Madras High Court
D.Dass vs State Rep. By on 5 January, 2010
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2010
Coram:
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
Crl. A. No. 1004 of 2005
D.Dass,
Inspector of Police,
(Ex.Inspector of Police,
Cuddalore Police Station),
No.7, Krishnaswami Nagar,
Kuthapakkam, Cuddalore-2. .. Appellant
vs.
State rep. by
The Superintendent of Police,
Vigilance and Anti-corruption Wing,
Cuddalore.
(Cr.No.1/A.C/97/S.A.) .. Respondent
Prayer: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set aside the judgment of the learned Judicial Magistrate (Special Judge) Cuddalore, Cuddalore District in Special Case No.5 of 2000 dated 07.11.2005 and acquit the appellant herein from the charges levelled against him.
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For Appellant : Mr. A.N.Thambidurai
for K.Govindan
For Respondent : Mr. Hasan Mohammed Jinnah
Additional Public Prosecutor
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J U D G M E N T
This Criminal Appeal is filed by the appellant against the judgment of the learned chief Judicial Magistrate (Special Judge) Cuddalore, Cuddalore District in Special Case No.5 of 2000 dated 07.11.2005. The appellant who is the sole accused, has been convicted under Section 7 of Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default, to undergo three months rigorous imprisonment; under Section 13(2) r/w.13 (1) (d) of the Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default, to undergo three months rigorous imprisonment and the sentences to run concurrently.
2. The brief facts of the case is as follows:-
The accused was working as an Inspector of Police, Vadalur Police Station. The charge against the accused is that on 16.04.1997 in the evening, demanded Rs.1,000/- as illegal gratification from P.W.2 Selvaraj and P.W.3 Rahamathunnissa to take action in Cr.No.204 of 1997 registered under Section 363 and 366 IPC in relation to kidnapping of Hayathunnissa, daughter of Rahamathunnissa. On 17.04.1997 at 9.00 a.m., when they met him and expressed their inability to pay the amount for want of funds, he reduced it to Rs.500/- and insisted them to give the said amount on the same day before evening and in pursuance of the said demand, received Rs.500/- between 6.15 p.m. to 6.25 p.m. on the same day and thereby committed the offence punishable u/s.7 & 13 (2) r/w. 13 (1) (d) of Prevention of Corruption Act.
3. The prosecution in order to bring out the charge against the accused examined P.W.1 to P.W.12 , Ex.P1 to P23 were marked and M.O.1 to M.O.3 were produced.
4. The prosecution version is given below:-
i)The report in this case is said to have been given by P.W.2 to P.W.9 to the Deputy Superintendent of Police, Vigilance & anti-corruption, Cuddalore on 17.04.1997 at 3.30 p.m. and a case was registered in Cr.No.1 of 1997 for the offence u/s.7 of the Act. Ex.P2 is the report and Ex.P18 is the FIR.
ii)According to P.W.2 & P.W.3 and as disclosed from the FIR that the daughter of P.W.3 was missing from 07.04.1997 and with the help of P.W.2, friend of her husband who was in abroad, on 11.04.1997 P.W.3 went and enquired with the Inspector of Police who sent two different teams in search of the girl and in the night, the police received information that the victim girl was with one Devanathan and his friend one Ravi in Ravi's relatives house and she was secured on 14.04.1997 and was brought to the Police Station on 14.04.1997 at 10.00 a.m. The accused received a complaint from P.W.3 and registered a case and sent the victim and the said Devanathan for medical examination but as the history of the case was not sent to the Court, they were not sent for medical examination and on 16.04.1997, they were sent for medical examination and thereafter, the victim girl was handed over to her mother P.W.3 and she took her to the house. On the same day in the evening, when P.W.2 & P.W.3 met the accused, he demanded Rs.1,000/- as illegal gratification for taking proper action in the said case and when P.W.3 expressed her inability to pay the demanded amount for want of funds, they were asked to come on the next day and again on 17.04.1997 at 9.00 a.m., when P.W.2 & P.W.3 went and met the accused and reiterated their inability to pay the amount, the accused reduced the amount from Rs.1,000/- to Rs.500/- and insisted P.W.3 to give the amount through P.W.2 on the same day in the evening. But P.W.2 & P.W.3 were not inclined to give the bribe amount to the accused and P.W.3 drew an amount Rs.7,000/- from her account from Vadalur Bank and P.W.2 & P.W.3 preferred the present complaint Ex.P2 to P.W.9/the Deputy Superintendent of Police.
