Madras High Court
Pudukkottai V & Ac) vs R.Ravichandran on 13 April, 2016
Crl.A.(MD).No.174 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 20.12.2023
Conviction On 18.04.2024
Punishment On 25.04.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.174 of 2017
The State represented by
The Public Prosecutor,
High Court, Madras.
(Crime No.8 of 2012 of
Pudukkottai V & AC) ... Appellant
Vs.
R.Ravichandran ... Respondent
PRAYER: Criminal Appeal filed under Section 378 (1)(b) of the Criminal
Procedure Code, to allow this appeal and set aside the judgment of
acquittal of the respondent passed by the learned Special Judge and Chief
Judicial Magistrate, Pudukkottai in Spl.C.C.No.4 of 2013 dated
13.04.2016.
For Appellant :Mr.P.Senthil Kumar
Additional Public Prosecutor
For Respondent : Mr.C.Muthu Saravanan
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JUDGMENT
This Criminal Appeal has been filed against the judgment in Spl.C.C.No.04 of 2012, passed by the learned Special Judge/Chief Judicial Magistrate, Special court for prevention of Corruption Act, Pudukkottai dated 13.04.2016.
2. When the Respondent was working as special sub inspector of police, he has demanded and accepted illegal gratification of Rs.10,000/- as monthly mamool from P.W.5 and hence the appellant registered the case, investigated and filed final report under Sections 7 and 13(1)(d) r/w 13 of Prevention of Corruption Act and the learned Special Judge by the impugned order dated 13.4.2016 in Special Case No.04 of 2012 acquitted him. Aggrieved over the same, the State preferred the present Criminal Appeal against the acquittal.
3. P.W.5 is a resident of Virali Malai. He was running a lorry service at Virali Malai and truck cleaning work in his name and his son's name. He owned six vehicles ie., lorry, tipper lorry etc. On 29.11.2012, at 09.30 hrs, P.W.5 was informed that the Inspector of Police namely Ravichandra 2/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Prasad attached to Viralimalai Police Station, registered a case against his vehicle bearing registration No.TN-04-M-3569 and his son's vehicle bearing registration No.TN-45-V-9121, with allegation that the said vehicles were involved in the illegal transportation of sand. According to P.W.5, the said Inspector seized the empty vehicle and he asked the Inspector of Police about registering of false case and the Inspector got angry. Hence,the respondent special sub inspector of police attached to the said station asked P.W.5 to meet him after 4 days. Therefore, on 04.12.2012 at about 09.00 p.m., P.W.5 met the respondent and enquired about the vehicle. At that time, he has demanded a sum of Rs.10,000/- as mamool, otherwise they would register a false case and would ruin the business. Therefore, unwilling to pay the bribe, on 05.12.2012, P.W.5 went to the vigilance office and gave a complaint(Ex.P.7). P.W.10 after verifying the complaint registered the FIR Ex.P.14 under Section 7 of the Prevention of Corruption Act, in Crime No.8 of 2012. Thereafter, he enquired with P.W.5 about the trap money and called two official witnesses namely P.W.7 and another person by name Ravi Krishnan. P.W.10 demonstrated the phenolphthalein test to P.W.5 in the presence of the official witnesses and explained the significance of the said test. Thereafter, he asked his 3/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 subordinate to smear phenolphthalein powder over the currency brought by P.W.5 and kept it in his pocket and directed to hand over to the respondent on his demand and with further direction to give signal upon receipt of the said amount. Thereafter, P.W.10 prepared entrustment mahazar, the same was attested by defacto complainant P.W.5 and the two official witnesses. Thereafter, P.W.10 and the team reached the police station of the respondent. P.W.10 instructed P.W.5 and P.W.6 to go to the police station and give a signal, if the respondent received the bribe amount. They went to the Police Station and met the respondent. The respondent enquired about the presence of P.W.6. He asked them to meet near Iyankar Bakery. He went to Iyankar Bakery and both P.W.5 and P.W.6 also went to Iyangar Bakery and met the accused and the accused reiterated the demand and received the bribe amount. After that, P.W.5 gave the signal. Upon the receipt of signal, P.W.10 and his team surrounded the appellant and brought the appellant to the police station. In the police station, they conducted the test in the hands of the appellant and the wash turned pink. Hence, they confirmed the receipt of the bribe amount and enquired about the receipt of the tainted currency from P.W.5. The appellant confessed that he received and put it in his pant pocket. He 4/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 took the currency notes from his pant pocket. Thereafter, P.W.10 conducted the phenolphthalein test in the pant pocket of the appellant after giving alternate dress and the said wash also turned into pink colour. Thereafter, he collected the solution in the separate bottles and sealed the same and also obtained the signature on the solution bottle from the respondent.
4. P.W.10 prepared recovery mahazar, sketch and seized documents from the custody of the respondent. Thereafter he informed to P.W.11 about the arrest of the respondent at 22.10 hrs. On the following day 06.12.2012 at 09.30 a.m., P.W.10 handed over the investigation to P.W.12. P.W.12 after receipt of the report from P.W.10 continued the investigation by examining the witnesses and also collected documents. On 08.05.2013, due to his transfer, he entrusted the records to the Deputy Superintendent of Police P.W.13. Thereafter, investigation was conducted by P.W.13. After receipt of the documents P.W.13 examined all the witnesses and obtained sanction and filed the final report before the learned Special Judge and the same was taken on file in Spl.C.C.No.4 of 2013.
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5. The learned Special Judge, after serving the copies under Section 207 of Cr.P.C., to the respondent, framed the necessary charges. After framing necessary charges, he questioned the respondent/accused and he denied the charges and pleaded not guilty. Therefore, he stood for trial. To prove the case of the prosecution, they examined P.W.1 to P.W.13, exhibited Ex.P1 to Ex.P17 and marked M.O.1 to M.O.5.
6. The learned trial Judge questioned the respondent under section 313 Cr.P.C by putting incriminating materials available against him. The respondent denied the same as false and on the side of respondent, no material documents were produced and no oral evidence was let in. He filed detailed explanation. The learned trial Judge, after considering all the materials and documents, acquitted the respondent of all the charges by the impugned judgment dated 13.04.2016. Aggrieved over the same, the State preferred the present Criminal Appeal on the grounds stated in the memorandum of grounds of appeal.
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7. The learned Additional Public Prosecutor reiterated the grounds stated in the Memorandum of grounds and made the following elaborate submissions:
(i)The learned trial Judge without properly considering the relevant materials, erroneously acquitted the appellant. When the evidence of the prosecution clearly proved the offence under Sections 7 and 13 (1)(d) of the Prevention of Corruption Act, the learned trial Judge ought to have convicted the respondent/accused.
(ii)The learned Additional Public Prosecutor further submitted that when the evidence of P.W.5 and P.W.7 official witnesses clinchingly proved that respondent demanded and accepted the bribe of Rs.10,000/- as monthly mamool from P.W.5 in order to allow him to continue his transport business without any hitch, the learned trial Judge ought not to have acquitted the appellant.
(iii) The learned trial Judge wrongly acquitted the respondent on the erroneous finding that the sanctioning authority has not applied his mind 7/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 according the sanction, the said reasoning of the learned trial Judge is not correct, when sanctioning authority clearly deposed about his application of mind to grant the sanction to prosecute the respondent.
(iv) The learned trial Judge further held that before granting sanction P.W.1 had a discussion with the investigating officer and failed to find out some discrepancies in Ex.P.9 relating to the name of the accused which was not noted by the investigating officer.
(v)The learned Additional Public Prosecutor further submitted that in Ex.P9, instead of mentioning the name of the accused as Ravi Chandran, the name of the defacto complainant “subramaniam” has been mentioned. According to the trial judge, the said error proved non-
application of mind in according Sanction. The said finding of the learned trial judge without considering the entire evidence of P.W.1 is not correct. Further, it is observed by the trial Court that the sanctioning authority earlier had a discussion with the investigating officer before according sanction and hence, there was no independent application of mind. The investigating officer discussing with the sanctioning authority relating to 8/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the material collected during the investigation is not a ground to presume that P.W.1 sanctioning authority failed to apply his mind.
(vi)The learned trial Judge gave a finding that the demand was not proved by the prosecution without properly appreciating and analyzing the testimony of P.W.5 and P.W.7.
(vii)The learned trial Judge has given much importance to irrelevant facts, which had not affected the substratum of the prosecution case. In this case, the fundamental facts namely the demand and acceptance were clearly proved beyond reasonable doubt. There is no evidence of rebuttal on the side of the respondent to substantiate his case and there is no explanation till the completion of the trial about his handling of tainted currency and positive phenolphthalein test and there was no evidence of any plea of alibi. In the said circumstances, the learned trial Judge committed error in acquitting the respondent when the prosecution clearly established the demand and acceptance beyond reasonable doubt, from the evidence adduced. The prosecution established that the respondent demanded and accepted the illegal gratification of Rs.10,000/- as monthly 9/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 mamool from P.W.5. The appellant established the case as per the parameters projected by the Hon'ble Supreme Court to interfere in the unmerited acquittal.
8.The submission of the learned counsel for the respondent:
(i) to sustain the conviction under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, demand and acceptance have to be proved by the prosecution beyond reasonable doubt on the basis of the unimpeachable testimony of the prosecution witnesses. In this case, to prove the demand, the prosecution relied on the testimony of P.W.5 and P.W.7. The learned trial Judge, disbelieve the said testimonies by giving cogent reasons. According to the prosecution, the demand was made on various occasion i.e., on 04.12.2012, 05.12.2012. The learned trial Judge, has held that evidence of P.W.5 that the accused demanded bribe amount on 04.12.2012 is not corroborated by any other evidence. The learned trial Judge further has held that the presence of P.W.6 itself is doubtful as he has not deposed clearly about the place of occurrence ie., place where the amount was reiterated. The said factual aspect was made based on appreciation of the fact. Therefore, this Court has no jurisdiction to 10/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 interfere with the same in the case of the appeal against acquittal. Apart from the above, the prosecution never established any circumstances, to infer the allegation of demand. The respondent neither registered a case against P.W.5 nor investigated any case registered against P.W.5 and his son. Therefore, the prosecution miserably failed to prove the demand and any of the official relationship between the registration of the case by P.W. 7 and the respondent. Therefore, there is no compelling reason to interfere with the acquittal judgment passed by the learned trial Judge. The learned trial Judge, upon consideration of the material discrepancy between the evidence of P.W.5, P.W.7 and P.W.10 has held that the prosecution failed to prove the demand and acceptance. The learned trial Judge also considered the motive on the part of P.W.5 to implicate the respondent in the above case. The learned trial Judge, also considered the total non application of mind by the sanctioning authority in according the sanction to prosecute the respondent i.e., the sanctioning authority discussing about the case with the investigating officer and failing to see the discrepancy in the name of the accused in various material documents submitted before sanctioning authority. The learned trial Judge also considered the discrepancy between the evidence of P.W.7 and P.W.10 relating to the 11/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 place of the occurrence i.e., one witness deposed that occurrence had taken place in between the Manaparai road and Iyyangar Bakery and another witness saying occurrence was in front of Iyyangar Bakery. Hence, in all aspect the learned trial judge considering the principles laid down by the Hon'ble Supreme Court acquitted the accused/respondent. Therefore, there is no reason to allow the appeal against acquittal. Once, the learned trial Judge on appreciation of P.W.5 and P.W.7, has held that demand was not proved, the appellate Court's power to interfere with the said finding is very much limited. Therefore, this Court has no jurisdiction to interfere with the said finding of the learned trial Judge holding that the prosecution miserably failed to prove the demand. Hence, he seeks for dismissal of this appeal.
