CRLA No. 4 of 2004 1

 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4 OF 2004

 C. MANICKAM   ..... APPELLANT

VERSUS

STATE OF TAMIL NADU   ..... RESPONDENT

O R D E R

1. The  appellant  herein,  Manickam  and  his  co-accused  

were  working as  Office Assistants  in the  Office of  the  

Assistant Commissioner (Enforcement), Commercial Tax, Salem  

during the relevant period.  P.W. 1 -Nazer Sherif along  

with seven partners was running his business in the name of  

Ragam Ready Mades at Cherry Road, Salem.  The business was  

also  registered  with  the  Commercial  Tax  Officer  as  per  

certificates, Exhibits P5 and P6.  At about 1:30p.m., on  

10th November, 1989, both the accused came to the shop of  

P.W. 1 and demanded Rs. 100/- as Deepavali Inam.  P.W. 1  

expressed his inability to pay the amount on which he was  

threatened  with  dire  consequences.   Under  this  

circumstance, P.W. 1 promised to pay up and an entry was  

made at page No. 25 in the note book Exhibit P1 maintained  

by the two accused.  Both the accused again came to the  

shop  on 23rd November, 1989 and this time along with P.W. 1

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his father P.W. 5 Ahamed Sherif was also present in the  

shop.  The accused again demanded the sum of Rs. 100/-.  

P.W.  1  further  told  them  that  his  partners  were  not  

agreeing to pay Rs. 100/- and he, accordingly, refused to  

pay the amount.  The accused again threatened P.W. 1 that  

if he did not pay up he would repent later and that they  

would return on 27th November, 1989 at 6:00p.m. to take the  

money.  P.W. 1 thereafter lodged a complaint  Exhibit P2  

before P.W. 10 Asokan, the Inspector of Police, Vigilance  

Department,  Salem  at  about  3:00p.m.   P.W.  10  made  the  

necessary  preliminary  arrangements  and  also  secured  the  

service of P.W. 7 to act as a shadow witness.   At about  

6:45p.m., the two accused  came to the shop of P.W. 1  and  

stood in front of the cash counter and again reiterated the  

demand for Rs. 100/-.  P.W. 1 thereupon took out two notes  

of Rs. 50/- and handed them over to A1, who put the same in  

his bag.  A1 also enquired as to the identify of P.W. 2 and  

he  was  told  that  he  was  one  of  the  partners  in  the  

business.  At about 6:50 p.m.  P.W. 1 gave the pre-arranged  

signal to P.W. 10 by folding the sleeves of his shirt.  

P.W. 10  rushed to the spot and seized the tainted money  

and also carried out the phenolphthalein test on A1. The  

said test proved positive as the solution turned pink.  On  

the  completion  of  the  investigation,  the  accused were

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charged for offence punishable under Sections 7, 32 read  

with Section 13(1)(d) of the Prevention of Corruption Act,  

1988.   

2. The trial court on a consideration  of the evidence  

of P.W. 1 and P.W. 2  who had seen the passing of the  

tainted money and P.W. 5 and P.W. 7 to the effect that the  

phenolphthalein test on A1 was positive and further relying  

on the entry dated 10th November, 1989 in the note book  

Exhibit P1, convicted and sentenced the accused for the  

offences charged.  The conviction was maintained by the  

High Court in appeal for the same reasons.  The matter was  

thereafter brought to this Court and whereas the Special  

Leave Petition qua A1 – S.K. Natesan,  was dismissed leave  

has been granted qua A2 Manickam.   

3. We have heard the learned counsel for the parties in  

length.

4. Mr. V.J. Francis, learned counsel for the appellant  

has pointed out that the case of A1 and the appellant was  

substantially different inasmuch as that no recovery had  

been made from the person of the appellant and that the  

phenolphthalein test had not been carried out in his hands  

as he had not handled the money and in this view of the  

matter, the ocular evidence relied upon by the prosecution  

could not prove the case against him.  The learned  State

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counsel has, however, pointed out that the appellant had  

accompanied his co-accused to the shop of P.W. 1 on three  

different occasions on 10th November, 1989, 22nd November,  

1989 and again on 27th November, 1989 and on the last two  

dates, P.W. 5 and P.W. 2 had also been present  in addition  

to P.W. 1.  It has been submitted that the perusal of the  

evidence of P.W. 1 would also indicate that when he had  

refused to make the payment it was the appellant herein who  

had held out the most serious threats.

5.   It is true that the recovery has been made from the  

bag carried by the co-accused and the phenolphthalein test  

also carried out on his hands.  However, in the face of the  

other evidence, already alluded to above, that is of P.W.  

2, P.W. 5 and P.W. 7 and the diary Ex.P1 we find that that  

the appellant also stands inculpated.  We also see that it  

is not the prosecution's case that the appellant had ever  

handled the tainted money. In this view of the matter the  

argument  that  as  the  phenolphthalein  test  had  not  been  

carried  out  on  the  appellant,  the  recovery  cannot  be  

foisted on him, cannot be accepted.  We also see that the  

courts below have on a very clear cut discussion of the  

evidence and relying on the evidence of the four witnesses  

mentioned  above  as  well  as  the evidence of P.W. 10 the

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Investigating Officer have found that the appellant and his  

co-accused were equally involved in the incident.

6. We  thus  find  no  merit  in  the  appeal  which  is,  

accordingly, dismissed.

       ........................J      [HARJIT SINGH BEDI]

    ........................J      [CHANDRAMAULI KR. PRASAD]

NEW DELHI AUGUST 18, 2010.