Madras High Court
Dr.A.S.Ramesh vs State Through on 30 October, 2018
Crl.A(MD)No.213 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserved 31/01/2025
Date of Pronounced 24/02/2025
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.A(MD)No.213 of 2019
Dr.A.S.Ramesh : Appellant/Sole Accused
Vs.
State through,
Inspector of Police,
Vigilance and Anti-Corruption Wing,
Virudhunagar.
Crime No.3 of 2005 : Respondent/Complainant
Prayer:-This Criminal Appeal is filed under Section
374(2) of the Criminal Procedure Code, to set aside the
impugned judgment and conviction imposed in Special C.C
No.3 of 2014, dated 30/10/2018 by the Special Judge/Chief
Judicial Magistrate, Srivilliputhur.
For Appellant : Mr.S.Muralidhar
Senior Counsel
for Mr.G.Mariappan
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
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J U D G M E N T
This Criminal Appeal is filed against judgment of
conviction and sentence imposed in Special C.C No.3 of
2014, dated 30/10/2018 by the Special Judge/Chief Judicial
Magistrate, Srivilliputhur.
2.The case of the prosecution in brief:-
The accused Dr.A.S.Ramesh was working as Senior
Assistant Surgeon in the Government Hospital
Srivilliputhur, Virudhunagar District between 03/08/2001
and 01/03/2005. One Nallammal was admitted as an inpatient
in the Female Ward in the Government Hospital,
Srivilliputhur on 15/02/2005 for her head injury. She was
taking treatment as inpatient from 15/02/2005 to
08/03/2005. The accused, who attended on her duty during
that period suggested to her husband V.Jothirajan for
scanning her head at the Head Quarters Government Hospital,
Virudhunagar. When V.Jothirajan requested the accused to
give his requisition for CT scan, the accused told him that
he would give the letter. On 28/02/2005 at about 04.00 pm,
when V.Jothirajan along with his friend M.Marimuthu met the
accused at the Government Hospital, Srivilliputhur and
requested his reference for CT scan, he demanded Rs.300/-
as bribe. Not willing to bribe, the de-facto complainant
lodged a complaint with the respondent police. Based upon
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Crl.A(MD)No.213 of 2019that complaint, a case in Crime No.3 of 2005 was registered
for the offence under section 7 of the Prevention of
Corruption Act. The accused was arrested in the trap. After
completing the investigation, final report was filed. It
was taken on file by the Chief Judicial Magistrate/Special
Judge for Vigilance and Anti-Corruption cases,
Virudhunagar District at Srivilliputhur, in Special CC No.3
of 2014. After completing 207 Cr.P.C proceedings, framed
the following charges against the accused:-
(i)The accused was working as
Senior Assistant Surgeon in the
Government Hospital, Srivilliputhur,
Virudhungar District between 03/08/2001
and 01/03/2005; On 15/02/2005, the
complainant’s wife Nallammal was
admitted as inpatient for her head
injury; The accused, who attended on her
duty, suggested for scanning the head
injury at the Head Quarters Government
Hospital, Virudhunagar; When the
complainant requested the accused to
give his requisition for CT Scan, he
told him that he would give the
reference letter; On 28/02/2005, when
the complainant along with his friend
Marimuthu met the accused at the
Government Hospital, Srivilliputur and
requested his reference for CT scan, he
demanded Rs.300/- as bribe and thereby,https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2025 03:02:11 pm )
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Crl.A(MD)No.213 of 2019the accused committed an offence under
section 7 of the Prevention of
Corruption Act; and
(ii)In the course of the same
transaction, the accused, on 01/03/2005
at about 01.15 pm at the Balaji Clinic
owned by the him, has obtained Rs.300/-
as pecuniary advantage from the
complainant by abusing his position as a
public servant and thereby, he has
committed an offence under section 13(2)
r/w 13(1)(d) of the Prevention of
Corruption Act.
3.To that charges, the accused pleaded not guilty
and claimed to be tried.
4.During the trial process, on the side of the
prosecution, 14 witnesses have been examined and 25
documents marked. On the side of the accused, one witness
was examined and 3 documents marked.
