by the prosecution, since the shadow witness PW-5 and the chance witness (PW-11) have turned hostile to the prosecution and probabilities the defence theory that PW-2 planted the tainted money on the table of A1.
Accused acquitted.
PARTY: Mr.K. Gopalan @ Gopal vs The State Rep by its Inspector of Police, Vigilance and Anti Corruption Cuddalore, Crime No.10/2002 – Crl.A.No.731 of 2015 – Pronounced on:31/03/2023 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1030851