9. Now the question which arise in this appeal is whether the learned trial Judge is correct in acquitting the respondent of the offence under Section 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988? 12/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
10. Discussion on the finding of the learned Trial Judge:
10.1.The learned trial Judge's finding about sanction:
According to the learned Judge, P.W.1 has not accorded the sanction in accordance with law and he has accorded sanction without application of mind. According to the Learned trial Judge, Superintendent of Police/Sanctioning Authority and investigation Officer have discussed the matter on 21.06.2013 before granting sanction and therefore there is no independent application of mind. From the prosecution case, there are two versions. One is accused Officer and P.W.6 had detained the lorry of the defacto complainant at “Shanmuga Nagar, Paraipatti Village” and in the FIR there is another version that inspector of Police, P.W.2 and another constable detained the lorries at “Pudukottai to Viralipatti bypass road”. The said contradiction was not considered by the sanctioning authority. Further there are some discrepancies in the recovery mahazar about the name of the accused officer. P.W.1 without properly considering the same accorded sanction and hence the sanction order suffers from non- application of mind. Taking into consideration the above three facts, the learned trial Judge has held that the P.W.1 granted sanction in routine manner without application of mind there by serious prejudice has been 13/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 caused and in result the sanction order is not valid in the Eye of law.
10.1.1.Before making further deliberation on the finding of the learned trial Judge regarding non application mind while according sanction, this Court has a duty to find out the meaning of “sanction” and precedents relating to the accord of sanction. The word ‘sanction’ has not been defined in the Code of Criminal Procedure.
Dictionary Meaning
Webster's Third New Internal Explicit permission or recognition
Dictionary by one in authority that gives
validity to the act of another
person or body; something that
authorizes, confirms, or
countenances.
The New Lexicon Webster's Explicit permission given by some
Dictionary one in authority.
The Concise Oxford Dictionary. Encouragement given to an action
etc., by custom or tradition;
express permission, confirmation
or ratification of a law etc;
authorize, countenance, or agree
to (an action etc.)
Stroud's Judicial Dictionary Sanction not only means prior
approval; generally it also means
ratification.
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Crl.A.(MD).No.174 of 2017
Words and Phrases— The verb ‘sanction’ has a distinct
shade of meaning from ‘authorize’
and means to assent, concur,
confirm or ratify. The word
conveys the idea of sacredness or
of authority.
The Law Lexicon by Ramanath Prior approval or ratification.
Iyer Rameshwar Bhartia Vs. State of Sanction is in the nature of Assam reported in 1952 2 SCC permission.
203, the Hon'ble Supreme Court has stated that 10.1.2. In Om Prakash v. State of U.P., 2001 SCC OnLine All 818 at page 1248. Hon'ble Mr.Justice G.P.Mathur (as he then was) made detailed discussion on this aspect and finally held that
6..... The word ‘sanction’ has been used as a “verb” and therefore it will mean to assent, to concur or approval. 10.1.3. Therefore, in the considerable opinion of this Court, sanction is the independent act of sanctioning authority with due application of mind over the material forwarded by the investigating agency to prosecute the accused before the Court of law under the penal provision constituting the offence.
15/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 10.1.4.The Hon'ble Supreme Court in State of Maharashtra v. Mahesh G. Jain, reported in (2013) 8 SCC 119 after considering the various decisions of the Hon'ble Supreme Court reported in AIR 1958 SC 124, AIR 1979 SC 677, 1995 6 SCC 225, 2005 4 SCC 81, 2006 12 SCC 749, 2007 11 SCC 273, 2011 1 SCC 491, has expounded the following principles of law governing the validity of sanction:
“14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.16/92
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.”
11.The respondent /accused officer the Special Sub Inspector of Police was working in Viralimalai police station during the relevant period of occurrence. He has been specially deputed to look after the Court proceedings. That being the situation, on 29.11.2012, P.W.2/Inspector of Police of the said Viralimalai Police Station, registered the case against the two lorries belonging to the defacto complainant/P.W.5 and his son alleging that there was illegal transportation of the sand for the reason that P.W.5 had not paid Dewali Mamool. P.W.5 approached the station to question the said false case. At that time, on 04.12.2012, at 09.00 pm, the 17/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 respondent /accused Officer demanded a sum of Rs.10,000/- as a monthly mamool (periodical payment of bribe) for himself and on behalf of the Inspector of Police and asked to pay on 05.12.2012. Therefore, P.W.5 approached the Vigilance department and the Vigilance department registered the case and thereafter conducted the trap when the respondent received the bribe amount from P.W.5 in the presence of P.W.6/the official witness. The trap laying officer/P.W.12 also clearly stated the same thing cogently before the investigating officer/P.W.13. In the said circumstances, P.W.13/investigating officer recorded the statement of witness under 161 Cr.P.C., and collected all the documents and placed the same before P.W.1, sanctioning authority namely the Superintendent of Police. P.W.1 accorded sanction by issuing the sanction under Ex.P.1. In the sanction order, it is clearly stated that he perused the documents and also the files produced by the investigation officer and came to the conclusion that there were sufficient materials to prosecute the respondent for the offence under Section 7 and 13 (1)(d) of the Prevention of Corruption Act. The material portion of Ex.P1 is as follows:
v/br/ckh. khtl;l fhty;
fz;fhzpg;ghsh;. g[Jf;nfhl;il vd;gtuhfpa vdf;F rpwg;g[ cjtp Ma;thsh; utpr;re;jpud;
vd;gtiu gjtpapypUe;J ePf;Ftjw;F mjpfhuk;
18/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 cs;sJ/ ,J rk;ge;jkhf CHy;
jLg;g[ fz;fhzpg;g[j;Jiw ,af;Feh; mth;fspd;
fojk; e/f/vz;/242-12-fhty;-gp/nf-
ehs;/18/6/2013d; go tprhuiz mjpfhhpahy; vd;
Kd;ghf jhf;fy; bra;ag;gl;l ,t;tHf;fpd;
Kjy; jfty; mwpf;ifapd; efy;.
ifg;gw;wg;gl;l jla';fs;. bghUl;fs;. kf$h;
rhl;rpfsplkpUe;J Fw;w tprhuiz
rl;lg;gphpt[ 161(3)y; gjpt[ bra;ag;gl;l
thf;FK:y';fspd; efy;fs;. Vjphpfspd;
thf;FK:y efy;fs; mwpf;iffs;. ,urhadk;
ghpnrhjid mwpf;if kw;Wk; bjhlh;g[ila
Vida gjpntLfs; Mfpatw;Wld; ,af;Feh;.
CHy; jLg;g[ kw;Wk; fz;fhzpg;g[j;Jiw
brd;id mth;fspd; mwpf;ifa[ld;. Vjphpfspd;
kPjhd g[fhh; kw;Wk; tHf;Fj; bjhlh;tjw;fhd
N:He
; piy Fwpj;Jk; kpft[k; ftdj;Jld;
ghprPyid bra;njd;/ vd; Kd; jhf;fy;
bra;ag;gl;l midj;J Mtz';fspd;
mog;gilapy; rpwg;g[ cjtp Ma;thsh;
utpr;re;jpud; vd;gth; kPJ nkny brhd;d
Fw;wg;gphpt[fspd; go Fw;w tHf;F
bjhlh;tjw;Fg; nghjpa Mjhu';fs; cs;sjhf
KG kdepiwt[ mile;njd;/
11.1.The sanctioning authority was examined as P.W.1 and he deposed before the Court that he accorded sanction under Ex.P1 after applying his mind in the following words:
19/92
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 tpuhypkiy fhty; epiyaj;jpy;
gzpg[hpe;j M$h; vjphp utpr;re;jpud; vd;gtUf;F vjpuhf CHy; fz;fhzpg;g[ tHf;F gjpt[ bra;J F/vz;/8-12 r-gp 7. 13(2). c-, 13(1) (gp) d;
fPH; Chy; jLg;g[ rl;lj;jpd; fPH;
gjpt[ bra;ag;gl;l tHf;F bjhlu mDkjp
nfl;L Cjf ,af;Feh; mth;fSf;F fojk;
12/6/2013 njjpapl;l fojj;jpd; mog;gilapy;
kw;Wk; tHf;F nfhg;g[fspd; mog;gilapy; gh/kf $h;. xg;gilg;g[ kf$h;. ifg;gw;Wjy; kf$h;. khjphp tiuglk; thf;FK:y';fs;. ifg;gw;wg;gl;l Mtz';fs; midj;Jk; ghprPyid bra;J nkYk; Cjfz;fhzpg;g[ gphpt[ kjpaHfd; 21/6/13 md;W vd;id re;jpj;J Kjy; jfty;
mwpf;if efy; ,urhad ghpnrhjid mwpf;if
g[yd; tprhuiz bjhlh;g[ila Mtz';fs;
midj;ija[k; ghprPyid bra;a nkw;fz;l
Mtz';fspd; mog;gilapy; MH;e;J ghprPyid
bra;j gpwF mjpy; ,Ue;j ruj;Jfspd;
mog;gilapy; vjphp utpr;re;jpud; vd;gtUf;F
vjpuhf nghjpa
Mjhu';fs; ,Ug;gjhf ,Ue;jjpd; mog;gilapy;
tHf;F bjhlu e/f/nf 1-33229-617-2012-ehs;
22/6/13 njjpa bray;Kiw Miz
gpwg;gpf;fg;gl;lJ/
12. From the above, this Court finds that the sanction order itself is eloquent about the fact that the accused had demanded and accepted the bribe amount. The sanctioning authority also came into the witness box 20/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 and he deposed that he accorded sanction for prosecution after proper application of mind. P.W.1 has deposed as follows:
tpuhypkiy fhty; epiyaj;jpy;
gzpg[hpe;j M$h; vjphp utpr;re;jpud; vd;gtUf;F vjpuhf CHy; fz;fhzpg;g[ tHf;F gjpt[ bra;J F/vz;/8-12 r-gp 7. 13(2). c-, 13(1) (gp) d;
fPH; CHy; jLg;g[ rl;lj;jpd; fPH;
gjpt[ bra;ag;gl;l tHf;F bjhlu mDkjp
nfl;L C/j/f/ ,af;Feh; mth;fSf;F fojk;
12/6/2013 njjpapl;l fojj;jpd; mog;gilapy;
kw;Wk; tHf;F nfhg;g[fspd; mog;gilapy; gh/
kf$h;. xg;gilg;g[ kf$h;. ifg;gw;Wjy; kf$h;.