5.PW2 is living in Srivilliputhur. On 14/02/2005,
his wife was assaulted by the neighbour. So, his wife was
admitted in the Government Hospital, Srivilliputhur, on
15/02/2005. The Medical Officer on duty, Dr.A.S.Ramesh,
advised him to take scan. He further stated that in the
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private centre, it may cost Rs.5,000/-. She may take the
scan in the Government Hospital, Virudhunagar; For the
purpose of issuing reference (Ex.P5), he demanded Rs.300/-
at 04.00 pm on 28/02/2005 in the Srivilliputhur Government
Hospital Consulting room; At that time, his friend
M.Marimuthu was also present. In this connection, on
01/03/2005, at about 09.00 am, he lodged a complaint with
the Vigilance and Anti-Corruption Department.
6.Further event is spoken by PW13. He registered
the case on 01/03/2005 at about 09.00 am, in Crime No.3 of
2005 under section 7 of the Prevention of Corruption Act.
He submitted the original records to the Court and the
copies to the higher authorities. For the purpose of
assisting him in trap proceedings, he made a request to the
Government Departments for deputing two officials. In
pursuance of the above said request at about 10.30 an, one
Ramaraj and S.Ramesh appeared before him. He introduced the
official witnesses to PW2 and informed them about the test
to be undertaken. He directed PW2 to produce Rs.300/- that
he had brought. Sodium Carbonate solution was prepared and
one of the police officials was directed to dip his hands
in the solution. There was no colour change.
Phenolphthalein powder was applied to the currency notes.
The police official counted the notes and dipped his hands
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in the solution. It turned pink. He prepared mahazar
mentioning the serial numbers of the currency notes, in
which all the witnesses signed, instructed PW2 to go to the
clinic of the accused and give the money if demanded by him
and asked the official witnesses to accompany PW2 and
witness the event, etc. Further instructed PW2 to give
signal if the accused receives the money. After completing
the formalities, along with the police team and witnesses,
they proceeded to the Government Hospital, Srivilliputhur
reached there. As instructed earlier, PW2 and other
official witnesses were instructed to go to the room of the
accused and give money if demand is made. They were hiding
in a near by place. When they went inside the room of the
accused, he was not available. They were told that he went
to Rajapalayam after the duty. So, at about 01.15 am, they
went to Rajapalayam and reached the clinic of the accused.
7.The further event is spoken by PW2. According to
him, he gave the money to one Gopalan, who was not known to
him. After that, he gave signal as indicated above to the
Trap Laying Officer.
8.Further event is spoken by the Trap Laying
Officer namely PW13. He made enquiry with PW2. He narrated
the events and identified the accused. He made enquiry with
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the accused about the bribe amount. The accused admitted
that he received the money from PW2. Sodium Carbonate
Solution was prepared. The accused was instructed to dip
his hands in separate bottles. The accused dipped his hands
in separate bottles. Both solutions turned pink. After
that, the accused tried to put the currency note in his
mouth by taking it from the drawer, presented, notes were
recovered. He collected scan report pertaining to PW2’s
wife and the prescription. After making preliminary
enquiry, sodium carbonate solution was prepared in which
the accused was instructed to dip his hands separately. He
dipped his hands. Both solutions turned pink. Both were
collected in a separate container, labelled and sealed. He
made enquiry regarding the money received as bribe and the
accused handed over Rs.300/-. They compared the serial
numbers mentioned in the mahazar with that of the serial
numbers in the currency notes handed over by the accused.
They found to be tallied. He prepared a mahazar for the
event, in which all the witnesses signed. At about 02.30 pm
arrested the accused. Search was made in the house of the
accused and seized Rs.9,780/-. That money was returned to
the wife of the accused. The accused was sent for judicial
custody. He submitted the original records and material
objects to the concerned court.
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9.PW4 is the shadow witness, who corroborated the
Trap Laying Officer in material particulars. Regarding the
trap, he has stated that along with PW2, he went inside the
Clinic of the appellant. The appellant alleged to have
enquired PW2 whether he brought money. The appellant
prepared the reference letter in his own hands and handed
over to PW2 after receiving Rs.300/-. The money was put in
the drawer. He identified Ex.P5 reference slip issued by
the appellant.
10.Further investigation was taken by PW14, who was
working in the Vigilance and Anti-Corruption Department as
Inspector. He recorded the statement of the witnesses and
submitted the material objects for chemical analysis to the
FSL through court, received the report from the Lab,
recorded the statement of the Scientific Assistant.