iii)P.W.9 /the Deputy Superintendent of Police on receipt of the complaint and after registering the case as stated above, decided to conduct trap as accepted by P.W.2, received Rs.500/- brought by P.W.2 given by P.W.3 and P.W.9 demonstrated the phenolphthalein test to P.W.2 and the witnesses summoned by him, namely, P.W.4/Subramaniam, the Chief Assistant in District Collectorate's Office, South Arcot Vallalar District and one Pvadaisay, Special Election Officer (Tahsildar). P.W.9 gave the amount of Rs.500/- smeared with phenolphthalein powder to P.W.2 and instructed him to give the amount if the same is demanded by the accused and thereafter to come out from the place of the accused and to give the pre-arranged signal by wiping his face with hand kerchief. He also instructed P.W.4 to accompany with P.W.2 to watch the conversation between the accused and P.W.2 In respect of the proceedings held at the vigilance office, P.W.9 prepared the Mahazar Ex.P3. The raiding party, P.W.9 and others including P.W.2 & P.W.4 left for Vadalur Police Station at 7.00 p.m. and reached there at 8.00 p.m. P.W.9 instructed P.W.2 & P.W.4 to go to the room of the accused in the Vadalur Police Station.
iv)P.W.2 & P.W.4 went inside the Police Station and entered the room of the accused and P.W.4 stood at a distance of 4 or 5 feet away from the accused. The accused had asked P.W.2 as to whether he has brought the money. P.W.3 took out the currency notes and handed over to the accused who counted those notes and put them on the right drawer of his table. Thereafter, P.W.2 talked to him for about a minute, came out of the Police Station and gave the pre-arranged signal by wiping his face with his hand kerchief.
v)The raiding party, P.W.9 and others came inside the room of the accused. P.W.9 introduced himself and others to the accused and at that time the accused was found perturbed. P.W.9 questioned the accused about receiving the amount from P.W.2 and the accused admitted the receipt of the amount. Thereafter, P.W.9 conducted phenolphthalein test and when the hands of the accused were dipped into the solution, it turned into light pink colour. He put the solution tested in respect of two hands in the bottles M.O.2 and M.O.3 and sealed the same and also obtained the signature of the accused. Thereafter, P.w.9 seized the general diary, personal notebook of the accused and the case diary relating to Cr.No.204/07 Ex.P10 to Ex.P14. The accused was taken to the lodge where he was staying and a cash of Rs.43,100/- was seized from his room and Ex.P5 is the search Mahazar.
5. P.W.10 to P.W.12 conducted further investigation. P.W.12 after completing the investigation and obtaining sanction orders from P.W.1 under Ex.P1 and after examining P.W.1 and recording his statement filed the charge-sheet against the accused for the offence as stated above.
6. When the accused was questioned u/s.313 Cr.P.C., in respect of incriminating materials appearing against him through the evidence adduced by the prosecution, the accused has denied the same and stated that he has been falsely implicated in the case. He has not chosen to examine any witnesses on his side.
7. Mr.A.N.Thambithurai, learned counsel for the appellant vehemently contended that the prosecution has miserably failed to prove the case beyond reasonable doubts by adducing clear and consistent evidence and put forward the following contentions:
i)P.W.2/Selvaraj is not even a witness in the case registered in Vadalur Police Station regarding the kidnapping of Hayathunnissia, daughter of P.W.3 in Sessions Court and that being so, it is false to say that he met the accused/the Inspector of Police with regard to the said case and the accused had demanded money. He pointed out that P.W.3 was satisfied with the investigation done by the accused and the victim girl was also secured and handed over to her and further, the accused was also remanded to custody and there was noting left for any other material part of investigation. He submitted that when the evidence disclosed that the accused never demanded any money either from P.W.2 or from P.W.3 from 11.04.1997 to 16.04.1997 when the main part of investigation was conducted it is highly unbelievable that he demanded money from P.W.3 for taking action in the case. He also pointed out to the material contradiction and inconsistency in the testimonies of P.W.2 & P.W.3 regarding the alleged demand and argued that the alleged demand itself is an utter falsehood.
ii)The prosecution is required to establish the demand of bribe by the accused; acceptance whereof as also the amount in question from his possession and having regard to the fact that there exists serious discrepancies in the statements of witnesses more particularly P.W.2 & P.W.3 in regard to the events immediately prior to the payment of the amount of bribe, the prosecution cannot be said to have proved its case.
iii)The circumstantial evidence in regard to the alleged commission of the offence by the appellant was not sufficient to establish the case of bribery in the light of evidence of P.W.5, P.W.6 & p.W.7, the police personnel attached to Vadalur Police Station.
iv)Absence of entry in the general diary for the presence of the accused in the Police Station during the period from 16.04.1997, 6.00 p.m. to 17.04.1997 till 9.00 a.m. and deliberate omission on the part of the Investigating Officers to investigate on the said aspect clearly proved that there was no such demand of bribe and acceptance as projected by the prosecution.