khjphp tiuglk; thf;FK:y';fs;. ifg;gw;wg;gl;l Mtz';fs; midj;Jk; ghprPyid bra;J nkYk; C/j/fz;fhzpg;g[ gphpt[ kjpaHfd;
21/6/2013 md;W vd;id re;jpj;J Kjy; jfty;
mwpf;if efy; ,urhad ghpnrhjid mwpf;if
g[yd; tprhuiz bjhlh;g[ila Mtz';fs;
midj;ija[k; ghprPyid bra;a nkw;fz;l
Mtz';fspd; mog;gilapy; MH;e;J ghprPyid
bra;j gpwF mjpy; ,Ue;j ruj;Jfspd;
mog;gilapy; vjphp utpr;re;jpud; vd;gtUf;F
vjpuhf nghjpa
Mjhu';fs; ,Ug;gjhf ,Ue;jjpd; mog;gilapy;
tHf;F bjhlu e/f/nf 1-33229?617-2012-ehs;
22/6/2013 njjpa bray;Kiw Miz
gpwg;gpf;fg;gl;lJ/
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Therefore, this Court finds that the sanctioning authority has applied his mind to the fact that accused made a demand and accepted illegal gratification.
13. Further, Section 19 of the Prevention of Corruption Act 1988 and Section 465 of Cr.P.C., specifically state that the conviction cannot be set aside on the ground that there was an error in granting sanction unless accused established failure of justice. For better appreciation, the relevant portion of the Sections are extracted hereunder:
Section 19 of the Prevention of Under Section 465 of Cr.P.C. Corruption act 1988 19.3...(3) Notwithstanding anything contained in 465. Finding or sentence when reversible by the Code of Criminal Procedure, 1973 (2 of reason of error, omission or irregularity.—(1) 1974),— Subject to the provisions hereinbefore contained,
(a) no finding, sentence or order passed by a no finding, sentence or order passed by a court of Special Judge shall be reversed or altered by a competent jurisdiction shall be reversed or court in appeal, confirmation or revision on the altered by a court of appeal, confirmation or ground of the absence of, or any error, omission revision on account of any error, omission or or irregularity in, the sanction required under sub- irregularity in the complaint, summons, warrant, section (1), unless in the opinion of that court, a proclamation, order, judgment or other failure of justice has in fact been occasioned proceedings before or during trial or in any thereby; inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.22/92
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 13.1. The Hon'ble Supreme Court has held as follows in, State v. T. Venkatesh Murthy, reported in (2004) 7 SCC 763 at page 765:
14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding “failure of justice”. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice.
13.2. In State of M.P. v. Virender Kumar Tripathi, reported in (2009) 15 SCC 533 at page 536:
9.Further, the High Court has failed to consider the effect of Section 19(3) of the Act.
The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the court a failure of justice has in fact been occasioned thereby.
23/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 29.3.The Hon'ble Supreme Court in Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 referring to the earlier precedents has observed that ...A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby...
13.3.These two foundational facts to prosecute the appellant under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988 are found in the sanctioning order/Ex.P1 and P.W.1's deposition. Further, in the case of State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260, the Hon'ble Supreme Court has held as follows:
When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption.24/92
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14. In this case also as discussed above, the sanctioning authority accorded sanction by applying his mind and hence, the presumption under Section 114(e) of the Indian Evidence Act comes into play that the sanctioning authority properly discharged his duty. The accused is duty bound to establish the contra to rebut the said presumption and also to establish the failure of justice. In this case, the accused never established both.
15.According to the learned trial Judge, before granting sanction, P.W.1 had discussion with Investigating Officer on 21.06.2013 and the law does not permit to have discussion with Investigating Officer. The Said approach of the learned trial Judge is against the law laid down by the Hon'ble Supreme Court in the case of C.S.Krishnamurthy v. State of Karnataka reported in (2005) 4 SCC 81 at page 85, wherein the Hon'ble Supreme Court refused to accept the contention of the defence that the sanctioning authority failed to apply his mind independently in according sanction on the ground that he made a discussion with the legal cell attached with the Vigilance Department.
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7.This sanction order was proved by Mr V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40, he was competent authority to accord sanction and he accorded the sanction for prosecution of the accused for the alleged offence on 28-2-1990 as per Ext. P-83.
He deposed that SP, CBI sent a report against the accused and he perused the report and accorded the sanction as per Ext. P-83. He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction order was also examined by the Vigilance Cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the Vigilance Cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the Vigilance Cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) from harassment. But, the sanction should not be taken as a shield 26/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 to protect corrupt and dishonest public servant. In the present case, a perusal of the sanction order itself shows that Shri C.S. Krishnamurthy's income from all known sources between the period from 25-5-1964 to 27-6-1986 was Rs 7,91,534.93. That income was from salary, GPF advances, rental income, interest amount from bank accounts and loan amount received from LIC towards house constructions, the dividend income, interest amount and gain in respect of chits received from Navyodaya Sahakara Bank, Vyyalikaval House Building Cooperative Society, Vishalam Chit Funds and Reliance Industries, loan received from friends and family members, gain towards sale of scooter/car, sale proceeds of jewellery and income received by family members and the total expenditure incurred by the accused during this period is Rs 2,41,382.85 and the total assets acquired by the accused both movable and immovable from 25-5-1964 to 27-6-1986 is Rs 9,51,606.66p. Therefore, the accused has to account for difference between the two. The sanction itself shows that there is something to be accounted for by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not 27/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 properly placed before the sanctioning authority for according sanction and the sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind. In the present case the learned Additional Sessions Judge took a very narrow view that all the papers were not placed before the court to show that there was proper application of mind by the sanctioning authority. The view taken by learned Special Judge was not correct and the learned Single Judge correctly set aside the order. In this connection we may refer to a three-Judge Bench decision of this Court in Indu Bhusan Chatterjee v. State of W.B. [1958 SCR 1001 :
1958 Cri LJ 279] in which a similar argument was raised that the sanctioning authority did not apply his mind to the facts of the case but merely perused the draft prepared by the police and did not investigate the truth of the offence. The learned Judges after perusing the sanction order read with the evidence of Mr Bokil held that there 28/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 was a valid sanction accorded by a competent person. In this case, the accused was charged under Section 161 of the Penal Code, 1860 and Section 5(2) of the Prevention of Corruption Act. The accused was paid a sum of Rs 100 in marked currency as illegal gratification at Coffee House for clearing some claims entrusted to him and same was found in his possession. Sanction for prosecution of the appellant was sought from PW
5. Mr Bokil as a competent authority to grant sanction, came in the witness box and he deposed that he accorded sanction for prosecution after proper application of mind. On these facts the learned Judges observed that Ext. 6 on the face of it disclosed a valid sanction for prosecution. In the sanction order it was disclosed that the accused had accepted a bribe of Rs 100 for clearing claim cases and he was trapped. Though the sanctioning authority who came in the witness box could not answer some questions in cross-examination, yet this Court held that sanction itself is eloquent read with evidence of the sanctioning authority and the same is valid.
In the present case, the facts contained in the sanction order read with evidence of the 29/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 sanctioning authority makes it clear that sanction was properly accorded and is valid.
16. In the present case, the learned trial Judge noted that there are some contradiction and discrepancy between the statement of the witnesses and same was not considered by the P.W.1 while according the sanction and there was non application of mind. The said approach of the learned trial Judge also is not in accordance with provision of the Act and the above guidelines issued by the Hon'ble Supreme Court. The contradiction between the witnesses relating to the particular fact is not within the realm of the sanctioning authority. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons. The granting of sanction is an administrative act and the sanctioning authority is not a judicial officer to appreciate the contradiction and discrepancy in the statement of the witnesses. In this case, the materials placed before the sanctioning authority were the statement of the witnesses and other relevant documents and the final conclusion of the investigating officer. From the above records, the sanctioning authority came to the conclusion that there were sufficient materials to prosecute the respondent for the offence under Sections 7 and 13 (1)(d) of the Prevention of Corruption 30/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Act. Further he also has deposed before the trial Court about his subjective satisfaction upon the materials to accord sanction. He has stated that number of documents were produced before him to show that the respondent demanded and accepted the illegal gratification of Rs.10,000/- from P.W.5 and hence, he accorded the sanction. Therefore, the sanction accorded is in accordance with law. Further the accused Officer neither established failure of justice nor proved the miscarriage of justice as per the Section 19 of the Prevention of Corruption Act and 465 of the Cr.P.C. In the said circumstances, the finding of the learned trial Judge that the sanction was granted without application of mind is not sustainable. From the above discussion, it is clear that P.W.1 accorded sanction after due application of mind and this Court finds no other view except that Ex.P.1 is a valid one and P.W.1 applied his independent mind and accorded sanction against the respondent. Accordingly the finding of the learned trial Judge that the P.W.1 had not accorded sanction with application of independent mind, is perverse and the same is hereby set aside. 31/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
17.Discussion about the credibility of P.W.7/official witness/trap witness 17.1.The learned trial Judge disbelieved the testimony of the official witness, namely, the trap witness P.W.7 on the ground that there is a contradiction relating to the place of occurrence between the evidence of P.W.7 and P.W.10. According to P.W.7, the occurrence took place “in between the Manaparai road and Iyangar bakery”. But P.W.10 deposed that the occurrence took place “in front of the Iyangar Bakery”. According to the learned trial Judge, as per the Sketch Ex.P15 and the Mahazar Ex.P10 the said vital contradiction makes his testimony false. Further, he disbelieved the evidence of P.W.7 on another ground that there was contradiction between the evidence of P.W.7 and P.W.10 relating to the attire i.e., before the trap, P.W.7 changed his attire in order to accompany P.W.5. But, P.W.10 deposed that P.W.7 went to the spot wearing the very same dress. Further, it is not a normal human conduct to accept any bribe amount from P.W.5 in the presence of P.W.7 ie, in the presence of the third party and stranger. Considering the above circumstances, the learned trial judge disbelieved the testimony of P.W.7.