Recorded the statement of the others, recovered the
relevant registers, recorded the statement of the official
witnesses.
11.In the meantime, he was transferred, the file
was handed over to the Successor namely PW15. He took up
the further investigation, verified all the statements and
records recovered. After completing the investigation,
filed final report on 07/01/2008 charge sheeting the
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accused for the offences under sections 7 and 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988.
12.PW12 is the Scientific Officer, who examined the
material objects sent to her by the police through court
and for chemical analysis. She filed the report under
Ex.P19. With that, the prosecution side evidence was
closed.
13.The accused was examined under section 313(1)(b)
of the Code of Criminal Procedure Code about the
incriminating circumstances available against him. He
denied the evidence of the witnesses as false and stated
that a false case has been foisted against him.
14.At the conclusion of the trial, the trial court
found the accused guilty, convicted for the offence under
section 7 of the Prevention of Corruption Act and sentenced
him to undergo 3 years RI and imposed a fine of Rs.10,000/-
in default to undergo 6 months RI; and for the offence
under section 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act, sentenced him to undergo 3 years RI and
imposed a fine of Rs.10,000/- in default to undergo 6
months RI and directed the sentences to run concurrently.
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15.Against which, this criminal appeal is preferred
by the appellant.
16.Heard both sides.
17.Before starting the discussion on the main issue,
one important factor requires to be noticed is that the
tainted money alleged to have been received or accepted by
the appellant was found stolen while in the court custody.
Over which, a case in Crime No.94 of 2015 was registered.
After completing the investigation, final report was filed,
taken cognizance by the Judicial Magistrate No.2,
Srivilliputhur, in CC No.14 of 2016. During the course of
the investigation, the money stolen could not be recovered.
18.A report was called for from the Judicial
Magistrate No.2, Srivilliputhur. The report was submitted,
on 30/01/2025.
19.The learned Additional Public Prosecutor would
submit that the accused during the course of the
investigation has given confessional statement that the
subject money was spent by him, so there was no occasion
for the Investigating Officer to recover the money.
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20.The importance of this issue is that it is the
allegation on the part of the prosecution that at the time
of trap, the accused tried to chew the tainted money. and
it was recovered from him in a crumbled manner. Only to see
the same, the above said steps have been taken by this
court. This court is handicapped without the tainted money.
So, we are not in a position to see the state of tainted
money.
21.Before we go to the main issue, we will keep in
mind the background facts.
22.PW6 is the wife of the de-facto complainant/PW2.
She was injured in an occurrence. She was admitted as
inpatient on 15/02/2005. On 18/02/2005, she went missing,
later re-admitted, on 20/02/2005. For about 18 days, she
was inpatient from 20/02/2005 to 23/02/2005 and 24/02/2005
to 02/03/2005.
23.As per the case of the prosecution, the
appellant herein treated the injured. This fact was borne
out by the records as spoken by the witnesses. In the
meantime, the alleged demand was made on 28/02/2005, over
which, complaint was registered, on 01/03/2005. On the date
of the complaint, after completing duty, the accused namely
the appellant herein went at 07.15 am to take rest. PW7 has
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spoken about the admission of the injured. The accident
register was recorded by PW8; Marked as Exs.P11 and P12 on
the side of the prosecution. He admitted PW6 as inpatient.
PW7 was the Chief Medical Officer in the Government
Hospital, Srivilliputhur. Later, PW9 the Chief Surgeon also
treated the injured, who has also spoken about the above
said facts. PW10 and PW11 are the Nurses, who were on duty
on those days. We will discuss about their evidence in the
later portion of the judgment.
24.Now, as mentioned in the preamble portion, it is
the allegation of the prosecution that the accused
suggested or advised CTC scan for PW6 in the Government
Hospital, Virudhunagar. On 28/02/2005, at about 04.00 pm,
the appellant/accused alleged to have demanded Rs.300/- as
bribe amount for issuing the reference slip. This
occurrence is stated to have taken place on 28/02/2005.
25.Now we will go to the evidence available on
record regarding the initial demand alledgedly made by the
appellant on 28/02/2005.
26.PW2 during the course of the chief examination
would say that the appellant, who treated his wife advised
to take CT scan and if it is taken in a private clinic, it
may cost Rs.5,000/-, but in the Government Hospital,
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Virudhunagar, it will be lesser. So, for making reference,
he must be given Rs.300/- as bribe. At that time, his
friend namely PW3 was present along with him. He promised
him to bring the money on the next day. But not willing to
bribe the accused, he lodged the complaint at about 09.00
am, on 01/03/2005. He participated in the pre-trap
proceedings.
