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[Cites 14, Cited by 4]

Madras High Court

Kanagaraj vs State Through Dsp on 2 July, 2012

Author: P.R.Shivakumar

Bench: P.R.Shivakumar

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02/07/2012

CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
						
Crl.A.(MD)No.399 of 2005

Kanagaraj				...	Appellant

Vs.

State through DSP
Vigilance and Anti-corruption
Pudukottai
(Cr.No.08 of 1999)			...	Respondent

	This Criminal Appeal has been filed under Section 374(2) of Criminal
Procedure Code to set aside the conviction and sentence passed by the Chief
Judicial Magistrate-cum-Special Judge under the Prevention of Corruption Act,
1988, Pudukottai in Special C.C.No.03 of 2000 dated 03.08.2005 allow the appeal,
acquit the appellant/Accused No.1..

!For Appellants	...  Mr.ARL Sundaresan
		     Senior Counsel for
		     M/s.M.Ravi					
^For Respondent	...  Mr.T.Mohan
		     Additional Public Prosecutor

:JUDGMENT

The first accused in Special C.C.No.3 of 2000 on the file of the Chief Judicial Magistrate-cum-special judge under the Prevention of Corruption Act,1988, Pudukottai who was prosecuted along with one Ameer Ali for offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988, found guilty of the said offences and sentenced:- 1) to undergo rigorous imprisonment for one year and pay a sum of Rs.2000/- as fine with a default sentence of rigorous imprisonment for one month for the offence under Section 7 of the Prevention of Corruption Act, 1988; and 2) to undergo rigorous imprisonment for one year and pay a fine of Rs.3000/- with a default sentence of rigorous imprisonment for two months for the other offence, namely the offence under Section 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988, by the Judgment of the trial Court dated 03.08.2005, has come forward with the present appeal against his conviction and sentence. By the said impugned Judgment dated 03.08.2005 while convicting and sentencing the appellant (first accused) as aforesaid, the learned trial Judge chose to hold Ameer Ali, who figured as the second accused, not guilty of any one of the above said offences and acquitted him. For the sake of convenience, the appellant shall be referred to as first accused and the Ameer Ali, who has been acquitted, shall be referred to as second accused.

2. The case of the prosecution that can be discerned from the evidence, both oral and documentary, adduced on the side of the prosecution, can be summarized as follows:

i) The first accused Kanagaraj was the Taluk Supply Officer, Avudaiyar Kovil, Pudukottai District and the second accused Ameer Ali was the Village Administrative Officer, Embal, Avudaiyar Kovil Taluk, Pudukottai District at the relevant point of time. PW6-Jalik is the co-brother's son of PW2-Ismail. When he wanted to apply for a Driving License, production of the school certificate and family card was demanded in the driving school approached by him and on such production, it was pointed out that the name of Pw6 differed. His name had been written as "Jalak Khan" in the family card as against "Jalik" found in his school record. Therefore PW2-Ismail approached the first accused Kanagaraj, the then Taluk Supply Officer, Avudaiyar Kovil for getting the name of PW6 corrected in the family card. As directed, in the Office of the first accused, he prepared Ex.P2 application on 17.11.1999, got the signature of PW6-Jalik and gave it to the first accused along with the xerox copies of the family card and the transfer certificate of PW6. The first accused Kanagaraj asked him to come on 18.11.1999 and on 18.11.1999 at about 12.30 p.m, when PW2-Ismail met the first accused in his office, he demanded a sum of Rs.250/- as illegal gratification for effecting correction of the name of PW6 in the family card.

When PW2 replied that he did not have the wherewithal to pay the said amount, he was informed by the first accused that without payment of money, he could not get the family card corrected.

ii) Again on 23.11.2009, the first accused Kanagaraj met PW2-Ismail in the Bazaar Street in Avadaiyar Koil and asked him whether he had brought the money. PW2 expressed his inability and requested for effecting correction in the family card free of cost. The first accused informed him that he could not get the job done without making payment and that PW2 should pay the amount even by borrowing the same from others. As PW2 was not willing to make payment of the illegal gratification as demanded by the first accused, he prepared Ex.P3 complaint on 25.11.1999 and lodged it in the Office of the Vigilance and Anti-corruption Wing at Pudukottai.

iii) PW9-Thiru.Masilamani, Deputy Superintendent of Police, Vigilance and Anti-Corruption, Pudukottai received the said complaint, prepared Ex.P20-First Information Report and registered a case as Crime No.08 of 1999 on the file of the said police station. He invited PW3 Arunachalam, a Junior Assistant from Agricultural Department and One Panchanathan @ Muthu from Co-operative Department to the Office of the Vigilance and Anti-corruption, Pudukottai, conducted a demonstration in their presence to show how phenolphthalein powder would be used in trap cases, got two currency notes of 100 rupees denomination and one currency note of 50 rupees denomination (marked as MO 1 series) brought by PW2 coated with phenolphthalein powder on each side of the currency notes and entrusted the phenolphthalein coated currency notes to PW2 after noting the serial numbers of the currency numbers with instructions to use the said money for making payment to the first accused if demanded by the first accused. The said particulars along with the serial numbers of the currency notes were incorporated in Ex.P5 - Entrustment Mahazar signed by all the above said witnesses. PW3-Arunachalam was instructed to be a shadow witness, who would accompany PW2 to the office of the first accused and keenly observe the happenings there. Thereafter, PW2-Ismail, PW3-Arunachalam and the other witness Panchanathan were taken by PW9 Masilamani (DSP) in the police jeep to Avudaiyar Koil and stopped the jeep at a distance from the Taluk Office where from PW2 and PW3 were sent to the office of the first accused. A pre-arrangement had also been made as to how a signal should be made by PW2, in case the first accused accepted the payment. At about 01.45/02.00pm, Pws 2 and 3 went to the office of the first accused and found that the first accused was not there. They were informed that the first accused had gone out for inspecting the fair price shops and he was excepted to return only in the evening. After waiting for his arrival upto 05.45 pm and ascertaining that he would not come to the office on that day, they came back to PW9 and informed him, whereupon the entire team, returned back to the Office of the Vigilance and Anti-corruption. There Ex.P6 Mahazar was prepared and PW2 was asked to go home and come to the Vigilance and Anti-corruption office, Pudukottai, the next day, if he was inclined to do so.