32/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 17.2.This Court before going into the reasoning of the learned trial judge on contradiction, recapitulates the principles laid down by the Hon'ble Supreme Court as to how the “contradiction” is to be elicited and appreciated.
17.3.The Hon’ble Three Judges Bench of the Hon'ble Supreme Court in Munna Pandey Vs. State of Bihar reported in 2023 SCC Onlince Sc 1103, stated as to how contradiction shall be elicited. The relevant paragraphs as follows:
“49.In the aforesaid context, we may refer to and rely on a three-Judge Bench decision in the case of V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein this Court, after due consideration of Section161 of the CrPC and Section 145 of the Evidence Act, observed as under:— “16. Section162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he 33/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose : (i) of contradicting such witness by an accused under Section 145of the Evidence Act;
(ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and
(iii) the re-examination of the witness if necessary.
17.The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section162CrPC“if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the 34/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
“145. Cross-examination as to previous statements in writing.—A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
19.Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and 35/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement.
The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section145 of the 36/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Evidence Act that is, by drawing attention to the parts intended for contradiction.” (Emphasis supplied)
50. What is important to note in the aforesaid decision of this Court is the principle of law that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in compliance with Section145of the Evidence Act. Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section145 of the Evidence Act and bring them on record. It is the duty of the defence counsel to do so.” 17.4. In this case, no such contradiction was elicited as per Section 145 of the Indian Evidence Act as interpreted by the Hon'ble Supreme Court. In order to contradict the evidence of witness, the relevant portion is to be marked and there should be proper questioning to P.W.10 and P.W. 7, relating to the said contradiction. In this case, no such contradiction was elicited as per the above set of principles and hence the said contradiction not at all existed and the procedure adopted by the learned trial Judge to 37/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 rely the said contradiction without eliciting the contradiction by marking the contradicting portion as per the above law is against the principle laid down by the Hon'ble Supreme Court and hence, this Court holds that the contradiction is not elicited as per the law and hence the learned trial judge erroneously held that there was contradiction.
18. The alleged contradiction as stated by the learned trial Judge is also not material in this particular case and the same has no way affected the evidence of P.W.5, P.W.7 and P.W.11 with regard to the material particulars of the prosecution case, ie., the demand and acceptance of the amount. The contradiction is quite natural, more particularly, in the case on hand where the occurrence took place on 29.11.2012 and examination of the witnesses has been done in the year 2015. Since the delay in recording the evidence is a normal happening, such minor contradiction cannot affect the prosecution case as held by the Hon'ble Supreme Court in the following judgement.
38/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 18.1. In Jaiprakash Vs. State of U.P., reported in (2020) 17 SCC 632 at page 640
20... The witnesses who have deposed in the court after considerable lapse of time of course, cannot be expected to have photographic memory of the case. We are conscious of the well-settled position that the minor discrepancies not touching upon the core of the prosecution case, would not affect the credibility of the witnesses or the prosecution case.
18.2. In Rakesh v. State of U.P., reported in (2021) 7 SCC 188 at page 195
9...There may be some minor contradictions, however, as held by this Court in a catena of decisions, minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.
18.3. In Mritunjoy Biswas v. Pranab, reported in (2013) 12 SCC 796 at page 809
28. It is well settled in law that the minor discrepancies are not to be given undue 39/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take the place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (see Leela Ram v. State of Haryana [(1999) 9 SCC 525 : 2000 SCC (Cri) 222] , Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] and Shyamal Ghosh v. State of W.B. [(2012) 7 SCC 646 : (2012) 3 SCC (Cri) 40/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 685] ).
19. Even assuming that there is a contradiction in the evidence, i.e., “Near Iyangar Bakery” and “in between Manaparai road and Iyangar Bakery” the said contraction is not a material contradiction. In order to appreciate the said submission of the contradiction, this Court is duty bound to extract the portion of occurrence place as shown in Ex.P15. Ex.P.15, which is as follows:
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20.From the perusal of Ex.P15, it is clear that the occurrence took place near the Iyangar Bakery. According to the learned trial Judge, P.W.7 42/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 deposed that the occurrence place is in between the Manaparai Road and Iyangar Bakery. According to P.W.10, the occurrence took place in front of the Iyangar Bakery. This Court finds no contradiction between two witnesses. P.W.7, in his chief examination, clearly deposed that when he and P.W.5 approached the accused officer, he enquired with P.W.5 about the company of P.W.7 and asked to wait near Iyangar Bakery. Near the Iyangar Bakery, he received the amount. In his deposition, P.W.7 deposed as follows:
ehd; nrhy;Yk;NghJ vjphp kdg;ghiw Nuhl;Lf;Fk;
Iaq;fhh; Ngf;fhp vjpNu Xukhf epd;W
nfhz;L ,Ue;jhh;.
21. From the above evidence, it is clear that he never deposed that the occurrence took place in between the Iyyangar Bakery and Manaparai Road as found by the learned trial Judge. This Court finds no support for the finding of the learned trial judge that he deposed that occurrence took place in between Iyangar bakery and manaparai Road. This Court perused the entire evidence of P.W.7 and in his evidence he has nowhere stated that the occurrence place is between Iyangar Bakery and the Manaparai road. During course of cross examination usual questions were put to P.W. 43/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 7 about the topography of the occurrence place. He never deposed that occurrence took place between Iyangar bakery and manaparai Road.
Hence, the finding of the learned trial Judge, that “ Muthaiah has deposed that the occurrence is in between the Manaparai Road and Iyangar Bakery” is not available in the deposition of P.W.7. Therefore, the said finding of the learned trial Judge is against the record and it is a perverse finding. P.W.7 was subjected to incisive cross examination. In the said cross examination, he elicited the topography of the place and in no place he has stated that the occurrence place is in between the Manaparai and Iyangar Bankery. P.W.10 in his cross examination deposed that rk;gt ,lkhdJ ma;aq;fhh; Ngf;fhp Kd;G ele;jjhf nrhy;yg;gl;lJ.
22. P.W.10's evidence is also clear and his testimony corroborated the version of P.W.7 and P.W.5. There was no dispute regarding the receipt of the bribe amount by the accused officer, in front of the Iyangar Bakery and also from the observation of the sketch, it is clear that there was no much difference between the words “in front of the Iyangar Bakery and in the Iyangar Bakery”. Hence, the learned trial Judge's finding that there were two versions, relating to the place of the occurrence is perverse. 44/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
23. Further, the contradiction relating to the wearing of lungi by P.W.7 is not a matter that would affect the presence of P.W.7 in the scene of occurrence. P.W.7 is the independent official witness and he has no motive against the appellant. Further he was not a relative of P.W.5 and it is not the case of the respondent/accused, that P.W.7 and P.W.5 and P.W.11 conspired together and roped in the accused in the false case. When two independent officers namely P.W.7, P.W.10 speak about the sequence of events cogently, it is the duty of the Court to accept the prosecution version of demand and acceptance of the bribe amount. Disbelieving the evidence of P.W.7 on these irrelevant facts amounts to mis-carriage of justice.
24. Apart from that the occurrence took place on 29.11.2012, P.W.10 was cross examined on 16.12.2015 and P.W.7 was cross examined on 17.06.2015. After lapse of years they are not expected to depose with precise memory. Further, the Hon'ble Supreme Court has stated that in the trap case, when the witness are examined after considerably long time, it is quite natural that witness can not accurately recollect the topography of occurrence place. The learned trial Judge also failed to consider the 45/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 principle that the Court must read the entire evidence and cannot pick and choose the evidence and treat the same as a contradiction. In this aspect, it is relevant to cull out the principle laid by the Hon'ble Supreme Court in the case of Vinod Kumar Garg Vs. State (NCT of Delhi) reported in (2020) 2 SCC 88 at page 97:
14. It would be sound to be cognitive of the time gap between the date of occurrence, 3-8-1994, and the dates when the testimony of Nand Lal (PW 2) was recorded, 9-7-1999 and 14-9-1999, and that Hemant Kumar's (PW 3) testimony was recorded on 18-12-2000 and 30-1-2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time.
Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 and 13 of the Act, that as noticed above and hereinafter, have been 46/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 proved and established beyond reasonable doubt. Documents prepared contemporaneously noticed above affirm the primary and ocular evidence....
25.Motive It is not unusual to cite unconnected stale motive in the case of corruption by stating irrelevant facts through prolonged cross examination after lapse of number of years from the date of occurrence. The Honourable Supreme Court repeatedly held that even though motive is available, that is not a ground to disbelieve testimony of the defacto complainant and trap witness/official witness when their evidence is cogent without any infirmities about the demand and acceptance made by the appellant. The relevant portion of the judgment is as follows:
25.1. In the case of State of U.P. v. Zakaullah, reported in (1998) 1 SCC 557
6.The complainant's evidence was jettisoned on the mere ground that since he had a grouse against the delinquent public servant he might falsely have implicated the latter. Such a premise is fraught with the consequence that no bribe-giver can get away from such a stigma in 47/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 any graft case. No doubt PW 5 would have been aggrieved by the conduct of the respondent. The very fact that he lodged a complaint with the Anti-Corruption Bureau is reflective of his grievance. Such a handicap in his evidence may require the Court to scrutinise it with greater care, but it does not call for outright rejection of his evidence at the threshold. A pedantic approach rejecting the evidence of a complainant simply on the premise that he was aggrieved against the bribe-taker, would only help corrupt officials getting insulated from legal consequences.
25.2.Similar view was also taken by the Honourable Supreme Court in the case of State of U.P. v. G.K.Ghosh, reported in (1984) 1 SCC 254 at page 262 Paragraph 10, 14
10.It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party — namely that he is an interested witness. This is true, but only to an extent — a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a 48/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Government officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same time it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience.