27.We will stop here for a moment. During the
course of the cross examination by the prosecution he was
treated as hostile, with reference to the trap proceedings
and the alleged acceptance of bribe amount by the accused.
Regarding the initial demand, he confirmed the same. During
the course of the cross examination, he would also admit
his participation in the pre-trap arrangement. He was later
recalled by the accused for cross examination on his side,
on 12/05/2015. at that time, he supported the case of the
defence. This portion of the evidence will be discussed
later.
28.Even with regard to the alleged demand made by
the accused, on 28/02/2005, PW3 turned hostile. There are
no corroborative evidence to the alleged demand made by the
accused on 28/02/2005.
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29.Now the question, which arises for consideration
is when PW2 turned hostile, even during the course of the
chief examination, whether his evidence can be reliable in
respect of the initial demand alleged to have been made on
28/02/2005.
30.Now we will go to the complaint under Ex.P1. PW2
has stated in the complaint itself about the initial demand
alleged to have been made on 28/02/2005 in the presence of
PW3. At that time along with him, PW3 signed as a witness
in the complaint itself. So, this, according to the
prosecution, is sufficient enough to prove the initial
demand on 28/02/2005. Subsequent turning of hostile need
not be given any importance, since it is clear that PW2 was
gained over by the accused.
31.For that purpose, the learned Additional Public
Prosecutor would submit that the chief examination was made
on 22/03/2012. On that date, he was not cross examined,
later, he was recalled for further cross examination and on
03/01/2013, he supported the defence.
32.At this juncture, the learned Senior Counsel
appearing for the appellant would submit that there is
contradiction between the evidence of PW2 during the chief
examination and the allegation in the complaint stating it
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is a major contradiction. In the complaint, it is stated
that the accused told him that in a private hospital, it
may cost Rs.5,000/- for scanning and so, he will make
reference to the Government Hospital, Virudhunagar; But in
the chief examination, he has stated that the accused told
him that scan can be taken in the Government Hospital,
Virudhunagar, cost will be lesser.
33.But it is only a minor contradiction, it need
not be given any importance at all. So, the learned
Additional Public Prosecutor would state that it stands
established on the side of the prosecution that on
28/02/2005, the accused demanded Rs.300/- as bribe amount
for referring PW6 for scanning in the Government Hospital,
Virudhunagar. For obvious reasons, as mentioned above, PW2
turned hostile. He cannot be considered to be a genuine
person. But the complaint given by him is admitted. Even on
03/01/2013 itself, as mentioned above, he participated in
the pre-trap arrangement, turned hostile only with regard
to the event took place at the time of trap.
34.The motive suggested by the appellant for
lodging the complaint is that even before discharge of PW6,
the accused who assaulted her were granted bail, since it
was intimated to the court that the injured was discharged
from the hospital. So, this aspect caused trouble in his
mind.
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35.Apart from that for taking scan, PW6 was not
immediately referred to the Government Hospital,
Virudhunagar. It has also caused trouble in his mind.
Because of the above said troubles, he approached a
political person for advise. That person advised him to
lodge a complaint with the respondent so that immediate
treatment will be given to PW6. The appellant traced
support from PW3. He has stated during the course of the
examination that PW2 told him that no treatment was given
and there is a delay in taking scanning.
36.So the question, which arises for consideration
is whether these defences are probabalised by the accused.
37.We will take the probable theory in the later
portion of the judgment. Now regarding the initial demand,
it is the evidence available on record.
38.Regarding Ex.P5 the slip alleged to have been
issued by the accused referring prescription for scanning
in the Government Hospital, Virudhunagar, much controversy
was raised by this appellant during the course of the
argument.
39.Now we will clear this first, before we go to
the trap events.
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40.PW2 says that when he requested a slip,
Compounder was available in the Clinic of the accused,
brought it, gave to him; It was handed over by him to the
Trap Laying Officer at the time of trap. During the course
of the cross examination made by the appellant, he has
stated that after the pre-trap was over, he went to the
Srivilliputhur Government Hospital to see PW6 and at that
time, it 12.45 pm noon; The appellant was not available in
the hospital, PW6 handed over the slip to him stating that
in the morning, the slip was given to her by the Doctor
through a Nurse. Ex.P5 bore the official seal.