iv) On 26.11.1999 at about 08.00 a.m, PW2 again went to the said office. Thereafter, PW3-Arunachalam and Panchanathan @ Muthu also came there. Again a demonstration was made, another entrustment mahazar was prepared under Ex.P7 and after giving similar instructions, they were taken along with the police team in the police jeep to Avudaiyar Kovil Bazaar. Pws 2 and 3 got down from the jeep, hired a cycle and went to the office of the first accused at about 11.45 a.m. The first accused, who was found in his seat, on seeing PW2 asked him whether he had brought the money which evoked a positive reply from PW2. However, the first accused came out of his office room and called Ameer Ali, the second accused and instructed PW2 to pay a sum of Rs.250/- to the second accused, pursuant to which PW2 handed over MO1 series to the second accused Ameer Ali. Thereafter, the first accused Kanagaraj got the original ration card (marked as Ex.P8) bearing No. 21B/142056 from PW2, placed it on his table and went out in his motor cycle stating that he was going out for taking tea. When the first accused returned after an hour, the second accused Ameer Ali handed over MO1 currency notes to the first accused. The first accused Kanagaraj received it and kept it in his shirt pocket, then corrected the name of Jalak Khan into Jalik in the family card, affixed his signature and office seal authenticating the correction and handed over the original ration card to PW2. PW2 got the corrected Ration Card, came out of the office of the first accused and gave the signal as per the pre-arrangement. Thereafter, PW9 and the police party came there and heard PW2 narrating what happened. Then PW9 along with the police party entered the office of the first accused, introduce himself and conducted a phenolphthalein test using sodium carbonate solution prepared in two glass tumblers and asking the first accused to dip his fingers in the solutions. The sodium carbonate solution used for testing the left hand of the first accused, namely MO2 turned pink and the other solution, namely MO3 used for testing his right hand did not show any change in colour. Similarly, phenolphthalein test was conducted for both the hands of second accused Ameer Ali. The solution contained in MO5 bottle used for testing the left hand fingers of the second accused turned pink, whereas the sodium carbonate solution contained in MO4 used for his right hand did not show such change in colour. On being questioned, second accused Ameer Ali informed PW9 that he got Rs.250/- from PW2, as directed by the first accused Kanagaraj, and gave it to A1 Kanagaraj. A1 Kanagaraj took out a total sum of Rs.485/- from his shirt pocket and gave it to PW9. When the serial numbers of the currency notes were compared with the serial numbers noted in Ex.P7 Entrustment mahazar, two 100 rupees notes and one 50 rupees note, marked as MO1 series, were found to be the amount entrusted with PW2 after coating the same with phenolphthalein powder. The balance amount of Rs.235/- marked as MO6 series was found to be A1's own money. When phenolphthalein test was conducted for the shirt pocket of the first and second accused and the same gave positive result. The sodium carbonate solution found in MO7 and MO8 were used for testing the shirt pockets of A1 and A2 respectively. PW9 seized Ex.P8 family card, Ex.P10 Attendance Registrar, Ex.P12 Application Register, Ex.P11 Flag Day collection Receipt Book, MO9 and MO10 shirts of the accused 1 and 2 and Ex.P2 application for correction in the family card under Ex.P9 mahazar in the presence of the above said Panchanathan and PW3- Arunachalam and PW4-Anantha Krishnan, Regional Deputy Tahsildar, Ex.P13- observation mahazar and Ex.P21 rough sketch were also prepared. Between 3.15 and 3.45 pm on the same day, PW9 conducted a search in the house of the first accused bearing Door No.53, Angalamman Koil Street, Aranthangi and Ex.P14 search list was prepared . But no incriminating material was recovered. Similar house search was made at the residence of A2 Ameer Ali bearing Door No.47, Rathnakottai Village between 04.00 p.m and 04.30 p.m on the same day, for which Ex.P5 search list was prepared. Thereafter, the investigation of the case was entrusted to PW10 Thiru.Raju, Deputy Superintendent of Police based on the orders of the Superintendent of Police, Vigilence and Anticorruption, Madurai dated 26.11.1999.

v) PW10 examined witnesses, collected the materials, got material objects tested in the forensic laboratory, Madurai, completed the investigation and submitted a final report on 24.11.2000 alleging commission of offences punishable under Sections 7, 13(2) r/w. 13(1)(d) of the Prevention of Corruption of Act by both the accused.

3. In order to prove the prosecution case, 10 witnesses were examined as Pws 1 to 10, 21 documents were marked as Exs.P1 to P21 and 10 material objects were produced as MOs 1 to 10 on the side of the prosecution. After the completion of the recording of evidence adduced on the side of the prosecution, the accused were questioned under Section 313(1)(b) Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution and also generally regarding the case. The accused stated that the evidence appearing against them were false and reiterated their stand that they were innocent. Two witnesses were examined as Dws 1 and 2 and eight documents were marked as Exs.D1 to D8 on the side of the accused.

4. The learned trial Judge after hearing the arguments advanced on both sides, considered the evidence and upon such consideration, found the second accused not guilty of the offences for which he was prosecuted and acquitted him and at the same time, found the first accused guilty of both the offences with which he stood charged, convicted him and sentenced him to the punishments as indicated supra. The said judgment of the trial Court is challenged by the first accused both in respect of his conviction and sentence on various grounds set out in the petition of appeal.

5. The point that arises for consideration in this appeal is:

"Whether judgment of the trial court convicting the appellant/first accused is infirm and defective either in respect of conviction or in respect of punishment or in respect of both warranting interference of this court in this appeal?"

6. The arguments advanced by Mr.ARL Sundaresan, learned senior counsel representing the counsel on record for the appellant and by Mr.T.Mohan, learned Additional Public Prosecutor were heard. The materials available on record were also perused.

7. The simple case of the prosecution is that the first accused Kanagaraj, who functioned as Taluk Supply Officer, Avudaiyar Kovil, Pudukottai District demanded a sum of Rs.250/- as illegal gratification for correcting the name of PW6 in the family card from "Jalak Khan" to "Jalik" to make it in consonance with the name written in his school transfer certificate and that he received the said amount of Rs.250/- as illegal gratification on 26.11.1999 at about 11.45 a.m. It is the further case of the prosecution that only after getting the said amount as gratification, he effected correction of the name of PW6 in the family card. It is also the case of the prosecution that the second accused Ameer Ali also acted in unison with the first accused Kanagaraj and it was he who received the bribe money from PW2-Ismail as per the instructions of the first accused and handed it over to the first accused. Though the said story of the prosecution that the amount was routed through the second accused was believed by the trial Court, the learned trial Judge chose to convict only the first accused and acquitted the second accused holding that the charges against the first accused alone were proved beyond reasonable doubt. According to the prosecution version, PW6's name was correctly noted as "Jalik" in his transfer certificate, whereas in the family card a mistake had crept in and his name had been wrongly noted as "Jalak Khan" instead of Jalik. The further case of the prosecution is that when he wanted to produce copies of those documents for getting a Driving License, the people in the driving school informed him that the discrepancy should be rectified and that based on the same, an application signed by PW6 was submitted by PW2-Ismail to the Taluk Supply Officer, namely the first accused, whereupon the first accused demanded payment of Rs.250/- as illegal gratification. The prosecution case proceeds on the basis that the demand was made by the first accused on two occasions besides the last demand made on the date of occurrence, namely 26.11.1999. According to the prosecution case, even before the submission of the application for correcting the name of PW6 in the family card, PW2 met the first accused in his office on 16.11.1999 whereupon he was asked by the first accused to submit an application; that on 17.11.1999 at about 01.00 p.m, Ex.P2 application was handed over to the first accused and that after perusing the same, the first accused asked PW2 to come and meet him the next day. It is the further case of the prosecution that on 18.11.1999 at about 12.30 p.m, PW2 met the first accused in his office and at that point of time, the first demand for payment of Rs.250/- as illegal gratification was made by the first accused. It is the evidence of PW2 that though he expressed his inability to pay the said amount as illegal gratification, the first accused informed him that without payment of such money, he could not get the name corrected; that subsequently on 23.11.1999, the first accused made a second demand when he met PW2 in the Bazaar street, Avudaiyar Koil; that when he replied that he could not arrange for the money, the first accused asked him to borrow and bring it; and that only thereafter PW2 decided to lodge a complaint with the Vigilance and anti-corruption.