14. So also it is not possible to believe that all the police officers had from the beginning conspired to rope in the respondent by hook or crook and had carried with them the half complete form which was acquired in a fortuitous manner to the consulting room in order to prepare the fictitious Farad at the time of the 49/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 raid. It is not possible to believe that nothing had transpired at the raid, and yet, an imagined account of the occurrence and the seizure was incorporated in the Farad with a view to falsely implicate the respondent. The explanation of the respondent as to why the police officers should have falsely implicated the respondent is also not convincing.
25.3. In the case of Mukut Bihari v. State of Rajasthan, reported in (2012) 11 SCC 642
10. The courts below considered the facts properly and appreciated the evidence in correct perspective and then reached the conclusion that the charges stood fully proved against the appellants. “The explanation furnished by the appellants that they had falsely been enroped due to enmity could not be proved for the reason that no evidence could be brought on record indicating any previous enmity between the complainant and the appellants nor was any evidence available to show that the complainant was not satisfied with the treatment given to his father and he could act with some oblique motive in order to falsely implicate the appellants. Thus, under the garb of donation, he had offered the tainted money to the appellants and got them arrested.50/92
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26. From the above reading of the judgments of the Hon'ble Supreme Court, it is clear that every person would approach the vigilance office only when they have grievance over the Act of public servants. Therefore, the same cannot be put against him to disbelieve his testimony. The persons like defacto complainant, approached only after the demand was made by the accused officer. In the said circumstances, reason is always there to approach the vigilance office. This can not be a ground to disbelieve their evidence.
27. Therefore, this Court rejects the motive theory when the demand and acceptance of bribe amount are clearly proved through evidence. In this case, P.W.5, P.W.7 cogently deposed about demand of Rs.10,000/- as monthly mamool made by accused officer and acceptance, without any infirmity and their testimonies are trustworthy.
28.Demand In paragraph Nos.32, 33, 34, 35 and 36 of the judgment, the learned trial Judge made a discussion about the demand and has given a finding that the demand was not proved on the basis of the following 51/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 findings:
(i) Except the testimony of P.W.5, there was no corroborative evidence to show that on 04.12.2012, the accused demanded bribe amount from P.W.5.
(ii) In the FIR, it is stated that the demand was made by the Inspector of Police also. But, he was arrayed as a witness.
(iii)P.W.5, the complainant has not shared the allegation of demand made by the accused with anybody. The son of P.W.5 was not examined to corroborate the testimony of P.W.5 to prove the demand made on 04.12.2012.
(iv)there was a criminal case pending against the lorries of P.W.5. Therefore, the testimony of P.W.5 is not believable.
29.All the above finding is not legally valid and the same is perverse as can be seen from the following discussions:
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(i)According to the prosecution, on 04.12.2012 at about 09.00 p.m, P.W.5 met the accused and the accused demanded the bribe of Rs.10,000/-
as a monthly mamool to give the same to the Inspector of police and allow P.W.5 to continue his business, without interference of the police officers. Therefore, P.W.5 preferred the complaint before P.W.10(Trap laying officer) attached with the vigilance department and he registered the case under Section 7 of the Act and arranged the trap with the currency note brought by P.W.5, upon preparation of the entrustment mahazar in the presence of the two independent official witnesses P.W.7 and one Radhakrishnan. Thereafter, P.W.5 and P.W.7 met the accused officer in the police station and the accused officer reiterated the demand of Rs.10,000/- from P.W.5 in the presence of P.W.7. After confirming the bribe amount was brought by P.W.5, the accused officer asked him to come to Iyyangar Bakery situated nearby the police station. P.W.5 and P.W.7 met the accused officer and he reiterated the same and obtained the same and put the said tainted currency notes in his pant pocket. P.W.5 and P.W.7 cogently deposed the same without any infirmity. Their unimpeachable evidence is not shattered during their incisive cross examination by the appellant's counsel. Therefore, the prosecution without any iota of doubt proved the 53/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 demand beyond reasonable doubt.
30.But, the learned trial Judge has erroneously held that the prosecution failed to prove the first demand made on 04.12.2012 stating only the bribe giver's evidence is available without any corroborative evidence. The said approach of the learned trial judge, is not in accordance with the principle laid down by the Hon'ble Supreme Court that conviction can be passed on the basis of the sole testimony of the cogent, trustworthy testimony of the defacto complainant.
31.The learned trial Judge failed to consider the reiteration of demand made by the accused officer on 05.12.2012 in the presence of P.W. 7 and obtaining the bribe amount. When the said fact of subsequent demand and obtainment of the bribe amount has been proved, it is the duty of the trial Court “to draw the inferential presumption” that the accused officer demanded and obtained the bribe amount. “It is not necessary to prove the sequence of events of demand right from beginning. The law requires only acceptance following demand”.
54/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
32. P.W.7 was the Assistant Engineer in the Tamil Nadu Government Department. The trap laying officer called him to act as the shadow witness in the trap proceedings as an independent witness. He without any motive against the accused officer deposed about the demand and the acceptance of the bribe amount in cogent manner and he was subjected to detailed cross examination but the defence has not established any circumstance to disbelieve the evidence of P.W.7 about the demand and acceptance made on the date of trap. It is well settled principle that conviction can be passed on the basis of the sole evidence of the trap witness. From the ratio of the Hon'ble Constitution Bench of the Supreme Court in the case of State of Bihar v. Basawan Singh, reported in AIR 1958 SC 500, the Hon'ble Three Member Bench of the Supreme Court in the case of Bhanuprasad Hariprasad Dave v. State of Gujarat, reported in AIR 1968 SC 1323, the Hon'ble Supreme Court in the case of Prakash Chand v. State (Delhi Admn.), reported in (1979) 3 SCC 90, it can be seen that the Court can convict the accused on the basis of only evidence of the independent official/shadow witness “without any corroboration”, if the Court is satisfied from the facts and circumstances of the case that the witness is a “witness of truth”.Apart from that, P.W.5 clearly deposed that 55/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the accused reiterated the demand in the presence of P.W.7 before obtaining the bribe amount and the same was corroborated by the evidence of P.W.7. From the perusal of the evidence of P.W.7, this Court finds no circumstances to hold that P.W.7 is not a truthful witness.
33.The Hon'ble Supreme Court in the case of Kishan Chand Mangal v. State of Rajasthan, reported in (1982) 3 SCC 466 at page 477 has taken inferential deduction of the demand from the events that had taken place on the date of the trap ie., from the conversation that took place between the accused and the complainant in the presence of the official witness. This Court for better appreciation, compares the nature of the conversation that had taken place between the accused officer and the complainant in the reported case of the Hon'ble Supreme Court and the present case to draw the presumption that the demand has been proved by the prosecution in this case beyond reasonable doubt:
Kishan Chand Mangal v. State of In the present case Rajasthan, reported in (1982) 3 SCC 466 at page 477 56/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
11. It was next contended that once Rajendra Dutt is not P.W.5 available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not ehd; Vda;ah vd;W nrhd;Ndd;. ehd; khjh khjk; 5-
open to the court to spell out the demand from the k; Njjp ];NlrDf;F 10 Mapuk; nfhLj;JtpL vd;W nrhd;dhh;. contents of Ex. P-12. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is mth; Vd; Ml;fis Tl;b te;jPh;fs; vd;W rj;jk;
equally true that the FIR lodged by him on November 22, 1974, cannot be used as substantive evidence nor the Nghl; lhh; . rhprhp gzk; nfhz;L te;Js;shah vd;W Nfl;lhh;. ehd; contents of the report can be said to furnish testimony gzk; nfhz;L te;Js;Nsd; vd;W nrhd;Ndd;. ehd; against the appellant. Such an FIR would not be covered Nky;rl;ilapy; ,Ue;j &.10 Mapuj;ij vLj;J by any of the clauses of Sections 32 and 33 of the jpU.utpr;re;jpudplk; nfhLj;Njd;. mth; me;j gzj;ij Evidence Act and would not be admissible as substantive vz;zpg;ghh;j;Jtpl;L mth; Ngz;l; ghf;nfl;by; gpd;Gwk; itj;jhh;. evidence. The question still remains whether there is any mth; ,dpNky; gpur;rid ,Uf;fhJ ];Nlrdpy; v];I evidence of demand of bribe on November 20, 1974, in njhy;iyAk; ,Uf;fhJ vd;W nrhd;dhh;. this case. A fact may be proved either by direct testimony or by circumstantial evidence. If appellant did not visit the factory of Rajendra Dutt on November 20, 1974, and P.W.7 ,uT 7.30 kzpf;F fhty; epiyaj;jpw;F nrd;W made no overtures demanding the bribe, on what mile;J rpwg;G cjtp Ma;thsh; utpr;re;jpud; Adpghh;k; rational hypothesis can one explain the visit of Rajendra Nghlhky; rhjhuzkhd cilapy; tpsf;F ntspr;rjpjy; epd;W Dutt to the office of Dy SP, ACD on November 22, 1974; nfhz;L ,Ue;jhh;. Gfhh;jhuh; Rg;gpukzpaj;jplk; ahh; ,e;j his producing currency notes worth Rs 150; a superior igad; vd;W vd;idg; ghh;j;J Nfl;lhh;. Njhpe;j igad; vd;W officer like the Dy SP, ACD, making all arrangements for Rg;gpukzp nrhd;dhh;. New;W Nfl;l &.10 Mapuk; nfhz;L the trap and the raiding party going to the house of the te;Js;sPh;fsh vd;W Nfl;lhh;. rhh; nfhz;L te;Js;Nsd; vd;W accused on November 22, 1974. The visit of Rajendra Dutt nrhd;dhh;. ,q;Nf Ntdhk; cd; Mgprpd; vjph;Gwk; cs;s soon followed by the raiding party at the house of the Iaq;fhh; Ngf;fhpf;F thUq;fs; vd;W nrhy;yp b.tp.v]; Nkhl;lhh; accused on November 22, 1974, is admitted. Coupled irf;fpis vLj;Jf;nfhz;L utpr;re;jpud; nrd;Wtpl;lhh;... jpUk;g with this, the fact that Keshar Mal, PW 2 in his evidence stated that after Rajendra Dutt entered the room in which Iaq;fhh; Ngf;fhpf;F nrd;wNghJ jpUk;g Vd; ,e;j igaid appellant was sitting, Rajendra Dutt on entering the room mioj;Jf;nfhz;L te;Js;sPh;fs; vd;W Nfl;lhh;. njhpe;j igad; asked the appellant, ‘Hullo, how do you do?’ He further jhd; rhh; vd;W Rg;gpukzpad; nrhd;dhh;. rhp gzk; vd;W stated that the appellant replied, ‘I am sick and suffering Nfl;f ,lJ Nky;ghf;nfl;by; cs;s gzj;ij Gfhh;jhuh; from cold’. He deposed that thereafter the appellant Rg;gpukzpad; vLj;J nfhLf;f utpre;jpud; jdJ tyJ ifahy; asked, ‘Have you brought the money’, whereupon thq;fp ,uz;L iffshYk; vz;zp jdJ tyJ gpd;Gw complainant Rajendra Dutt replied, ‘Yes, I have brought ghf;nfl;by; itj;J nfhz;lhh;. ,JNghy khjh khjk; kh%yhf the money’. He further stated that thereafter Rajendra &.10 Mapuk; nfhLj;J tpLq;fs; vd;W utpr;re;jpud; nrhd;dhh;. Dutt took out the amount of currency notes from his NghyPRfspd; gpur;rid ,y;yhky; ghh;j;Jf;nfhs;fpNwd; vd;W diary and gave the same to the appellant who took the nrhd;dhh;. amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by PW 2 Keshar Mal. But Mr Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as hereinbefore set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974.
