SUBBUSINGH v. STATE BY PUBLIC PROSECUTOR

Citation: [2009] 7 S.C.R. 383

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN, MUKUNDAKAM SHARMA

Case summary

SUBBUSINGH v. STATE BY PUBLIC PROSECUTOR.pdf

Judgment text

[2009] 7 S. C. R. 383 . SUBBUSINGH V. STATE BY PUBLIC PROSECUTOR , Criminal Appeal No. 402 of 2002 MAY 4, 2009 [DR. ARIJIT PASAYAT, D. K. JAIN AND DR. MUKUNDAKAM SHARMA, JJ. ] Prevention of Corruption Act, 1988 - ss. 7 rlw 12 and 13(2) rlw 13(1)(d) r/w 12 and 20-Demand and receipt ofbribe - By police officer (A 1) through his friend (A2) -- Threatening the complainant to implicate him in criminal case - Trap arranged - Phenolphthalein test positive -Acquittal of both the accused by trial court - High Court convicting A-1 while upholding acquittal of A-2 - On appeal, held. : Facts of the case and conduct ofA-1 establish his guilt - The occurrence leading to demand of the bribe also established - Once it is proved that money was demanded as br{/Je and the same was received by the accused, s. 20 comes into play- Once there is a presumption u/s 20, it is for the accused to establish that the a. mountwas not received as bribe - Conviction ofA-·1 bY. High Court is correct. ,,, · ,,.. ,,,.

,-.. ;· CRIMINALAPPELLATE JURISDICTION : Crimin'afAp~al No. 402 of 2002 F, From the Judgement and Order dated 20. 11. 2001. of the . - Hon'ble High Court of Judicature at Madras in Criminal Appea. 1 ·. No. 316 of 1993 P. P. Rao, K. V. Visanathan, B. Raghunath, Abhispek Kaushik, Vijay Kumar, with him for the Appellant. -- S. Thananjayan, for the Respondent. The Judgement of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a learned Single Judge of Madras High Court setting aside the judgment of acquittal passed by learned Chief Judicial Magistrate cum Special Judge, Erode, Tamil Nadu. Appellant faced trial 8 alongwith one Rajappan. The appellant faced trial for alleged commission of offence punishable under Section 7 read with 12,13(2) read with Section 13(1)(d) read with Section 12 of the Prevention of Corruption Act, 1988 (in short the 'Act'). The trial court directed acquittal of both the accused persons.

The High Court upheld the acquittal so far as the co-accused is concerned, but set aside the judgment of acquittal and directed conviction for the appellant for charged offences. The minimum sentence of six months and fine with default stipulation for the offence punishable under Section 7 of the Act and one year's rigorous imprisonment with fine with default stipulation for the offence under Section 13(2) read with Section 13(1 )(d) of the Act were awarded. 2. Prosecution version in a nutshell is as follows: Subbusingh (Al), the appellant was working as Sub Inspector of Police at Sathiyamangalain Police Station. Rajappan (A2), is the friend of Al. There was a land dispute between Renga Naicker (P. W. 4) and Thippa Naicker (P. W. 21 ). -r ... , · Both of them quarreled with each other on 6. 7. 1991. Nagarajan (P. W. 5), relative of P. W. 4 came to the Sathiyamangalam Police Station and complained to Al Sub Inspector of Police orally against P. W. 21.

Al directed the Police constables P. W. 11 and P. W. 12 to go the spot to bring P. W. 21. Accordingly, they went to the scene of occurrence and found that P. W. 21 was lying down with injuries. The Constables took the injured and others to the Police Station. In the meantime, Selvan (P. W. 2), brother-in-law of P. W. 21 followed them to the Police Station. Since the injured P. W. 21 was not taken to the hospital, P. W. 2 requested A1 to send him to hospital. As, permitted by Al, the injured was taken in an Auto -- disputed. The accused stated that with obliq'ue purpose he was trapped. The money was kept in the pocket of the accused. 8. The case of prosecuti9n with refereni:te to the enquiry over the incident on 6. 7. 1991 is clearly spoken to by P. W. 2, P. W. 21, P. W. 22, son of PW 2-1 and P. W. 23 another relative. Thot1gh the other party namely P. Ws. 4 and 5 turned hostile, they would admit that the incident took place on 6. 7.