41.Now we will go to the evidence of PW6 on that
aspect. During the course of the cross examination, she
would say that she was not able to remember whether Ex.P5
was given to her by the Doctor through a Nurse in the
Government Hospital itself.
42.Now we will go to the evidence of the Nurses.
But neither PW10 nor PW11 have stated anything about Ex.P5
slip. Through whom, Ex.P5 was given could not be found out.
Since PW2 contradicts himself with reference to Ex.P5, now
we will go to the evidence of the Trap Laying Officer to
see from whom it was recovered. He would say that PW2
handed over Ex.P5 to him at that time of trap. PW4 is the
shadow witness. During the course of the chief examination,
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he would say that Ex.P5 was written in hand by the
appellant, handed over the same to PW2.
43.From the evidence of these witnesses, it is seen
that Ex.P5 was handed over by PW2 to the Trap Laying
Officer at the time of trap.
44.We will go to the mahazar to find out whether
any reference was made with reference to recovery of Ex.P5.
Ex.P7 is the Mahazar referring the trap event, wherein we
find reference to handing over of Ex.P5 to the Trap Laying
Officer by PW2.
45.Now, again another argument that was advanced by
the appellant is that as per the evidence available on
record, Ex.P5 bore the official seal. The official seal
might be available in the office that too in the custody of
the Superintendent; Without his knowledge, it cannot be
removed from the hospital. This fact is admitted by the
prosecution witness. But, no official seal was recovered
from the private clinic of the accused. But we see the seal
of the appellant and his signature. He did not deny his
signature in Ex.P5 and the seal.
46.Now another contention raised by him is that he
never treated PW6. So, there was no occasion for him to
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give reference slip under Ex.P5. For that purpose, the
appellant would rely upon the cross examination made by him
to PW14.
47.PW14 would say that he did not verify whether on
28/02/2005, the accused was on duty in the Government
Hospital, Srivilliputur and did not peruse any record of
treatment made by the accused. The accused also referring
to Ex.P9, the treatment Card. Similarly, on 15/09/2005
also, PW14 has not verified any document showing the duty
register to verify that the accused was not in the hospital
at the time of admission.
48.But the Chief Medical Officer namely PW7
Chidambaranathan says that Ex.P15 duty register will show
the duty assigned to the appellant. He also identified the
signature of the accused in Ex.P5. During the cross
examination, it was suggested to him that from 20/02/2005
to 23/02/2005, the accused did not treat PW6. After that
one Dr.Paujraj and one Dr.Ramesh treated PW6. Simply
because, on 28/02/2005, the accused did not treat PW6, no
inference can be drawn that Ex.P5 was not issued by the
accused.
49.Another controversy raised by the appellant is
with regard to the inpatient number. But when the accused
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has not denied and disputed his signature in Ex.P5, all the
arguments will not help him to probabalise his defence that
it was not issued by him. It is not even the case of the
defence that his signature was misused by some one.
50.From the discussion made above, on the basis of
the evidence on record, it stands established that Ex.P5
was indeed issued by this appellant. So, the contention
that there was no occasion for him to demand the money on
28/02/2005 also gain no support.
51.Now coming to the trap event. In this context,
an argument was advanced by the appellant that PW2, the
complainant, informed the Trap Laying Officer about the
issue of reference sheet by the accused. So, no further
action may be taken in his complaint, but it was not
accepted by the Trap Laying Officer stating that the
process cannot be and could not be stopped in midway.
52.The evidence of PW2 during the cross examination
runs like this:-
“m.rh.M.5-ia vd; kidtp
vd;dplk; ];nfd; vLg;gjw;fhf
_tpy;ypg[j;J}h; muR kUj;Jtkidapy;
ehd; ghh;j;j nghJ bfhLj;jhh;.
m.rh.M.5-y; _tpy;ypg[j;J}h; muR
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kUj;Jtkid mjpfhhp vd;W mYtyf
Kj;jpiu Fj;jg;gl;Ls;sJ vd;why; rhp.
me;j rPypg;ig mjpfhhpfsplk;
bfhLj;Jtpl;L kUj;Jtkidf;F ];nfd;
vLf;f vd;f;F ghpe;Jiu bra;a
vGjpf;bfhLj;jjhy; nky; eltof;if
njitapy;iy vd;W bjhpfpwJ.
fhty;Jiw mjpfhhp Jtq;fpa
eltof;ifapy; ghjpapy; epWj;J ,ayhJ
vd;Wk; vdnt vjphpapd; tPL cs;s
uh$ghisaj;jpy; nghnthk; vd;W
miHj;Jf; brd;whh;fs;.”