57/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
34.From the above, it is clear that the demand was proved through the unimpeachable oral evidence of P.W.5 and P.W.7. Besides the above unimpeachable oral evidence, there are circumstantial evidence in this case, which is consistent with the guilt of the accused and inconsistent with his innocence i.e., three corroborative circumstances established against the accused to infer the demand:
(i)unusual meeting of the accused officer with P.W.5 in the isolated place and obtainment of the illegal gratification of Rs.10,000/- in the presence of P.W.7.
(ii)Recovery of the tainted money from the pant pocket of the accused officer.
(iii)Immediately after the trap, the trap laying officer questioned about the documents relating to P.W.5's vehicle and the accused officer answered and the same was recovered on the disclosure of the accused officer from the police station.
(iv)The accused officer has taken the plea of alibi and he has not adduced any evidence to prove the same.58/92
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35.In the complaint/Ex.P7, it is stated that the Inspector of Police(P.W.2) also demanded the money. This Court perused the following portion of the contents of the complaint:
ehd; tpuhypkiy fhty; epiyaj;jpw;F nrd;W mq;fpUe;j fhty; Ma;thsh; utPe;jpugpufh\plk; rhh; vq;f yhhpy fpzj;J kz;izj;jhNz Vw;wpte;Njhk; xU yhhp vk;bahfjhNd te;jJ Vd; rhh; vq;f nuz;L tz;bfisAk; Gbr;rpUf;fpq;f vd;W Nfl;Nld;. mjw;F Ma;thsh; mUNf epd;W nfhz;bUe;j rpwg;G cjtp Ma;thsh; utpr;re;jpud; vd;idg;ghh;j;J vy;yh yhhp fk;gdp;ff ; huq;fSk; jPghtspf;F vq;fs ftdpr;rhq;f ePq;f kl;Lk; \;NlridNa fz;Lf;fy mjdhy jhd;
ma;ah ,g;g Gbr;R epWj;jpUf;fhU Vd; fpzj;J kz;
Vj;jyhk;D rl;lj;jpy nrhy;ypapUf;fh ePqf
; ghl;Lf;F
te;J ma;ahfpl;l ,g;gb NgRwPq;f vd;W nrhd;dhh;.
mg;NghJ ma;thsh; utPe;jpugpufh\; rpwg;G cjtp
Ma;thsiu ghh;j;J mtUf;fpl;l vd;dq;f rl;lk;
Ngrpf;fpl;L ,Uf;fPqf
; Ngha; miyQ;rpl;L tul;Lk; mtu
Nghfr;nrhy;Yq;f vd;W nrhd;dhh; mjw;F rpwg;G fhty;
cjtpMa;thsh; vd;dplk; ma;ah ,g;g cq;f Nky nuhk;g Nfhgkh ,Uf;fhU ePq;f Nghapl;L ehd;ife;J ehs; fopr;R te;J vd;id ghUq;f ehd; ma;ah fpl;l nrhy;yp Nkw;nfhz;L njhopy;
nra;uJf;F ,ilQ;ry; ,y;yhk Vw;ghL nra;Nwd; vd;W nrhd;dhh;. ehd; rhp vd;W nrhy;yptpl;L te;Jtpl;Nld;. New;W 04.12.2012 ,uT Rkhh; 9 kzpf;F ehd; tpuhypkiy nrf;Ngh];l; mUNf cs;s vd; mYtyfj;jpd; Kd;ghf epd;W nfhz;bUe;j NghJ mq;F te;j rpwg;G cjtp Ma;thsh; utpr;re;jpd; vd;id re;jpj;J vd;d Rg;gpukzpad; ehd;ife;J ehs; fopr;R vd;ida 59/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 ghf;fr;nrhd;Ndd; ePq;f tuNt ,y;iy. ePqf ; njhopy;
njhlh;;e;J nra;wjh ,Uf;fPq;fsh ,y;iyah vq;fs ftdpf;fhk ePq;f njhopy; gz;z KbahJ. kPjKs;s yhhpfisAk; kzy; flj;jpajhf Nf]; Nghl;lh cq;fshy njhopy; gz;z KbahJ vd;W rw;W kpul;;lyh nrhd;dhh;. ehd; mthplk; vd;fpl;l ePqf ; vd;djhd; rhh;
vjph;ghf;FwPq;f vd;W Nfl;Nld;. mjw;F mth; rhp ele;jJ ele;JNghr;R ,jtpLq;f ,dpNk vd;fpl;l khrhkhrk; 5k; Njjpf;Fs; 1000 Ughia nfhLj;jpLq;f ehd; ,d;];ngf;lh; ma;ahitAk \;NlridAk; ftdpr;Rf;fpNwd; ePq;f cq;fghl;Lf;F epk;kjpah njhopy; nra;ayhk; ahUk; cq;fs njhe;juT nra;a khl;lhq;f vd;W nrhd;dhh; yQ;rk; nfhLf;f vdf;F tpUg;gkpy;iy yQ;r xopg;G NghyPrpy; Nf]; nfhLf;fDk;D epidr;Rf;fpl;L mg;Nghijf;F mthplk; rhpq;f rhh; ,dpNk khrkhrk; ePq;f Nfl;l khjpupNa cq;ff;fpl;lNa 1000 Utha nfhLj;jpLNwd; vd;W nrhd;Ndd;. mjw;F mth; ,e;j khrNk nfhLj;jpLq;f yhhpia Mh;bX Mgprpy; Mh;lh; thq;fpaJk; vLj;Jf;fyhk; vd;W nrhd;dhh;.
(i)From the above, it is clear that the accused officer alone demanded monthly mamool bribe amount of Rs.10,000/- to give the same to the Inspector of Police and allow P.W.5 to continue his lorry business. Further, the investigating officer/P.W.13 conducted a detailed investigation and found that the respondent alone demanded the amount of Rs.10,000/- and P.W.2 never demanded and P.W.2 also deposed before the Court that he never made any demand to P.W.5. The specific case of P.W.5 is that the accused demanded a sum of Rs.10,000/- as monthly mamool as given by 60/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 number of other lorry owners to continue the business. In the said circumstances, the accused officer took a false plea that he made demand of bribe money only on behalf of the Inspector of Police and this Court finds no merit in the argument that the Inspector of Police has not been made as accused. Therefore, the respondent alone made a demand and not P.W.2. Hence, the finding of the learned trial Judge is not correct.
(ii)One another finding of the learned trial Judge is that the accused officer has not registered the case against P.W.5 and hence, the case of the complainant that respondent demanded bribe from him deserved to be set aside, on the ground that it is not the prosecution case that he registered the case for which he demanded the amount. It is the specific case of the complainant that in order to continue his lawful transportation of the sand, the accused has demanded a sum of Rs.10,000/- as a monthly mamool. In the said circumstances, the fact that the accused has not registered the case is not a material one.
36. When P.W.5 has a grievance about the demand of bribe made by the accused officer, it is the duty of the Court to appreciate the evidence in 61/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 consonance with the object of the prevention of corruption act. The Hon'ble Supreme Court held that the law Court cannot be permitted to give importance to minor contradiction, which has not affected the substratum of the prosecution case. In this case, the said contradiction does not go to the root of the case, to disbelieve the evidence. In this case, P.W.7 and P.W.5 are clear that the accused officer asked P.W.5 and P.W.7 to meet him in the police station and he asked them to come to Iyangar Bakery after ascertaining the fact that P.W.5 had brought the bribe amount. Apart from that the stand of the appellant that he never received the amount near the Iyangar Bakery, itself amounts to false explanation. During the course of the proceeding under Section 313 of Cr.P.C., he took plea of alibi. Therefore, it is the duty of the accused to prove his defence of alibi. Mere taking the plea of alibi is not sufficient, he must establish through legal evidence. When there was no evidence to substantiate the plea of alibi, then the evidence on the side of the prosecution is to be accepted.
37. P.W.5, P.W.7, and P.W.10 deposed about the presence of the accused officer in the scene of occurrence and receipt of the bribe amount 62/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 and recovery of the amount after subjecting him to the phenolphthalein test in his hands and further affirmation of the receipt of the amount and putting the same in the pocket of the officer by confirmation test in the pant pocket of the accused officer. The established circumstances are not only cogent and corroborating each other, they are in consonance with the testimony of P.W.5, P.W.7, and P.W.10. The learned trial Judge disbelieved their evidence on irrelevant consideration of assumed contradictions. In the said circumstance, the finding of the learned trial Judge is against the record and hence, this Court holds that the finding is perverse.
38. Further finding of the learned trial Judge that according to P.W.7, he was directed by his superior to meet the vigilance officer namely, P.W.10 by giving a written letter and the same was not produced by the investigating officer. Therefore, it created doubt over his presence. But P.W.10 stated that only oral direction was issued. The said contradiction is not a material, when the presence of P.W.7 was established through sufficient evidence, i.e., preparation of the entrustment mahazar, his presence at the time of recovery and preparation of the recovery mahazar. Further it is to be noted that the arrangement of the trap 63/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 proceeding is to be conducted at appropriate time. If it is not done so, the effort would get frustrated. Therefore, the requirement of the written instruction from the higher officer to depute the concerned officer is meaningless one. In the said circumstances, this Court is unable to concur with the finding of the learned trial Judge.