8. On the receipt of Ex.P3-complaint, Ex.P20-First Information Report was prepared and a case was registered in Cr.No.8 of 1999 for an offence under Section 7 of the Prevention of the Corruption Act on the file of Vigilance and Anti-corruption Department, Pudukottai by Pw9, the then Deputy Superintendent of Police, Pudukottai. The entrustment mahazar prepared on 26.11.1999 has been produced as Ex.P7. The very same person, who were the witness for the preparation of Exs.P5 and P6 mahazars figured as the witness for the preparation of Ex.P7 mahazar. They are concerned with the alleged execution of the trap in which the first accused was caught red handed with the tainted money proving the charges framed against him. There is evidence in the form of the testimonies Pws 2 and 3 that when PW2 met the first accused on 26.11.1999 in his office, the first accused asked PW2-Ismail whether he had brought the money for which Pw2 replied in the affirmative; that thereafter the second accused Ameer Ali on the instructions of the first accused received the money from PW2 and kept it in his pocket and that the first accused who went out and came back after a gap of an hour, got it from the second accused kept it in his shirt pocket and thereafter, effected correction of the name of PW6 in the family card and handed it over to PW2 after authenticating the correction by his signature and office seal. There is also evidence in the form of the testimonies of Pws 3 and 9 that after PW3 gave the signal indicating that the first accused had accepted the bribe money, the police came and conducted phenolphthalein test for the hands of both first accused as well as the second accused based on the information furnished by PW2 that the bribe money was received by the second accused and the same was then handed over by the second accused to the first accused. The evidence of PW3 and PW9 are to the effect that the Sodium Carbonate solution used for testing the left hand fingers of the first accused and left hand fingers of the second accused turned pink, whereas the sodium carbonate solutions used for testing the right hand fingers of the first accused and the right hand fingers of the second accused did not show change of colour.

9. Mos 2 and 3 are the bottles containing the sodium carbonate solutions used for conducting phenolphthalein test for the right and left hands of A1 respectively. Mos 4 and 5 have been produced as the bottles containing the sodium carbonate solution used for testing the fingers in right and left hands of the second accused Ameer Ali respectively. PW7-Thamarai Selvan is the Scientific Assistant who conducted chemical examination of the solutions found in MOs 2 to 5 and submitted a report under Ex.P19. The copy of the covering letter with which those material objects were sent to the laboratory from the Court has been marked as Ex.P18. All the four solutions tested positive for both phenolphthalein and sodium carbonate. The fact that all the four solutions tested positive for phenolphthalein as well as sodium carbonate may be taken as a ground for drawing an inference that both the first and second accused used both hands for handling the currency notes smeared with phenolphthalein. The receipt of MO1 currency notes by the first accused from the second accused is not disputed. Therefore, in the normal circumstances, there would not be any surprise in the sodium carbonate solution testing positive for phenolphthalein test. Whether the simple fact that he was found with the tainted money and his fingers tested positive alone shall be enough to hold that the first accused had received it as illegal gratification is the pertinent question to be answered. In this regard, learned senior counsel for the first accused made the following submissions:-

i) Though the prosecution proceeded on the premise that the second accused acted in collusion with the first accused in getting the bribe money for the first accused and his fingers also tested positive for phenolphthalein test, the Court below held him not guilty of any one of the offence with which he stood charged and on the other hand, the first accused who was placed in a similar situation, excepting the addition that there was a demand from the first accused and the second accused received the amount on behalf of the first accused, was treated differently by the Court below in holding him guilty of the offences for which he was prosecuted. The said approach made by the Court below is erroneous and the doubt entertained in respect of the second accused should have been entertained as a reasonable doubt regarding the charges against the first accused also.
ii) According to the prosecution case, there was demand on two earlier occasions and the final demand was made on 26.11.1999. However for the demands allegedly made on 18.11.1999 and 23.11.1999, there is no other evidence excepting the testimony of PW2, the defacto complainant.
iii) PW2, the defacto complainant, who was not willing to make payment of the meager amount of Rs.250/- and who was allegedly informed by the first accused that without making payment of the said amount he could not get the correction made in the family card as desired by him, did not lodge a complaint immediately and waited till 25.11.1999 to lodge Ex.P2 complaint. The same will show a concoction and a deliberate attempt to implicate the first accused.
iv) The circumstances under which the tainted money was received by the second accused Ameer Ali and the circumstances under which the first accused received the tainted money from the second accused have not been cogently spoken to by the prosecution witnesses and there are vital and material contradictions which would show that the entire trap operation could have been a stage managed show. Different versions were given by PW2 and PW3 in respect of the execution of the trap. The case of the prosecution that the first accused met PW2 in the bazaar street,Avudaiyar Kovil, Pudukottai District on 23.11.1999 and made the second demand is highly improbable and there is no corroborative piece of evidence to support the testimony of PW2 in this regard.
v) The defence plea taken by the first accused is that PW2-Ismail, who was a friend of Dw1-Tamilarasan, had brought MO1 series to the Office of Accused No.1 to remit the same towards Flag Day collection; that the T.S.O had been instructed to raise flag day contributions and a target had been set for the same by the Government; that remainders were also sent to Accused No.1 regarding the flag day collection; that before the receipt could be issued, the Vigilance and Anti-corruption police entered the office. The answers elicited from the prosecution witnesses and also the evidence adduced through the defence witness would clearly probablize the defence case of the first accused.

10. Citing the above said points, the learned senior counsel argued that the Court below committed a grave error in convicting the first accused while acquitting the second accused and that the judgment of the Court below convicting the first accused and the order of sentence are liable to be interfered with and set aside by this Court.