53.The meaning of this cross examination is that
PW2 has already admitted that for the purpose of getting
proper treatment for his wife, he sought the advise of a
political person. As per his advise only, he gave the
complaint. Now the purpose of the complaint was
accomplished since Ex.P5 was issued in the morning itself.
54.But this argument also does not appeal to me,
since as mentioned above, Ex.P5 was recovered from PW2 by
the Trap Laying Officer at the time of trap. So, the
particulars given by PW2 during the course of the cross
examination is nothing, but another attempt to save the
appellant from conviction.
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55.Now the appellant would contend that PW2 says
that he alone went to the house of the accused, but did not
see him. But in the Clinic, the Assistant was present, gave
the money to him stating that it is the fee for treatment.
So, according to him, on the date of the trap, he did not
see the accused, gave the money to the Assistant, which was
the fee for treatment.
56.PW, during the chief examination, would say that
at about 12.45 pm, they went to Rajapalayam as a team,
after the pre-trap arrangements. They arrived Balaji Clinic
owned by the accused. As instructed, along with the shadow
witness, he went inside of the clinic and contacted one
Compounder, requested that Compounder to bring the
reference slip from the Doctor; That Compounder brought the
reference slip from the Doctor, gave it to him, in turn, he
gave the money to the Compounder; He never gave the money
with the accused in person. So, the appellant would contend
that this is sufficient to disbelieve the Trap event.
57.Now we will go to the evidence of the shadow
witness PW4. He would say that along with PW2, they went
inside the private Clinic of the appellant and the accused
enquired PW2 whether he has brought the money; The
reference slip was prepared by the accused by his own
hands, gave to PW2, he in-turn gave the money to the
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appellant; He received the money, put the same in the
drawer.
58.Now the question, which arises for consideration
is which one of these two persons are believable.
59.As already stated, PW2 appears to be not a
genuine person because of his turning his tongue
frequently. Whether the evidence of PW4 can be accepted has
to be decided in the light of the argument advanced by the
appellant.
60.Trap in Rajapalayam is disputed by the appellant
stating that absolutely, there is no evidence on record to
show that PW2 was asked to come to Rajapalayam by the
Appellant; When PW2 has admitted that Ex.P5 was handed over
to him by his wife, even in the morning itself, there is no
necessity to go to Rajapalayam to get the reference slip;
The travelling time between Rajapalayam and Srivilliputhur
is more than 1-1/2 hours; So, the trap would not have taken
place at about 01.10 pm.
61.Now we will clear the time factor first.
62.PW5 is the another official witness. He would
say that at about 01.30 am, they started from Virudhunagar
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to Srivilliputhur. In Srivilliputur Government Hospital,
they were informed that the appellant, after completing the
duty, went to Rajapalayam. So, they proceeded to
Rajapalayam. During the chief examination, he has not
mentioned the correct time of arrival in Rajapalayam. The
Trap Laying Officer would say that at about 12.45 pm, they
reached the Government Hospital, Srivilliputhur and later,
arrived Rajapalayam at 01.15 pm. According to him, within
half an hour from Srivilliputhur, they reached Rajapalayam.
So, this according to the appellant is highly unbelievable.
Since the travelling time between these two places is more
than 1-1/2 hours.
63.But there is no evidence on this aspect to show
the exact travelling time between these two places. But he
is very particular about the reaching of Srivilliputhur
Government Hospital and would say that at about 12.45 pm,
they reached Srivilliputhur Government Hospital.
64.So, the question which arises for consideration
is whether because of the distance between Srivilliputhur
and Rajapalayam, the trap could not have been taken place
at Rajapalayam can be accepted. But these are the simple
issues, which need not be given much importance. The time
taken for travelling may not assume any importance at all,
since the evidence of PW2, PW4, PW5 and the Trap Laying
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Officer are very clear to the effect that they went to
Rajapalayam to the Clinic of this appellant.