39. In all aspect, the learned trial judge without properly appreciating the evidence of P.W.3, P.W.2, P.W.5, P.W.7 and P.W10 erroneously acquitted the accused. From the evidence of the prosecution, it is clear that the prosecution without any infirmity proved the case of demand and acceptance of the bribe amount by the accused officer. There are no two versions relating to the said aspect as already discussed above P.W.5 and P.W.7 have clearly deposed about the demand and acceptance. P.W.10 and the remaining witnesses P.W.2, P.W.3 and P.W.5 deposed about the recovery of the amount from the accused officer. The accused's hands were subjected to the phenolphthalein test and his pant also was subjected to the phenolphthalein test. Both, the pant and hands gave positive result. But, non-explanation of the accused as to why the colour changed in his hands clearly shows that he has accepted the money as per Vigilance 64/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Manual Rule 46(1) which reads as follows:
46.Phenolphthalein Test:
(1) Before recovering the tainted money or other articles in the course of trap proceedings, what is known as “phenolphthalein Test” should invariably be conducted the fingers of both hands of the Accused Officer and on the other items such as his pant/shirt pocket, dhoti, etc., with which the notes/articles are known to have come into connect. It will be a corroborative piece of evidence to establish the acceptance of tainted money by the Accused Officer.”
40. If the colour changed in the hands of the accused officer, the presumption is that he obtained the tainted currency. As per the evidence of P.W.5 and P.W.7, the amount was received by the accused officer. Hence, the receipt of the bribe amount was proved through the change of colour in the hands of the accused officer and more particularly, in the background that no explanation for the change of colour was given.
41. As per the scientific report, when the test resulted positive, it is the presumption that they obtained the bribe amount. Even though in the questioning under Section 313 of Cr.P.C., he stated that he was not present 65/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 in the scene of occurrence, i.e., in the place of the payment of the bribe amount, he has not produced any evidence.
42. In the said circumstances, in the absence of explanation for the colour change in the hands and more particularly, in the pant pocket of the accused and recovery of the tainted currency from him they are material circumstances, which lead to the only conclusion that he received the illegal gratification from P.W.5 in the presence of the P.W.7. Therefore, in all aspects the only possible view available in the evidence on record is that the accused officer made the demand of Rs.10,000/- and he reiterated the demand on the date of trap in the presence of P.W.7 and the same was accepted by the accused officer and the acceptance was proved through the evidence of P.W.5, P.W.7 and the recovery made in the police station in the presence of P.W.2, P.W.3 and P.W.4. In the said circumstances, the prosecution case of receipt of illegal gratification was clearly proved not only beyond reasonable doubt and also without any iota of doubt. Further, Once the prosecution proved the receipt of the amount of Rs.10,000/- as illegal gratification other than legal remuneration, as per the following Hon'ble Constitution Bench judgment and other judgments of the Hon'ble 66/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Supreme Court, the accused is presumed to have accepted it as a bribe. Once he fails to dispel the same, when the prosecution established the demand and acceptance, then the presumption under Section 20 of the Act gets attracted. To dispel this presumption, the appellant has to furnish not only the explanation but also has to prove that the explanation is true in the touchstone of preponderance of probability. The Hon'ble Constitution Bench in the case of Dhanvantrai Balwantrai Desai v. State of Maharashtra, reported in AIR 1964 SC 575 has held as follows:
12..... Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as a legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful.
The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words “unless 67/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the contrary is proved” which occur in this provision make it clear that the presumption has to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
43. Before the learned trial Judge, the accused made two submissions about the non compliance of the provisions of Vigilance manual. One is that before registering the case, the trap laying officer/P.W. 10 did not get any permission as per rule 43 of the manual and there were no records to show the compliance of the recording of statement under Rule 47 of the Vigilance Manual. So far as rule 47 is concerned, the learned trial Judge placed reliance on the judgment of this Court reported in 2004 Crl LJ 3754 (Hon'ble Tmt. Justice R.Banumathi as she then was) stating that the non compliance of the said procedure stated in the manual has not affected the prosecution case, but rule 43 is concerned, the learned trial Judge has held that the said compliance is mandatory. When 68/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the law laid down by the Court is that not following the procedure stated in the manual is not material to disbelieve the evidence on record, the trial court ought to have accepted the same for all purpose.
44.The learned counsel for the appellant submitted that the investigation officer has not followed the Rule 43 of the Vigilance Manual , i.e., he has not obtained the concurrence of the higher official before laying the trap. As held by a Hon'ble Division Bench of this Court in Durai Murugan vs. Deputy Superintendent of Police, Vigilance Department. Viluppuram, reported in 2013 (1) CWC 136, the said non- compliance is not a bar to register the case under Section 7 of the Prevention of Corruption Act. In this case, P.W.5 made a compliant about the demand of bribe amount by the respondent and hence, P.W.10 registered the case and made arrangement to lay the trap. Therefore, no prejudice was caused to the appellant due to the non-compliance of the above Rule of the manual. The Hon'ble Division Bench of this Court in the above case has held as follows:
38. A careful reading of the above cited decision would disclose that the accused cannot make any complaint with regard to the non-69/92
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 following of the procedures contemplated under the Vigilance Manual and as per the decision rendered in Vineet Narain's case, cited supra, any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.
45. In the said circumstances, this Court finds perversity in the finding of the learned trial Judge. Apart from that, it is not the mandatory requirement to obtain written permission from the higher authority, and thereafter to proceed for trap. The trap to be organized and is to be proceeded within the time. Otherwise, the purpose of the trap would get frustrated. In the said circumstances, the said finding of the learned trial Judge that he registered the case without obtaining the permission is vitiated and is not correct and also it is not necessary to obtain written permission of the higher official and thereafter, commence the investigation of the crime.
46. The learned trial Judge also magnified inadvertent mistake in the recovery mahazar relating to the name of the accused. The said inadvertent mistake was explained by the officer and the said explanation is 70/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 acceptable one. From the point of view of the reliability, when the entire episode has taken in the tensed atmosphere, this type of inadvertent mistake usually happen and the same is not a material one to disbelieve the evidence of P.W.5, P.W.7 and P.W.10 relating to the demand and acceptance and the recovery of the amount. More particularly, the recovery of amount from the respondent was supported by the evidence of co- employees namely P.W.2 and P.W.3
47.When the available evidence amply proved, the demand, acceptance, the segregation of the evidence by the learned trial Judge to suit the convenience by looking every contradiction with Jaundiced EYE resulted in miscarriage of justice which led to the unmerited acquittal. The learned trial Judge ought to have convicted the accused. In the said circumstances, this Court exercise the power under Section 374 Cr.P.C to interfere with the unmeritted acquittal passed by the learned trial Judge.
48. It is the case of the prosecution that P.W.5 and his son have number of lorries and are doing transportation of sand in a legitimate way. According to the accused, PW5 was doing illegal mining and hence, he 71/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 had some grievance over the seizure of the vehicle for the illegal transportation just before the occurrence, i.e., 29.11.2012. On 29.11.2012 at about 9 o clock, P.W.5 and the inspector of Police attached with the same police station and other persons seized the vehicle of the petitioner without any sand and demanded the above said amount for releasing the vehicle and for non interference by the Police in their business, the accused officer is said to have demanded the amount of Rs.10,000/- on 04.12.2012 at 09.00p.m. Finally, on 04.12.2012 the accused officer asked P.W.5 to hand over the money on 05.12.2012. On 05.12.2012, P.W.5 arranged the money and went to the vigilance office and arranged the complaint. After receiving the complaint, P.W.10 completed the formalities and made the trap proceedings. P.W.5 and P.W.7 met the accused officer in the station. The accused reiterated the demand and asked them to wait near Iyangar bakery. In Iyangar bakery, he reiterated the demand and received the amount and finally after the receipt of the amount he affirmed that he would make arrangement not to interfere with the business of the defacto complainant/P.W.5. P.W.5 gave signal upon receipt of said amount. Thereafter, P.W.10 conducted the phenolphthalein test in the hands of the accused officer and affirmed that he received the bribe amount and on his 72/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 disclosure, the amount was recovered from the pant pocket and the pant pocket was subjected to the phenolphthalein test and the same was conducted in the presence of the co-employee of the accused officer namely P.W.2, P.W.3, P.W.4 and P.W.5. Hence, the recovery has been made in the presence of his own officers. The recovery was clearly deposed by P.W.7 and P.W.10. The same was recorded in the recovery mahazar/Ex.P4. In all aspect, the prosecution clearly proved the case of the demand and acceptance. Further there was no explanation on side of accused for the positive result of the phenolphthalein test in his hand and pant pocket and recovery of tainted currency. In the said circumstances, this Court has no hesitation to hold that the prosecution proved the case of demand and acceptance of the illegal gratification beyond reasonable doubt. Therefore he is liable to be convicted for the offence under 7,13(1)(d) of the Act.
49. The accused officer made demand of Rs.10,000/- as monthly mamool. He had instructed to pay Rs.10,000/- as a monthly mamool like other lorry owners. Therefore, the accused officer had been continuously receiving bribe amount from all persons on monthly basis. Therefore, the said conduct of receiving the bribe amount on monthly basis deserves 73/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 conviction under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. But, the learned trial Judge erroneously acquitted the accused, when the available evidence leans towards the only possible view of conviction under the above section. The learned trial Judge stated that there were lot of loopholes in the case of the prosecution. The loopholes assumed by the learned trial Judge is not at all a matter to be considered in these type of cases, more particularly, when the examination of witnesses took place after number of years from the date of occurrence. It is the duty of the Criminal Court to plug the said immaterial loopholes to ensure the criminal justice system is vibrant as held by the Hon'ble Supreme Court in Dinubhai Boghabhai Solanki v. State of Gujarat, reported in (2018) 11 SCC 129 at page 154:
36. That apart, it is in the larger interest of the society that actual perpetrator of the crime gets convicted and is suitably punished. Those persons who have committed the crime, if allowed to go unpunished, this also leads to weakening of the criminal justice system and the society starts losing faith therein. Therefore, the first part of the celebrated dictum “ten criminals may go unpunished but one innocent should not be convicted” has not to be taken routinely. No doubt, 74/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 latter part of the aforesaid phrase i.e. “innocent person should not be convicted” remains still valid. However, that does not mean that in the process “ten persons may go unpunished” and law becomes a mute spectator to this scenario, showing its helplessness. In order to ensure that criminal justice system is vibrant and effective, perpetrators of the crime should not go unpunished and all efforts are to be made to plug the loopholes which may give rise to the aforesaid situation.