11. Pet contra, the learned Additional Public Prosecutor submitted that the Court below, taking into account the fact that there was no evidence to the effect that the second accused ever made any demand and the further fact that without knowing the purpose for which the amount had been brought by PW2, the second accused received it, that too on the instructions of the first accused, rightly held him not guilty of the offences as there was absence of mens rea; that on the other hand, since the demand as well as receipt of the bribe money by the first accused through the second accused has been proved by the prosecution by reliable evidence beyond reasonable doubt, the Court below rightly convicted the first accused for the offences under Section 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and that hence the well considered judgment of the trial Court deserved no interference by this Court.

12. This Court paid its anxious consideration to the submissions made on either side and also took into consideration the evidence available on record.

13. As rightly contended by the learned senior counsel for the accused, excepting the testimony of PW2, there is no other evidence to corroborate his testimony that the Accused No.1-Kanagaraj made the demand for payment of illegal gratification on 18.11.1999 and 23.11.1999. In this regard, apart from there being absence of any other witness speaking about the alleged demand made by the first accused Kanagaraj, the learned Senior counsel has also pointed out the fact that it is highly improbable for PW2-Ismail to have presented the application for correction in the family card. PW2-Ismail is not the head of the family, in respect of which the family card had been issued; Nor was he a member of the family. The family card produced as Ex.P8 relates to the family of one Pakir Masthan. He is said to be the co-brother of PW2. The 4th name found therein had been originally printed as "Jalak Khan". The same has been corrected to "Jalik" by an endorsement made by the Taluk Supply Officer on 26.11.2009. The application for correction of name in Ex.P8 Family Card is Ex.P2. It was signed by PW6 Jalik on 17.11.1999. An endorsement in the said application to the effect that the name has been corrected was made by the first accused on 26.11.1999. The register for applications has been produced as Ex.P2 and the entry in it relating to the receipt of the application of PW6 Jalik has been marked as Ex.P17.

14. According to PW2, he himself prepared the application, got it signed by PW6 and submitted in the office of the Taluk Supply Officer for effecting correction of the name of PW6. In this regard Pw6 corroborates the evidence of PW2 to some extent. However, there are certain contradictions between the evidence of PW2 and PW6 as to the visits made by them to the office of the Taluk Supply Officer prior to 17.11.1999. It is not the evidence of PW2 that he or PW6 or both went to the office of the Taluk Supply Officer prior to 16.11.1999 for the purpose of getting the name of PW6 corrected in the family card. It is the evidence of PW2 during cross-examination that PW6 Jalik was already employed as cleaner in a Tata Sumo Vehicle and in such circumstances, for getting a driving license for PW6, PW2 himself went to the driving school and asked about the documents required for getting driving license. It is the further evidence of PW2 that he made enquiries in the driving school 1 + months prior to the date of occurrence; that thereafter PW6 alone was sent to the driving school along with the documents; that it was PW6 Jalik who came and informed PW2 that people in the driving school informed that his name had been entered as 'Jalak khan' in stead of 'Jalik' in the family card and the same had to be corrected by submitting the same in the Taluk Office; that PW6 informed the said particulars to PW2 within two days after he made enquries in the Driving School; that immediately thereafter, both PW2 and PW6 went to the Taluk Office and enquired in the Office of the Zonal Deputy Tahsildar where they were asked to go and approach the Taluk Supply Officer and that when they met the Taluk Supply Officer, he asked them to prepare an application and bring it. It is also the evidence of PW2 that he got advise from a person who was standing outside the Office as to how the application had to be written and that thereafter only the application was submitted. If the said evidence of PW2 is compared with the evidence of PW6, the same will show a remarkable deviation.

15. It is not the evidence of PW2 that before 16.11.2009, PW6 along with PW2 went to the Taluk Supply Officer, Avudaiyar Koil for the purpose of getting his name corrected in the family card. On the other hand, PW6 has stated that before 16.11.1999 both of them went to the Office of the Taluk Supply Officer twice and on those occasions, the Taluk Supply Officer was not there. It is not the evidence of PW6 that at any point of time he met the Taluk Supply Officer (A1 Kanagaraj) . On the other hand, the evidence of PW2 is to the effect that within two days after the discrepancy in the family card was pointed out by the people in the Driving School, both of them went to the Office of the Zonal Deputy Tahsildar, where from they were directed to the Office of the Taluk Supply Officer and that on the same day, they met the Taluk Supply Officer and the Taluk Supply Officer asked them to submit an application in writing. This is quite contrary to the evidence of PW6 that he did not meet the Taluk Supply Officer on the two occasions when he went along with PW2 to meet the Taluk Supply Officer.

16. Again there is contradiction regarding the time and date of their going to the Office of the Taluk Supply Officer for the first time and the time gap between the date on which the discrepancy was pointed out by the people in the Driving School and the date on which they went to meet the Taluk Supply Officer in his Office relating to the correction of the name of PW6 in the family card. PW2's evidence is to the effect that within two days after the people in the Driving School pointed out the discrepancy, PW6 informed him and immediately thereafter they went to the Office of the Zonal Deputy Tahsildar and from there to the Office of the Taluk Supply Officer and met the Taluk Supply Officer, whereupon the Taluk Supply Officer wanted them to submit an application in writing. The evidence of PW6 in this regard is that he himself went to the Driving School to make enquiries as to how a Driving License could be obtained; that three days after such enquiry he himself took his Transfer Certificate, Ration Card and Photograph to the Driving School and that the people in the Driving School pointed out the discrepancy in the name and they also informed that the same could be got corrected by approaching the Taluk Office. The same is quite contrary to the evidence of PW2 that 1+ months prior to the occurrence, PW2 went to the Driving School and enquired about the documents required for getting Driving License and that then he sent PW6 to the Driving school along with the documents, whereupon the discrepancy in the name of PW6 was pointed out. It is the evidence of PW2 that he alone went to the Office of the first accused along with the application containing the signature of PW6 and the original Ration card on 17.11.1999 and that PW6 did not accompany him on that day. It is also his evidence that before 17.11.1999 he met the first accused in his office on 16.11.1999 and on that occasion the first accused asked him to submit an application in writing. It is not his evidence that PW6 accompanied him on 16.11.1999. It is also the evidence of PW2 that on 17.11.1999 when the application was submitted, PW6 was not present. However, PW2 would say that he informed the fact that the first accused demanded payment of illegal gratification to PW6 and PW6 said that he had no money. PW6 has denied the same. However, PW5 Chandran who wrote the entries in Ex.P12 Register has stated that on 17.11.1999 totally four applications were received, that Taluk Supply Officer had sent all the four applications to PW5 and that all the applications were in the names of those persons who had come there for submitting the applications. A conjoint reading of evidence of PW2, PW5 and PW6 will cast a doubt in the prosecution case as there is contradiction as to who submitted the application for correction of name in the family card. It should also be noticed that a third person who is neither the head of the family nor a member of the family whose name is found in the family card cannot submit an application for correction in the family card.