1991 and --:Jti that they were called to Police Station by Al, who after enquiry directed them to settle the dispute and warned them That apart, P. W. 13, P. W. 14, P. W. 15 and P. W. 16 the Constables attached to the said Police Station, would also specifically state that the enquiry was conducted on the basis of the oral complaint of P. W. 5 against P. W. 21 by Al and Muchalika, was obtained from them after giving warning on his instruction. Under these circumstances, there is no reason to reject the evidence of P. W. 2, P. W. 13 to P. W. 16 and P. W. 21 to P. W. 23. 9. When these acceptable materials are available through 8 these witnesses, their deposition cannot be rejected merely on the ground that the complaints given by P. W. 4 and P. W. 21 were not marked and Muchalika obtained from both parties were not produced.

As a matter of fact, Arumugham (PW 25), the Inspector of Police, Sathiyamangalam under whom A1 Sub- Inspector of Police was working specifically stated that the complaints of PW 4 and PW 21 were not registered in the Police • Station. This shows that even without receipt of the written · complaint and registration of the same, a mock enquiry was conducted by A1 and on the pretext of enquiry, a Muchalika was obtained from both the parties. 1O. In ~uch a situation, it cannot be contenged that the entire enquiry was over on 6. 7. 1991 itself after obtaining Muchalika. The fact that he went to the field on 7. 7, 1991 at about 11. 00 A. M. and directed P. W. 2 to come and meet him in the Police Station in the evening itself would_show that the parties were made to think that he had not finished the enquiry. Only on the said direction, P. W. 2 went and met A1 in the Police Station on 7. 7. 1991 evening. In that context, Al demanded money from P. W.

2 and threatened that if he failed to bring the balance amount, namely Rs. 400/-, he would initiate action against P. W. 21 on the complaint given by P. W. 5. Only thereafter P. W, 2 undertook to pay that amount on Friday at the police station . 11. This is a case where P. W. 21 was attacked by P. Ws. 4 and 5, as a result of which P. W. 21 sustained injuries and fell down on the field and became unconscious. Instead of taking action against the persons concerned, who attacked P. W. 21, Al detained P. W. 21 from the ,inorning till evening. Though Al was requested by P. W. 21 to send him to the Government Hospital, Al did not choose to send him to the Government -->+ Hospital: on the other hand, he was beaten by Al himself for having requested to send him to the Government Hospital. This shows that Al djd not allow P. W. 2 and P. W. 21 to get the medical records regarding the injuries sustained by P. W. 21. He was sent only to Private Doctor P. W. 10. Though P. W. 10 turned hostile, Ex.

P. 8 marked through him would show, in the light of the evidence of P. W. 2 and P. W. 21, that P. W. 10 gave prescription to P. W. 21 for the injuries sustained by him. -) 12. So far as the stand that money was kept for the purpose of false implicating, the same is without substance. The accused was a police officer who knew the consequences of the bribe. He had not explained as to why he took up the money in his examination under Section 313 of the Code. The accused stated that the PW2 took the money because the Inspector asked him to do so. The normal conduct would have been to take action against PW2 for offering bribe. Additionally, if matter )r was closed there was no need for going to the field. It is to be noted that the 'appellant was alone in his room for sometime holding the currency notes before PW 26 and other officer entered into the house.

Therefore, as rightly observed by the High Court, the possibility of appellant counting the moneywith the help of right hand cannot be ruled out. Once, it is proved by the prosecution that the money was demanded as bribe and _. the same was received from PW2, Section 20 of the Act comes ~ into play. Once there is a presumption as contemplated under ' Section 20, it is for the accused to establish that the amount was not received as bribe. 13. Since minimum sentence has been imposed there is no scope for interference with the same. 14. Above being the position there is no merit in this appeal G' which is dismissed. The appellant shall surrender to custody forthwith to serve the remainder of sentence, if any. K. K. T. Appeal dismissed.