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G. Sivabalan Versus State rep. by The Inspector of Police, CBI/ACB/Chennai

2016 (3) TMI 1000 - MADRAS HIGH COURT

Charge of corruption against the Superintendent of Central Excise, Service Tax Cell, Chennai, Commissionerate - Alleged demand as well as acceptance of tainted money on the part of the appellant/accused - Found guilty under Section 7 and Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 - Held that:- by way of examining the defacto complainant viz., PW2 the prosecution has clearly proved the demand of bribe alleged to have been made by the accused as well as acceptance of the .....

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e piece of evidence in the present case, since in the present case, both demand as well as acceptance of tainted money on the part of the accused have been clearly proved by the prosecution. Therefore, the contentions put forth on the side of the appellant/accused cannot be a basis for disbelieving the case of the prosecution.

Defacto complainant has given picturesque evidence to the effect that the appellant/accused has demanded and accepted tainted money of ₹ 25,000/- and sinc .....

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inst the appellant - Crl.A.No.554 of 2009 - Dated:- 11-2-2016 - A. Selvam, J. For the Appellant : Mr. A. Ramesh, Senior Counsel For the Respondent : Mr. K. Srinivasan Special Public Prosecutor for CBI cases JUDGMENT This Criminal Appeal has been directed against the convictions and sentences dated 26th August, 2009 passed in Calendar Case No.6 of 2005 by the Special Court for CBI Cases/IX Additional Sessions Judge, Chennai. 2. The contraction of the case of the prosecution is that during the rel .....

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his office. The accused has directed him to produce all bills and receipts relating to service tax paid within two or three days from 11.05.2004. The said company has prepared details and personally handed over the same to the accused. The accused has insisted the defacto complainant to meet him personally. On 13.08.2004, the accused has contacted the defacto complainant over phone and thereby directed to meet him in his office and accordingly, the defacto complainant has met the accused on the .....

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coy witness have met the accused in his office and handed over a white cover which contained tainted money to him and subsequently the accused has been caught red-handed and thereafter, all necessary tests have been conducted in the presence of the accused and tainted money and other Material Objects have been recovered. The Investigating Officer has examined connected witnesses and after completing investigation has laid a final report on the file of the trial Court and the same has been taken .....

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estioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. On the side of the accused, Exs.D1 to D6 have been marked. 6. The trial Court after hearing arguments of both sides and also after perpending the available evidence on record has found the accused guilty under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo three years rigorous impriso .....

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cution is that during the relevant period, the accused has served as Superintendent of Central Excise, Service Tax Cell, Chennai, Commissionerate. The defacto complainant viz., Vasudevan and his wife are the Directors of the company viz., M/s.Jayadasa Engineering and Exports Pvt. Ltd., and the said company has used to pay service tax and accordingly for the period started from October 2003 to March 2004, it has paid a sum of ₹ 24,445/- as service tax. One Gunasekaran, an employee of the sa .....

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complainant is not interested to give bribe, a complaint has been lodged to the Investigating Officer and subsequently pre-trap proceedings have been conducted and thereafter, the defacto complainant and a decoy witness have met the accused in his office. The accused has demanded bribe from the defacto complainant and after his demand, a white cover which contained tainted money has been handed over to him and after receipt of the same, the accused has kept it in his right pant pocket and there .....

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P3. The decoy witness by name Ramasubramaniam has been examined as PW3. The Inspector, trap laying officer has been examined as PW4. The Scientific Officer has been examined as PW6. The Investigating Officer has been examined as PW8. The trial Court after considering their evidence coupled with connected documents, has found the accused guilty under the sections mentioned in the charge and sentenced him to undergo imprisonment as mentioned in the Judgment. 9. The learned Senior Counsel appearing .....

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plainant, decoy witness and trap laying officer is that the said cover has been utilised for keeping tainted money and the said cover has been handed over to the accused. But the prosecution has failed to mark the same, nor the same has been subjected to Sodium Carbonate and phenolphthalein test. Under the said circumstances, the alleged demand of bribe as well as acceptance of the same by the accused have not been proved on the side of the prosecution and the trial Court has failed to look into .....