17. Let us now consider the evidence regarding the alleged demand made by the first accused Kanagaraj prior to the date of trap. It is the testimony of PW2-Ismail that the first demand was made on 18.11.1999, when he met the first accused in his office and the second demand was made on 23.11.1999, when he accidentally met the first accused in the Bazaar street, Avudaiyar Kovil. As rightly pointed out by the learned senior counsel for the accused there is no other evidence except the oral testimony of PW2 for the proof of the alleged demands made on 18.11.1999 and 23.11.1999. It is to be seen whether the uncorroborated testimony of PW1 regarding the alleged demand made on 18.11.1999 and 23.11.1999 is reliable and will inspire the confidence of the Court. As per the version of PW2 the following are the circumstances in which the above said demands were made:-

"The name of PW6 had been wrongly noted as "Jalak Khan" in Ex.P8 family card, whereas his correct name "Jalik" was found noted in his transfer certificate. For getting a Driving License he had been advised to get his name corrected in Ex.P8 family card to make it in consonance with the transfer certificate. As such PW2 Ismail approached the first accused, who was the then Taluk Supply Officer on 16.11.1999. The first accused asked him to submit an application in the name of PW6. On 17.11.1999, PW2 got the signature of PW6 in the application and submitted the same in the Office of the Taluk Supply Officer, Avudaiyar Kovil on the same day. The said application is Ex.P2. Though PW2 met the first accused and submitted the application on 17.11.1999, no demand was made by the first accused at that point of time and he simply asked PW2 to come on the following day. On 18.11.1999, when PW2 met the first accused for the first time, the first accused demanded payment of a sum of Rs.250/- as illegal gratification. When PW2 expressed his inability to pay the said amount of Rs.250/- as demanded by the first accused, he was informed by the first accused that he could not get the work done without making payment as demanded. Thereafter, on 23.11.1999, PW2 went to Avudaiyar Kovil to meet the first accused and make enquiry regarding the status of the application. But, while he was in the Bazaar Street, he accidentally met the first accused, whereupon, without there being any enquiry from PW2, the first accused made the demand for the second time and informed PW2 that he could not get the work done without paying bribe and asked him to come and meet him with the money the next day or a day after".

18. As pointed out supra, in proof of the alleged demand made on those two dates, there is no evidence excepting the oral testimony of PW2. Of course, he has made such an allegation in Ex.P3 complaint. However, there is lack of coherence in his evidence which shows inbuilt inconsistencies, contradictions and imponderables. In Ex.P3 complaint as well as his evidence in chief- examination, PW2 has stated that after the submission of Ex.P2 application on 17.11.1999, he met the first accused Kanagaraj in his office on 18.11.1999 as directed by him and at that point of time, the first accused made the demand for the first time. The said evidence of PW2 is to the effect that the first accused made the demand while he was in his office. However, when a question was put to him during cross-examination as to whether the other persons occupying the nearby seats in the office knew the demand made by the first accused, PW2 came forward with an altogether new version to the effect that the demand was made while they were discussing in the shadow of a tree outside the office building and in between the office room and compound wall. PW2 has also clearly admitted that he did not state so either in Ex.P3 complaint or in his statement given to the Investigating Officer. That itself will show that PW2 is not a reliable witness and he is capable of changing his version and make improvements in it.

19. Obviously PW2 was not the applicant under Ex.P2 and on the other hand, PW6 who had signed it was the applicant under Ex.P2 application. If at all PW2 would have approached the first accused, the same should have been done on behalf of PW6. PW6 has not corroborated the version of PW2 regarding the alleged demand. He has not even stated that his uncle, namely PW2 informed him of the demand made by the first accused. There is also nothing in Ex.P3 complaint and the evidence of PW2 in chief-examination to show PW6 was apprised of the demand made by the first accused and PW6 on thus being apprised, expressed his inability to pay Rs.250/- as bribe money. However, the evidence of PW2 in the cross-examination is to the effect that on the same day when the first demand was made by the first accused, namely on 18.11.1999 itself, he informed PW6 of the demand made by the first accused and PW6 in turn replied that he did not have the money. The above said version of PW2 is contrary to the evidence of PW6 and also it is in contradiction with what is found mentioned in Ex.P3 complaint. PW6, being the applicant under Ex.P2 application, should have been made the complaint or at least he could have been apprised of the fact that such a complaint was being lodged by PW2. But no such thing happened. As such, the version of PW2 regarding alleged demand made on 18.11.1999 is surrounded with discrepancies, contradictions and improbabilities.

20. The second demand according to PW2 was made on 23.11.1999 when he accidentally met the first accused in the Bazaar Street, Avudaiyar Kovil. According to his own version, he came to Avudaiyar Kovil from his village Karanendhal by bus for the sole purpose of meeting the first accused in his office to make enquiry regarding the status of Ex.P2 application. PW10, the investigating officer has candidly admitted that a person coming from the village of PW2 by bus need not go to the Bazaar Street. PW2 himself has admitted that he could have got down at Taluk Office bus stop itself and that still without getting down at Taluk Office bus stop he came to the Bazaar Street and got down from the bus only at the Bazaar Street. He has also admitted that he had no business in the Bazaar Street. Further evidence of PW2 is that while he was walking alone in the Bazaar Street, the first accused came there in a motor cycle, stopped it near PW2 on seeing him and asked him whether he had brought the money. As rightly contended by the learned senior counsel for the first accused, it is highly improbable that PW2 would have met the first accused in the Bazaar Street on 23.11.1999 and would have made the demand without there being any enquiry made by PW2, more so when PW2 has also asserted that he had no acquittance with the first accused prior to the submission of Ex.P2 application. It is also pertinent to note that even after the alleged second demand, PW2 did not lodge the complaint without delay. He took two days and only on 25.11.1999 Ex.P3 complaint was lodged. In view of the discrepancies, contradictions and imponderables pointed out supra, it can be held that the prosecution has failed to prove the alleged demands made on 18.11.1999 and 23.11.1999 by cogent and reliable evidence.