65.Now coming back to PW4’s evidence regarding the
demand, acceptance of money by the appellant, it was argued
that during the course of cross examination, he would say
that on that date, at about 08.00 am, he was informed about
the trap; But the complaint itself was registered only at
09.00 am. So, absolutely, there is no occasion for the
Trap Laying Officer to inform him at 08.00 am in the
morning; He would further state that when they went to the
Clinic of the appellant, no patients were available;
Similarly, he has stated in his evidence during the course
of cross examination that PW2 has known the residence of
the accused; Only PW2, took them to the Clinic.
66.The appellant would submit that this is quite
contra to the evidence of PW5 Ramaraj; So, because of the
inconsistent evidence of PW4, he should not be believed
regarding the very trap event itself.
67.Regarding the time factor and the compliant, we
will go to the evidence of PW13 the Trap Laying Officer. He
would say that on 01/03/2005 at about 09.00 am, the
complaint was lodged by the complainant; At about 10.00 am,
he sent communication to the Government Departments to
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depute two responsible persons for assisting him in the
trap proceedings. In pursuance of which, at about 10.30 am,
two officials appeared before him.
68.No doubt that there is contradiction in this
regard between the evidence of PW4 and the Trap Laying
Officer. But this time factor does not assume any
importance, because the time spoken by PW4 does not assume
any importance in view of the fact that the trap was
conducted, which is even admitted by PW2 himself during the
course of cross examination.
69.Regarding the contradiction of finding location
of the appellant’s Clinic, in fact, there is contradiction
between the evidence of PW4, PW5 and the Trap Laying
Officer PW13. PW13 would say that PW2 took them to the
Clinic of the appellant, since he was already known to him.
The contradiction between PW4, PW5 and PW13 regarding that
aspect also may not assume any importance, since it is only
a minor contraction.
70.Regarding the presence of patients in the Clinic
at the time of trap, PW2 would say that when they went to
the Clinic of the appellant, a Compounder was present. PW5
would say that there were two or three patients at that
time. PW13 has not stated anything about the presence of
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the witnesses in the Clinic. Again, that is a minor
contradiction between the evidence of PW4 and PW5.
71.Now the recovery:- the appellant tried to put
the money in his mouth after taking it from the drawer; But
the Trap Laying Officer immediately prevented it by holding
his hands and closed his mouth and then recovered the money
from his hands; PW5 would say that the accused handed over
the money to the Trap Laying Officer. Further, he would say
that the accused put the money in his mouth and started
chewing; But the Trap Laying Officer recovered the money
from his mouth.
72.PW13 the Trap Laying Officer would say that the
accused by taking the money from his drawer tried to put it
in his mouth, he was pushed away and by using the minimum
force, he recovered the money from his hands.
73.Apparently, there is contradiction between PW4,
PW5 and PW13 regarding the attempt on the part of the
appellant to chew the money by putting it in his mouth.
74.As mentioned in the opening paragraph of the
discussion, the crumbled state of the tainted money could
not be seen because of the theft and non-recovery.
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75.No doubt that there is contradiction between the
evidence of PW4, PW5 and PW13. But the question, which
arises for consideration is whether because of the
contradiction, the entire recovery process can be
disbelieved. I do not think so. Because the evidence of
these people are believable in respect of the overall trap
events. If really, PW2 evidence can be believed to say that
he handed over the money only to the Compounder and not
the accused, then the Sodium Carbonate Solution test would
not have turned positive.
76.Now we will go to the test. PW4 and PW5 would
say that after recovery of money, test was conducted. But
PW13 the Trap Laying Officer would say that the test was
conducted before the recovery. This was commented by the
appellant stating that trap was not conducted as per the
settled procedure, directing the appellant to the Sodium
Carbonate test even before recovery vitiates the entire
recovery process.
77.But PW13 is very clear in his evidence that
before recovery process, the test was conducted. But why
PW4 and PW5 have stated that only after recovery, test was
conducted is not explained by the prosecution. More-over,
it appears that no procedural violation was committed by
PW13 in this regard. So, the contradictory evidence between
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PW4, PW5 and PW13 does not affect the evidentiary value of
PW13. So, the contention on the part of the appellant that
the recovery itself is not proved, cannot be accepted.