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t forth on the side of the appellant/accused, the following decisions are relied upon: (a) CDJ 2010 MHC 7026 (Moorthy Vs. State rep. by Additional Superintendent of Police, ACB/CBI/Chennai), wherein this Court has held that a digital recorder has been played in the presence of witnesses and found that conversation is not audible. The wrapper containing seal and signatures of the witnesses used for keeping the digital recorded is Ex.P17. Further, it is observed that having submitted the same to t .....

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PW5 and PW6, it is significant to note here that the appellant/first accused has not even handled the currency notes. This fact has also been admitted by PW7 stating that the accused had not handled the money on that day. But, he had received the cover containing money on that day. It is also significant to note here that during the time of the demonstration of sodium carbonate and phenolphthalein test, prior to coming to the trap spot, phenolphthalein power was smeared on the currency notes an .....

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e decisions referred to earlier, it is made clear that in a case like this, the demand as well as acceptance of tainted money should be proved by the prosecution even without a speck of doubt. 12. In order to sustain the convictions and sentences passed by the trial Court, the learned Special Public Prosecutor has contended with great vehemence that in the instant case, demand as well as acceptance of tainted money by the appellant/accused have been clearly established by way of examining the de .....

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ase, the alleged demand as well as acceptance of tainted money on the part of the appellant/accused have been clearly established on the side of the prosecution. 14. The defacto complainant viz., Vasudevan has been examined as PW2 and his specific evidence is that he and his wife are the Directors of the company by name M/s.Jayadasa Engineering and Exports Pvt.Ltd., and the same is situate at A-32, Sivakami Plots, No.2, 3 Sivakamipuram, 1st Cross St., Chennai. The said Company has been doing bus .....

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accused has discussed about service tax and he explained that the tax already paid is erroneous. The accused has also directed to give split up bills separately for materials and labour. On 13th August 2004, the accused has called him again over phone and demanded a bribe amount of ₹ 25,000/- and also directed him to bring that amount on 23rd August 2004. Further the accused has told him that if the said amount is not paid, he would issue notice. Further he deposed in his evidence that he .....

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anara Bank. The said Inspector has made a pre-trap proceedings and subsequently tainted money of ₹ 25,000/- has been put into a white cover and as per direction given by the Inspector of Police, he and the said Ramasubramaniam have gone to office of the accused at about 03.40 pm and met the accused. The accused has asked about Ramasubramaniam and he told that he has come there in relation to insurance related service tax matters. The accused has directed him to meet another person, adjacen .....

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ether he has received bribe and after making proper identification, the Inspector has conducted Sodium Carbonate test. The accused has been asked to tip his right finger in the sodium carbonate solution and the same has turned pink colour. The accused has handed over tainted money to the Inspector and again the Inspector has conducted similar test. 15. The decoy witness by name Ramasubramaniam and trap laying officer have been examined as PW3 and PW4 and in fact, they deposed evidence as deposed .....

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from the defacto complainant and accordingly the defacto complainant has given the same to the accused and accused has accepted the same. 17. Apart from the evidence given by PWs.2 to 4, one Banumathy, Scientific Officer has been examined as PW6 and her specific evidence is that in connection with the present case, four items of Material Objects have been received and all items have been analysed under the supervision of Assistant Director and both phenolphthalein and sodium carbonate are deduct .....

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PW2 has handed over the same to the accused and the said cover has also been subjected to necessary test. But for the reason best known to the prosecution, the same has not been marked as one of the material objects. 19. As rightly pointed out on the side of the prosecution, PWs.2 to 4 have clearly stated in their evidence that the tainted money of ₹ 25,000/- have been put in a white cover. The specific evidence given by PW2 is that after demand made by the accused, he handed over the sam .....

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the side of the appellant/accused also, necessary evidence is available on the side of the prosecution and the said micro chip has been marked as M.O.2. But as rightly pointed out on the side of the appellant/accused, the said micro chip has not been displayed by the trial Court at the time of trial. 22. The learned Senior Counsel appearing for the appellant/accused has advanced his entire argument only on the basis of the grounds mentioned supra. As pointed out earlier, the concerned white cove .....

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s that the concerned accused should have demanded bribe amount and the second aspect is that on the basis of his demand, tainted money should be given to him and the concerned accused should have accepted the same. To put it in short, both the demand as well as acceptance are the essential features of Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 25. In the present case, by way of examining the defacto complainant viz., PW2 the prosecution has clearly proved the de .....

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