21.Regarding the alleged demand at the time of trap, the testimony of PW2 and PW3 alone are available. But vital contradictions are found between the versions of PW2 and PW3. When the trap team was organized and an attempt was made on 25.11.1999 to execute the scheme of trap, it proved to be an aborted one since the first accused was not found in the office on 25.11.1999. There are also other contradictions in their version as to how and through whom the fact that the first accused was not there in his office was informed to the trap laying Officer viz., the Deputy Superintendent of Police who was examined as PW9. According to PW2, it was he who directly informed PW9 regarding the absence of the first accused and later on the information received by him that the first accused would not come there after 05.45 p.m. On the other hand, PW3 would say that such information was passed on by PW3 himself to PW9 through another person and that after getting instructions from PW9, they left the place of occurrence. Evidence has been adduced through PW2, PW3 and PW8 Kalaimani that Pws 2 and 3 used a bicycle hired from the cycle shop of PW8 on the date of occurrence (26.11.1999) to cover the distance between the place wherein they were dropped from the police jeep and the Taluk Office. According to PW3, the distance was only + a kilometer. The evidence of PW2, PW3 and PW8 in this regard is far from being believable. PW9 does not say that Pws 2 and 3 hired a bicycle to go to the Taluk Supply Office. PW8 admits that PW2 was not known to him prior to the date of occurrence. However, he would state that though PW2 was not known to him, he chose to allow PW2 to hire cycle from his shop against the admitted practice of not allowing unknown persons to take cycles for hire, that too without even getting the signature of PW2. It is also pertinent to note that the police did not seize any record relating to the hiring of the bicycle even though PW8 was cited and examined as a witness on the side of the prosecution. For the non-production of the records, PW8 has come forward with an explanation that the records had been sold to a waste paper merchant. He deposed before the Court as a witness nearly after a gap of 3 + years from the date of occurrence. This Court wonders how PW8 was able to give the details without even refreshing his memory with the help of records and also in the absence of records. There is also contradiction regarding the amount paid as hire charges. According to PW8, he collected Rs.8/- as hire charges. Pw3 does not state anything in this regard. PW2's evidence in this regard is some what evasive, besides being contrary to the evidence of PW8, as he has stated that he paid Rs.6 or 7 which he could not properly recollect. Moreover, there is not even a scrap of paper to show that PW8 was running a hire-cycle shop. In his deposition sheet his calling has been has been noted as "Cooli". Hence, we have to accept the contention raised on behalf of the accused that PW8 could be a stock witness introduced by the prosecution for strengthening its case.

22. According to prosecution, PW3 was present all along with PW2 on the date of trap and only in his presence, the first accused made the demand for payment of money as bribe. Though they have given the time of such demand as 11.15 a.m, there is contradiction between the evidence of PW2 and PW3 as to where from the said demand was made. According to PW2, when he along with PW3 entered the office of the first accused, he wished him and the first accused in turn asked him whether he had brought the money. His further evidence is that on receiving a reply from PW2 in the affirmative, the first accused rose from his seat, came out of the office room, called the second accused and asked him to receive the amount from PW2; that thereafter PW2 paid the money to the second accused and that only after the money was paid to the second accused, PW2 gave the original family card to the first accused. Contrary to the said version of PW2, PW3 would state that on seeing them the first question asked by the first accused was whether PW2 had brought the family card and then only asked about the money. He does not corroborate the evidence of PW2 that the first accused came out of the office room and asked the second accused to receive the money from PW2. On the other hand, he would state that PW2 attempted to hand over the money to the first accused when the first accused was very much in his seat and at that juncture, the second accused came in between whereupon the first accused asked the second accused to get the money from PW2. PW3 is not a person already known to the first accused. It is highly improbable that the first accused could have made a demand in the presence of a stranger without even asking who he was. Both Pws 2 and 3 have stated that the first accused did not ask anything about PW3 who accompanied PW2. There is also contradiction regarding the manner in which PW2 had been advised to give signal. According to Ex.P5 Mahazar, he was advised to give signal by first unfolding the sleeves of the shirt and again folding it. Contrary to the same, PW2 would say that he was advised to give signal by folding the sleeves and then unfolding them. Besides the said answer given by him in the chief-examination, which is quite contrary to what is found in Ex.P5, during cross-examination PW2 has denied that he was asked to give signal by doing the opposite, namely first unfolding the sleeves and then folding them as found in Ex.P5. PW3's evidence regarding advise tendered to PW2 is quite contrary to the evidence of PW2. But the same is in consonance with Ex.P5. There is also a contradiction between the versions of PW2 and PW3 as to whether the first accused left his seat in the office room before the second accused received the money from PW2 and entered the room after such receipt. According to the evidence of PW2, the first accused came out of the office room and while he was at the entrance of the office room outside the office room, he asked the second accused to receive the money from PW2; then he got the family card from PW2, thereafter entered the office room, placed the ration card on his table and then left in his motor cycle stating that he was going out for tea. Per contra, it is the evidence of PW3 that till the payment was made to the second accused and Ex.P8 family card was received and placed on his table by the first accused, he did not rise from his seat and leave the office and that only after placing the family card on his table, he rose and left the office in his motor cycle stating that he was going for tea. It is also pertinent to note that PW2 did not choose to give the signal to PW9 immediately after the amount was received by the second accused on the instructions of the first accused. On the other hand, he waited for about an hour for the first accused to get the name of PW6 corrected in Ex.P8 family card, got it back from the first accused after the correction was carried out and then only went out and gave the signal. It gives room for a strong suspicion regarding the genuineness of trap. It can even probablize the theory that the entire trap can be a stage managed show, especially in the light of the explanation offered by the first accused.

23. As per the explanation offered by the first accused, one Tamilarasan, a person known to the first accused as well as PW2 had promised to collect flag day contribution. The said Tamilarasan in turn had asked PW2 to help the first accused in the collection of flag day contribution. PW2 who met Tamilarasan subsequently informed him that he had made collection for flag day contribution and asked him what to do with the same. Tamilarasan asked PW2 to go in person and hand it over to the first accused and get a receipt for the same. The said money was paid by PW2 on the date of occurrence, namely 26.11.1999. While the first accused was about to write the receipt for the same and before ever he could write it, the vigilance and anti-corruption police came there and caught him and implicated him in the case without accepting the explanation offered by him. A total sum of Rs.485/- was found with the first accused. Out of the said amount, only a sum of Rs.250/- consisting of two hundred rupee notes and one fifty rupee note have been produced as MO1 series implying that the same was the bribe money received by the first accused. Though the balance amount of Rs.235/- consisting of two hundred rupees notes, three ten rupees notes and one five rupee note, admittedly belong to the first accused, the same was also seized along with the MO1 under Ex.P9 mahazar and produced as Mo6 series.