78.Now coming to the final stage, the prosecution
would submit that simply because, PW2 turned hostile his
evidence need not be completed disregarded. And in this
context, he relied upon the judgement of the Hon’ble
Supreme Court in Vinod Kumar Vs. State of Punjab [(2015)3
SCC 220 and Nrayana Vs. State of Karnataka [2010)14 SCC
453] and would submit that practices of adjourning the
matter for years together and thereafter, recalling the
witness for cross examination was deprecated. He would
further submit that even if the complainant turned hostile,
his evidence need not be erased completely. These are the
settled principles of law. The evidence of hostile witness
cannot be completely discarded. The evidentiary value has
to be tested on the case to case basis and the
circumstances available. Even if PW2’s evidence is
discarded completely, the other circumstances must be taken
into account in view of the settled position of law by the
Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State
(Govt. of N.C.T. Of Delhi (2023 LiveLaw (SC) 2011. This
judgment is cited by the appellant also.
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79.Now the appellant, by relying upon the very same
judgment, would submit that when the demand namely the
initial demand itself has not been established, section 20
of the Prevention of Corruption Act will not come into
operation; Even the demand on the date of the trap itself
can be disbelieved, because of the inconsistent statement
of PW4, PW5 and PW13, so also the recovery. According to
him, when these three stages fail, automatically the
appellant is entitled to the judgment of acquittal.
Regarding that, he would rely upon the judgments of the
Hon’ble Supreme Court in Prabhat Kumar Guupta Vs. State of
Jharrkand and another [(2015)1 SCC (Cri) 427] and
M.R.Purushotham Vs. State of Karnataka [(2015)2 SCC (Cri)
249].
80.Another contention is that when the Trap Laying
Officer did not record the explanation of the appellant
violating the manual, he is entitled for the benefit as per
the judgment reported in S.P.Tamilarasan Vs. State
[2017(3)MWN (Cr.)435].
81.In the light of the above said rival submission,
on the basis of the precedents, if we look into the
ingredients of the initial demand, since PW2 turned
hostile, and there is no corroboration for the initial
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demand, when PW3 also turned hostile, we can conclude that
the initial demand alleged to have been made on 28/02/2005
was not established. But the demand was established on the
date of the trap itself. It is proved satisfactorily. As
mentioned above, I find no major contradiction in the
evidence of PW4 regarding the demand made at the time of
trap itself. There is no major contradiction in his
evidence. In fact, PW2 has also admitted that along with
PW4, they went inside the Clinic of the accused. So, the
presence of PW4, at the time of trap stands established and
the evidence on that aspect can be relied.
82.Regarding the recovery also, I find no major
contradiction in the evidence of PW4, PW5 and PW13. Except
the minor contradictions regarding the event of attempt to
swallow the money, I find that absolutely no circumstance
was brought on record by the appellant to disbelieve them.
The appreciation of the evidence of the trial court
warrants no interference.
83.For more clarity, now we will go to the evidence
of the Trap Laying Officer on that aspect. He has stated in
his evidence that he made enquiry with the accused with
regard to the tainted money. But nothing has stated about
the recording of his explanation after the trap events. No
explanation was sought from him during the course of the
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cross examination regarding this aspect. In the mahazar
also, nothing has been recorded in this regard. It is
nothing, but the manual violation. But that alone will not
enure the benefit of the appellant, when he has not stated
that because of the violation, he was seriously prejudiced.
84.Regarding the non-compliance of the manual, I am
of the considered view that this is not a major issue.
Violation of the Manual will not vitiate the prosecution,
More-over, when the circumstantial evidences are
overwhelming. To overcome all these issues only, the
Hon’ble Supreme Court settled the position in Neeraj
Dutta‘s case.
85.So, I conclude that the prosecution has
established the case beyond all reasonable doubt, rightly
it was held so by the trial court, which requires no
interference.
86.In the light of the above said discussion, the
conviction rendered by the Trial court requires no
interference. Regarding the sentence period, considering
the oldness of the matter and the amount involved, the
sentence period is reduced to one year RI for both
offences.
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87.With the above said modification, this criminal
appeal stands dismissed.
Index : Yes/No 24/02/2025
Internet : Yes/No
er
To,
1.The Special Judge/
Chief Judicial Magistrate,
Srivillputhur.
2.The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.213 of 2019
G.ILANGOVAN,J
er
Crl.A(MD)No.213 of 2019
24/02/2025
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