8. On the other hand Mr.Hasan Mohammed Jinnah, learned Additional Public Prosecutor supported the judgment of the trial Court and submitted the evidence of the prosecution proved the charges against the accused beyond all reasonable doubt. The learned Additional Public Prosecutor contended that P.W.4 was an independent witness and inasmuch as he was in no way concerned with the success of the trap laid by the raiding party his evidence cannot be discarded. He would submit that even regarding the testimony of P.W.2, his evidence cannot be viewed with suspicion, merely because of his acquaintance with vigilance officials and he was a complainant in another bribery case. The learned Additional Public Prosecutor placed reliance on the decision of the Hon'ble Supreme Court reported in (1998) 1 SCC 557, (2000) 10 SCC 157 and (2007) 7 SCC 625 to countenance his argument.
9.The evidence placed on the record disclosed that P.W.2 & P.W.3 reported to the accused that no action was taken in relation to the oral complaint given by P.W.3 regarding missing of her daughter admittedly the accused had sent two teams in search of the girl on 12.04.1997 and again on 13.04.1997 and on such course of action taken by the accused, the girl had been secured and was handed over to P.W.3 on 14.04.1997 at 10.00 a.m. According to them, on the same day a case was registered against one Devanathan and another for kidnapping the minor girl. The girl and the abductor had been sent for medical examination and after medical examination, the girl was handed over to P.W.3. Both P.W.2 & P.W.3 had taken the girl to her house from the Court. P.W.3 stated in her cross examination that it was 5.00 p.m. in the evening on 14.04.1997 when the Court passed direction handing over the custody of P.W.3's daughter to her. Her evidence indicated that she took her daughter straight to her house. P.W.2 also stated that P.W.3 took the girl and went to her house.
10. It is the case of prosecution that on 16.04.1997 at about 6.00 p.m., the accused demanded Rs.1,000/- as bribe for taking proper action in the case registered in relation to the kidnapping of the daughter of P.W.3. Admittedly, the major part of investigation was over by that time i.e., the girl was secured and was handed over to P.W.3 after medical examination. The accused in that case was also remanded to custody. It is not their case that it is the accused who asked them to come to the police station on the day when the demand was made and their evidence clearly indicated that they voluntarily went to the police station. It appeared from their evidence that they were satisfied with the action taken by the police. There is no reason for P.W.2 & P.W.3 to go to the police station when the girl had been secured and handed over to P.W.3 If the accused had any intention to take bribe from P.W.3 then certainly he would not have waited till the major part of investigation to be over and he would have demanded even before securing the girl or atleast immediately thereafter. The categoric evidence of P.W.2 & P.W.3 is that the accused made a demand after the entire episode in the kidnapping case had been over. In such circumstances, admittedly when there was no demand from 14.04.1997 till 16.04.1997 evening, the case of prosecution that a demand was made by the accused at the fag end of investigation raises a considerable doubt as to whether there was such a demand as alleged by the prosecution.
11. In the said backdrop, it has to be seen whether reliance could be placed on the evidence of P.W.2 to P.W.4 and P.W.9 to P.W.12 in this case. It is well known that the prosecution must prove the foundational facts before a presumption could be raised under Sec.20 of the Prevention of Corruption Act. From a perusal of evidence of P.W.2, it transpires that he and P.W.3 went to the Vadalur Police Station on 17.04.1997 at 9.00 a.m. to meet the accused. According to him, on the previous day evening the accused made the first demand and the next day morning at 9.00 a.m. he reiterated the demand but reduced the amount to Rs.500/-. Whereas, P.W.3 stated that on 17.04.1997 at 9.00 a.m. they were present in the office of the Vigilance and Anti-corruption and she gave the complaint that was written by a scribe. So according to her, not only they were present in the office of the vigilance & anti-corruption at 9.00 a.m. on 17.04.1997, but also it is she who gave the complaint written by a third person. This material part of her evidence is in total contrary to the evidence of P.W.2 who had stated that the second demand was made by the accused at 9.00 a.m. on 17.04.1997. The above said contradiction cannot be lightly viewed and ignored as inadvertently made because P.W.3 further affirms in her evidence that after she had been to the office of Vigilance and Anti-corruption, she did not go to the Vadalur Police Station at all. Whereas, P.W.2 stated that after meeting the accused in the morning on 17.04.1997, he and P.W.3 went to the office of Vigilance and Anti-corruption only in the evening at 3.30 p.m. According to him, he wrote the complaint and P.W.3 signed as a witness and only the said complaint was given to the Vigilance and Anti-corruption.