24. The above said Tamilarasan while deposing as DW1 has fully supported the defence version. It is his clear testimony that he had requested PW2 to collect contribution for flag day to help the first accused; that when PW2 met him after a gap, he informed DW1 that he had collected some amount for the flag day and asked him what should be done with the same and that DW1 asked him to hand over the same to the first accused and get a receipt for the same and that when he met PW2 again after the occurrence by which time PW2 had got the news about the occurrence, he asked PW2 why he had done such a thing for which PW2 replied that the circumstances made him to do so. The then District Supply Officer, Pudukottai District Ms.Vijayalakshmi has deposted as DW2. From her evidence it comes to light that a target had been fixed for each Taluk Supply Officer regarding Flag Day collection and the target fixed for Avudaiyar Kovil Taluk Supply Officer was Rs.3000/-. The file relating to the instructions given to the Taluk Supply Officers by the District Supply Officer is Ex.D1. The entry relating to Taluk Supply Officer, Avudaiyar Kovil fixing the target is found in Page 13 of the file and it has been marked as Ex.D2. As per Ex.D2, Rs.3000/- was fixed as the target for the Taluk Supply Officer, Avudaiyar Kovil. The receipt book supplied for making flag day collection was recovered from the table of the first accused and it has been marked as Ex.P11. Dw2 confirms the said receipt book to be the one supplied to the Taluk Supply Officer, Avudaiyar Kovil, with reference to the receipt numbers found therein. A copy of the reminder letter dated 11.03.1999 directing that the Taluk Supply Officers should achieve at least 50% of the target in making flag day collection has been produced and marked as Ex.D3. It was followed by another reminder letter dated 02.04.1999, a copy of which has been marked as Ex.D4. Three more reminder letters dated 26.04.1999, 11.10.1999 and 01.11.1999 found at Pages 41, 97 and 113 have been marked as Exs.P5, P6 and P7 respectively. From the above said testimony of DW2 and the documents referred to above, it is obvious that a target of Rs.3000/- had been fixed as Flag Day collection to be made by the Taluk Supply Officer, Avudaiyar Kovil. From the particulars found in Ex.P11, a total sum of Rs.550 alone had been collected (Rs.50/- on 05.04.1999 and Rs.500/- on 16.09.1999).

25. From Ex.P10 Attendance Register, it is obvious that upto 20.10.1999, the first accused Kanagaraj was functioning as Regional Deputy Tahsildar (kz;ly Jiz tl;lhr;rpah;) and only thereafter, he took charges as Taluk Supply Officer. That is the reason why under both the receipts, the predecessor of first accused had collected the amount. There is also evidence to the effect that after his assumption of office as Taluk Supply Officer, Avudaiyar Kovil, the first accused did not make any collection towards flag day contribution till the date of occurrence. Repeated reminders had been sent from the District Supply Officer for reaching at least 50% of the target. The target fixed was Rs.3000/- whereas collection made was only Rs.550/-. Hence, it is apparent that the first accused was under pressure to collect flag day contribution. It makes the evidence of Dw1 Tamilarasan probable that he wanted to help the first accused in making flag day collection and he requested PW2 to do the same. An overall consideration of the evidence adduced on the side of the prosecution and also the evidence adduced on the side of the accused will make the defence theory a probable and plausible one. The burden of proof of the defence plea is not as strong as the burden cast on the prosecution to prove the guilt of the accused. An accused can prove his defence theory by preponderance of probabilities, whereas the burden on the prosecution is heavier than the one cast on the accused since the prosecution is expected to prove it beyond reasonable doubt.

26. Both PW2 and PW3 have clearly admitted that on 25.11.1999 and on 26.11.1999 when they went to the office of the first accused they were accompanied by police. PW2 had stated that on 26.11.1999, also a police constable in mufti holding a walkie-talkie came to the office of the Taluk Supply Officer. PW3 has also admitted that on 26.11.1999, as it was done on the previous day police constables also came along with them to the Taluk Supply Office. If it was so, it is highly improbable that the accused would have made a demand in the presence of PW3 and also in the presence of the police man with walkie-talkie. Pws 2 and 3 have admitted the presence of police personnel with walkie-talkie in the office of the first accused at the time of making payment of money to the second accused on the instructions of the first accused. But it is surprising to note that no one has come forward to state that the policeman with walkie-talkie informed the same to the Deputy Superintendent of Police, namely PW9. There are also discrepancies regarding the place from where Ex.P12 receipt book and Ex.P2 application were recovered. PW3's evidence is that Ex.P10-Attendance Register, Ex.P12-Petition Register and Ex.P11-Receipt book were recovered from the table of the first accused Kanagaraj and that all those registers were found on the table of the first accused Kanagaraj. However, he has also given another version which is in contradiction with the above said version. The said contradictory version is that the receipt book was not on the table of the Accused No.1 and on the other hand, the same was in the table drawer and Accused No.1 took it out and gave it to the Deputy Superintendent of Police. The evidence of PW9 is not specific in this regard. He has simply stated that Attendance Register, petition register and Flag Day collection receipt book maintained in the office of the first accused were recovered. On the other hand, the evidence of PW4-Anantha Krishnan, the then Regional Deputy Tahsildar, Avudaiyar Kovil shows that a common attendance register was maintained and the same was in the custody of the Head Quarters Tahsildar; that Ex.P10 Attendance Register was recovered from the Taluk Office; that Ex.P2- Application and Ex.P12-Petition Register were recovered from one PW5-Chandran, who was working as Junior Assistant under the first accused and that Ex.P11 Receipt Book alone was recovered from the table of the first accused Kanagaraj. Therefore, the very story of trap is not free from suspicious circumstances. The above said infirmities and discrepancies will give a reasonable suspicion that the trap itself could have been a stage managed show.

27. It is also the admission of the prosecution witnesses that there were a number of persons employed in the very same office who were present during the entire episode. But no body has come forward to speak about the alleged demand and receipt of bribe by the first accused. It is also highly improbable that the first accused, unmindful of the presence of others, would have chosen to make a demand and receive bribe in their presence. Further more, the evidence of PW2 is to the effect that on receipt of MO1 series (Rs.250/-) from PW2, the second accused put it in his shirt pocket and that when the first accused returned to the office after going out for taking a cup of tea, he got the money from the second accused and put it in his shirt pocket. PW2 does not say whether the second accused on receipt of the money from PW2 and subsequently the first accused on receipt of the money from the second accused counted the same before putting it in their respective pockets. He did not say whether only one hand, if so which hand was or both hands were used by the second accused and the first accused. On the other hand, PW2 has stated he could not say by which hand the second accused Ameer Ali received the money from PW2-Ismail. However, he would say that second accused Ameer Ali handed over the money with his left hand to the first accused Kanagaraj. Which hand was used by the first accused for receiving money has not been spoken to. PW2 would say that the entire amount of Rs.235/- had been folded together and kept in the shirt pocket of the first accused. It is also his evidence that neither the first accused nor the second accused counted the money. The evidence of PW3 is to the effect that when phenolphthalein test was conducted for both the hands of A1 and A2 using Sodium Carbonate solutions prepared in separate glass tumblers, the sodium carbonate solution, in which the right hand fingers of A1 Kanagaraj were dipped, did not show any change in colour, whereas the Sodium Carbonate solution in which his left hand fingers were dipped turned pink. Similarly according to his version, the sodium carbonate solution in which the right hand fingers of the second accused Ameer Ali were dipped did not show any change in colour whereas the sodium carbonate solution in which left hand fingers were dipped turned pink. If it is so, both the accused A1 and A2 should have handled the money only using their left hands. Similarly, according to him, when the shirt pockets of both A1 and A2 were subjected to phenolphthalein test, the sodium carbonate solutions turned pink. The containors of sodium carbonate solutions with the markings have been produced as Material objects M.O 2 to 7. They are as follows:

A1 R - Right hand of first accused - MO2 A1 L - Left hand of first accused - MO3 A2 R - Right hand - MO4 A2 L - Left hand - MO5 A1 B - Shirt of first accused - MO6 A2 B - Shirt of second accused - MO7 Pws 4 and 9 also have given the same version. If it is so, how the solutions found in MOs 2 and 4 came to be found with phenolphthalein has not been explained. The Scientific Assistant Thamaraiselvan has been examined as PW7. He would state that even before subjecting the solutions to chemical examination, they were found with pink tint. The evidence of PW7 and his report Ex.P19 show that in the solutions sent to the laboratory which have been marked as MOs 2 to 8, both Sodium Carbonate and phenolphthalein were found present. There is no explanation as to how all the solutions had turned pink and found to contain phenolphthalein.