50.The learned trial Judge on the basis of the irrelevant consideration rejected the evidence of P.W.5, P.W.7 and erroneously eschewed their evidence even when their evidence was cogent and trustworthy. On the basis of the evidence of P.W.5, P.W.7, the only view is that the prosecution proved the charged offence beyond any reasonable doubt i.e., Respondent has demanded and accepted Rs.10,000 as illegal gratification and hence, the view taken by the learned trial Judge is not a “possible view”. Further, from the perverse finding of the learned trial Judge in all aspect, this Court finds “substantial and compelling reasons” to interfere with the impugned acquittal Judgement. This Court, in view of 75/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the above discussion finds that the impugned judgment of the trial Court is perverse and there is every substantial and compelling reasons to interfere with the order of the learned trial Judge. Therefore, this Court has jurisdiction to appreciate the evidence, for which there is no legal impediment. Further, the Hon'ble Supreme Court has also held in the case of the appeal against acquittal, this Court has jurisdiction to appreciate the evidence.
51. Earlier the “Hon'ble Constitution Bench of the Supreme Court”, in the case of M.G. Agarwal v. State of Maharashtra, reported in 1962 SCC OnLine SC 22 has held the same in the following paragraph:
16....But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused.---------------
17.In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the 76/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 presumption of innocence is reinforced by the order of acquittal and so, “the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons” : vide Surajpal Singh v. State [1951 SCC 1207 : (1952) SCR 193 at p. 201] . Similarly in Ajmer Singh v. State of Punjab [(1952) 2 SCC 709 : (1953) SCR 418] it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are “very substantial and compelling reasons to do so”. In some other decisions, it has been stated that an order of acquittal can be reversed only for “good and sufficiently cogent reasons” or for “strong reasons”. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord 77/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Russell observed in the case of Sheo Swarup, the presumption of innocence in favour of the accused “is not certainly weakened by the fact that he has been acquitted at his trial”. Therefore, the test suggested by the expression “substantial and compelling reasons” should not be construed as a formula which has to be rigidly applied in every case.
That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715] and Harbans Singh v. State of Punjab [AIR 1962 SC 439] and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse.
51.1. In the case of K. Gopal Reddy v. State of A.P., reported in (1979) 1 SCC 355 : at page 359
9.The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for “substantial and compelling reasons” only and Courts used to launch on a search to discover those “substantial and compelling reasons”. However, the “formulae” of “substantial and compelling reasons”, “good and sufficiently 78/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 cogent reasons” and “strong reasons” and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 :
51.2. In the case of K. Ramakrishnan Unnithan v. State of Kerala, reported in (1999) 3 SCC 309 at page 314
5.The plenitude of power available to the court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction. But however the court will not interfere solely because a different plausible view may arise on the evidence. In a case of murder, if the reasons given by the trial court for discarding the testimony of the eyewitnesses are not sound, then there should be no hesitation on the part of the High Court in interfering with an order of acquittal. If the judgment of the trial Judge was absolutely perverse, legally erroneous and based on wrong testimony, it would be proper for the High Court to interfere and reverse an order of acquittal.
52. The learned trial Judge, magnified the irrelevant omission, minor contradiction and discrepancy and has seen the testimony of the P.W.5, P.W.7 and P.W.11 with jaundiced eyes. In the totality of the 79/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 circumstances, the learned trial Judge magnified every minute irrelevant fact and made mountain out of a molehill and acquitted the respondent which resulted in miscarriage of justice. In similar circumstances, the Hon'ble Supreme Court, in the case of State of Maharashtra v.
Narsingrao Gangaram Pimple, reported in (1984) 1 SCC 446 at page 463 while dealing with the appeal against acquittal has held as follows:
36. .. It seems to us that the approach made by the learned Judge towards the prosecution has not been independent but one with a tainted eye and an innate prejudice. It is manifest that if one wears a pair of pale glasses, everything which he sees would appear to him to be pale. In fact, the learned Judge appears to have been so much prejudiced against the prosecution that he magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence. This is the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case.
Indeed, if such a harsh touchstone is prescribed to prove a case it will be difficult for the prosecution to establish any case at all.
53.The learned trial Judge allowed himself to be beset with fanciful doubts and rejected the creditworthy evidence of independent trap witness 80/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 for slender reasons and has misguided himself by chasing the bare possibilities of doubt and exalting them into sufficiently militating factors justifying acquittal. Therefore, there is an obligation on the part of this Court to interfere with the impugned order of the Court below, in the interest of justice, lest the administration of justice be brought to ridicule and the same was emphasized by the Hon'ble Supreme Court in the following cases:
18.In Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus : (SCC p. 799, para 6) “6. … The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.” In State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : (SCC pp. 81/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 285-86, para 23) the Hon'ble Supreme Court has held as follows:
“23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy... Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.”
54. It is well settled that it is not every doubt, but only a reasonable doubt of which benefit is to be given to the accused. The function of the criminal Court is to find out the truth and it is not a correct approach to pick up the minor lapse in an investigation, irrelevant omission and minor contradiction, to acquit the accused when the ring of the truth is undisturbed from the cogent and trustworthy evidence of P.W.5 and P.W.7 about the demand and acceptance of the bribe amount of Rs.10,000/- by the respondent. Therefore, the learned trial Judge has not properly addressed the issue of “reasonable doubt”. The cherished principles of golden thread of proof of reasonable doubt which runs through web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubts. The same has been emphasized by the Hon'ble 82/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Supreme Court in the following cases:
54.1. In the case of Suresh Chandra Jana v. State of W.B., reported in (2017) 16 SCC 466 at page 476
16.. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be reasonable doubt. The experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshalling the evidence, but what is to be borne in mind is—whether testimony of the witnesses before the court is natural, truthful in substance or not. The accused is entitled to get benefit of only reasonable doubt i.e. the doubt which a rational thinking man would reasonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism.
54.2. In the case of Rajesh Dhiman v. State of H.P., reported in (2020) 10 SCC 740 at page 749
15... Reasonable doubt does not mean that proof be so clear that no possibility of error exists...
54.3. In the case of Bhim Singh Rup Singh Vs. State of Maharastra reported in 1974 3 SCC 762 83/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 “A reasonable doubt”, it has been remarked, “does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons 54.4. In State of U.P. Vs. Anil Singh reported in (1988) Supp SCC 686 the Hon'ble Supreme Court has held as follow:
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
54.5. In the case of Inder Singh v. State (Delhi Admn.) reported in [(1978) 4 SCC 161 the Hon'ble Supreme Court has held as follows:
A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many 84/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. 54.6.The Hon'ble Supreme Court on various occasions cautioned the Courts not to extend the arms of the rule of benefit of doubt to render unmerited acquittals by nurturing fanciful doubts or lingering suspicions causing miscarriage of justice. It is not only the duty of the Court to acquit an innocent, but it is also the paramount duty of the Court to see that a guilty man does not escape. The relevant precedents in this aspect is as follows:
The lord Viscount Simon in Stirland v. Director of Public Prosecution (1944) 2 All ER 13 (HL)] held as follows:
“[A] Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. … Both are public duties….” 54.7. In the case of Gurbachan Singh Vs. Satpal Singh reported in 1990 (1) SCC 445 the Hon'ble Supreme Court has held as follows:
17.... Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering 85/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent.
Letting the guilty escape is not doing justice according to law....
54.8. In the case of Sadhu Saran Singh v. State of U.P., reported in (2016) 4 SCC 357 at page 365
20. ...we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent.
Therefore, this Court is inclined to interfere with the judgment of acquittal. The Hon'ble Supreme Court in the case of State of U.P. v. G.K. Ghosh, reported in (1984) 1 SCC 254 : 1984 SCC (Cri) 46 at page 261, has held as follows:
9. By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government/servant. There are numerous reasons for 86/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault.
In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the Accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance 87/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield.
55.Accordingly, this Criminal Appeal stands allowed by setting aside the judgment passed by the learned Special Judge and Chief Judicial Magistrate, Pudukkottai in Spl.C.C.No.4 of 2013 dated 13.04.2016 and convicting the accused for the offence under section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
56. List this case for appearance of the respondent for questioning the sentence of imprisonment on 25.04.2024.
18.04.2024
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
88/92
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).No.174 of 2017
57. As per the direction of this Court, dated 18.04.2024, the accused appeared before this Court. When the accused was questioned under Section 235 (2) of Cr.P.C., about the sentence of imprisonment to be passed, he pleaded as follows:
Accused Name Answers of the Accused
ehd; nfhh;l;L L:l;o ghh;j;Jf;
bfhz;L ,Ue;njd;/
R.Ravichandran vdf;Fk; ,e;j rk;gtj;jpw;Fk;
vt;tpj rk;ge;jKk; ,y;iy/
,e;j tHf;fpy; bgha;ahf
vd;id jpzpj;J tpl;lhh;fs;/
Mfnt Fiwe;j jz;lid
tH';f ntz;Lfpnwd;/
58. Considering the present age of the respondents, ie., 62 years and considering that the occurrence had taken place in the year 2012 and acquittal judgment was passed in the year 2016, this Court is inclined to impose the following minimum sentence of imprisonment with fine and all the substantive sentences of imprisonments are to run concurrently. The period already undergone by the accused is ordered to be set off under Section 428 of Cr.P.C.
89/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 Sl.No. Under Sections Sentence of Fine Default Imprisonment Sentence 1 7 of the One year Rs. Three months Prevention of rigorous 5,000/- of simple Corruption Act imprisonment imprisonment 1988 2 13(2) r/w 13(1) One year Rs. Three months (d) of the rigorous 5,000/- of Simple Prevention of imprisonment Imprisonment Corruption Act 1988
59. After passing the sentence of imprisonment, the learned counsel for the respondent seeks for an interim suspension of the sentence of imprisonment. Considering the age of the accused and the fact that the judgment of the trial Court passed in the year 2016 is reversed by this Court by this judgment and also considering the request of the respondent to give sufficient time to prefer appeal, this Court is inclined to suspend the sentence of imprisonment up to 31.07.2024. The respondent is directed to surrender before the trial Court on 01.08.2024. 90/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017
60. List this case on 01.08.2024, for reporting compliance.
25.04.2024
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
Note:Issue Order Copy On 22.05.2024.
To
1. The learned Special Judge and Chief Judicial Magistrate, Pudukkottai.
2. The Public Prosecutor, High Court, Madras.
(Crime No.8 of 2012 of Pudukkottai V & AC)
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4. The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai.
91/92 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.174 of 2017 K.K.RAMAKRISHNAN,J.
sbn Crl.A.(MD).No.174 of 2017 18.04.2024 & 25.04.2024 92/92 https://www.mhc.tn.gov.in/judis