28. We have seen that the prosecution has not proved by sufficient and reliable evidence that there was demand. In the absence of proof of demand, even though the receipt of money has been admitted, the presumption under Section 20 of the Prevention of the Corruption Act will not get attracted. In V.Venkata Subbarao V. State represented by Inspector of Police reported in (2006) 13 SCC 305, the Apex Court has made the following observations:

"24..........In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:
20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under Section 7 or Section 11 of clause (a) or clause (b) of sub-section (1) of Section 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other persons, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
25.Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution.
26. In M.S.Narayana Menon v. State of Kerala, this Court held:(SCC p.55, para
45) "Moreover, the onus on an accused is not as heavy as that of the prosecution.

It may be compared with a defendant in a civil proceedings."

The same has also been followed in a number of judgments by this Court and it is not necessary to cite all those judgments.

29. In a recent case in "State of Maharashtra Vs.Dnyaneshwar Laxman Rao Wankhede" reported in (2010) 2 Supreme Court Cases (Cri) 385, the Hon'ble Surpreme Court has made the following observations:

"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, However, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

30. If the inconsistencies, contradictions and discrepancies pointed regarding the alleged demand leading to an inference that the prosecution miserably failed to prove its case of demand of bribe is considered in the light of the emphatic pronouncement of the law in this regard, the necessary conclusion that can be arrived at shall be that the presumption contemplated under Section 20 of the Prevention of Corruption Act does not get attracted to the case on hand. Even assuming that the presumption under Section 20 of the Prevention of Corruption Act would get attracted because of the admission of receipt of the money either directly from PW2 or through the second accused, such a presumption shall be a rebuttable presumption. The burden of rebutting such presumption is not as heavy as that of the prosecution to prove its case. The accused can rebut it by preponderance of probabilities. In this regard, the observations made by Hon'ble Apex Court in Trilok Chand Jain V. State of Delhi reported in AIR 1977 SC 666 can be noticed. The Hon'ble Apex Court has made the following observations:

8.......The presumption summation however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under Section 342 Cr.P.C may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour, is not necessary for him to establish his case beyond a reasonable doubt."

31. Again when the accused has came forward with an explanation which is plausible and has also shown that such an explanation is probable by cross- examining the witness examined on the side of the prosecution and also by adducing evidence on his side, then the Court has to accept his explanation and hold that the presumption contemplated under Section 20 of the Prevention of Corruption Act would stand rebutted. In this case, the first accused has offered an explanation that a target had been fixed for the Taluk Supply Officers for collection of Flag Day Contribution, that a common friend of the first accused and PW2 requested PW2 to help the first accused in collecting the Flag Day contribution; that such Flay Day contribution collected by PW2 alone was paid by him on 26.11.1999, that too on the instructions of the common friend Tamilarasan and that when he had taken out the receipt book and was making preparations to prepare the receipt, vigilence and anti-corruption police came and caught him and recovered the money. In the light of the discrepancies pointed out earlier found in the evidence of the prosecution, the said explanation is plausible. PW3, the shadow witness would admit that though the amount was received by the second accused from PW2, he did not know the purpose for which he received it. We have also seen that there are vital contradictions regarding from where the receipt book was seized. If at all the accused did not give an explanation as to what for and under what circumstances he received the money, there would not be any necessity to seize Ex.P11 receipt book. It seems neither the Investigating Officer nor the sanctioning authority considered the explanation offered by the first accused. The proceedings of PW1 does not find a place in the list of documents considered by the sanctioning authority. The above said Tamilarasan has deposed as a witness (DW1)on the side of the accused and supported the defence version of the second accused. It stands corroborated by the evidence of DW2, the District Supply Officer, regarding fixation of target for collection of Flag Day contribution, sending of remainder letters and at last after the occurrence sending a letter under Ex.D8 directing submission of the unused receipt book to Ex-service Welfare Society. The first accused who became the Taluk Supply Officer of Avadaiyar Koil, at the last lap of the said period was under pressure and only in order to help him, DW1 had arranged collection through PW2 and PW2, for the reasons best known to him, has chosen to make arrangements for traping the first accused. It is also pertinent to note that a meagre sum of Rs.250/- alone is said to be demanded and accepted as bribe which also makes it improbable.

32. When the second accused was also prosecuted along with the first accused and the second accused, in whose presence allegedly the demand was made and who had been asked to receive the amount on behalf of the first accused, was acquitted by the trial Court, the state has not chosen to prefer any appeal against his acquittal. Though the first accused cannot be stated to be placed in a better position than the second accused or on the same footing, the same shall also be a factor to be taken into consideration in deciding whether the prosecution case has been proved beyond reasonable doubt. From the evidence adduced, if two views of equal force are possible one in favour of the accused and another in favour of the prosecution, then the Court should prefer the first one. If the said principle is applied, this Court can come to the conclusion that the first accused has come forward with a plausible explanation for the meagre sum of Rs.250/- received by him and such defence theory has been made probable and proved by preponderance of probabilities, whereas the prosecution has failed to prove its case beyond reasonable doubt. In view of the same, this Court comes to the conclusion that the judgment of the Court below convicting the first accused for the offences under Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988 is to be termed discrepant and infirm which is liable to be reversed and set aside.

33. For all the reasons stated, the criminal appeal is allowed and the order of the Chief Judicial Magistrate-cum-Special Judge under the Prevention of Corruption Act, 1988, Pudukottai dated 03.08.2005 made in Special C.C.No.3 of 2000 is set aside, both in respect of conviction and punishment. The appellant/first accused is acquitted of the offences with which he stood charged and he is set at liberty. Fine amount collected, if any, shall be refunded. The bail bond executed shall stand cancelled.

gpa To

1.The Chief Judicial Magistrate-cum-Special Judge under the Prevention of Corruption Act, 1988, Pudukottai

2.The Deputy Superintendent of Police Vigilance and Anti-corruption Pudukottai