12. It is pertinent to point that P.W.3 is the affected party and if any complaint to be given, it is P.W.3 who should have given such a complaint as admittedly, bribe was demanded from her for taking action in the kidnapping case of her daughter. But, the complaint is given by P.W.2 and not by P.W.3. P.W.2 admitted that the contents of complaint was not written at the instance of P.W.3. In fact, P.W.3 stated that even the word " mwpNtd;" was only written by P.W.2 ad she affixed her signature in the office of the Vigilance and Anti-corruption. It is significant to point that she did not complain about the demand of bribe by the appellant either to her brother Md.Ismail who accompanied her to the Police Station or to the Head Constable namely Iqbal who even according to her was standing outside the police station when the appellant demanded bribe. It is pertinent to point that the said Head Constable had gone in search of the minor girl arranging a van and secured her.
13. The prosecution version is mainly based on the evidence of P.W.2, 3 and 4 more particularly P.W.2 is the star witness to speak about the demand of illegal gratification alleged to have been made by the accused prior to the trap and on the date of trap i.e. on 17.04.1997. It is suggested to P.W.2 that he is the informer to the Vigilance police and he had been a witness in similar cases at the instance of one Selvaraj, the then Deputy Superintendent of Police, Vigilance and Anti-corruption. Though P.W.2 denied the said suggestion but however admitted that he had been the witness in two other similar corruption cases. The relevant portion of his evidence admitting the said fact is extracted below :
"nguk;gY}h; ePjpkd;wj;jpy; mhpaY}h; rg;n[apyh; kPJ yQ;r xopg;G NghyPrhh;
tof;fpy; ehd; rhl;rp nrhy;ypAs;Nsd. yhy;Fb ePjpkd;wj;jpy; yQ;r xopg;G NghyPrhuhy; gthdp vd;gth; kPJ gjpT nra;ag;gl;l tof;fpy; ehd; jhd; Gfhh; kDjhuh; yhy;Fb tof;fpw;F jpUr;rp yQ;r xopg;G NghyPrhhplk; Gfhh; nfhLj;Njd.;. mg;NghJ jpUr;rp gphptpd; Jiz fz;fhzpg;ghsuhf nry;tuh[; vd;gth; ,Ue;jhuh vd;gJ vdf;F njhpahJ." ;
14. The categoric defence is that since P.W.3 belonged to Muslim community, hence, she did not want the matter to be made public and requested the accused to desist him from taking further action after the girl was secured but since the case was registered and records had been sent to the court concerned, the accused expressed his inability to drop or close the case. Not satisfied with his explanation, P.W.2 tried to pressurize the accused through one Selvaraj the then Deputy Superintendent of Police, Vigilance and Anti-corruption who contacted the accused over phone but the accused did not yield to such pressure. Enraged by it, under the guise of paying the transport expenses incurred by one Iqbal, the Head Constable attached to Vadalur Police Station who arranged for the Van to go to the place where the victim was staying with one Devanathan, P.W.2 with the help of the Vigilance and Anti-corruption successfully laid the trap and got the accused entangled in the said trap.
15. Before we go into the said defence theory it is necessary to refer to the catena of decisions of the Hon'ble Apex Court which consistently and repeatedly held that mere proof of receipt of money by an accused in the absence of proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused in a corruption case. In one such recent reported decision, the Hon'ble Supreme Court has held in T.Subramani Vs. State of Tamil Nadu in 2006 (1) SCC (Crl.) 401 as follows:
"Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal and gratification, not sufficient to establish guilt of accused if accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, accused would be entitled to acquittal."
In Union of India V. Purnandu Biswas, 2005 (12) SCC 576, the Hon'ble Apex Court has held that in the absence of proof of demand, the proof of receipt and recovery of the amount is not sufficient to establish the guilt of the accused.
16. Now reverting back to the present case, in the complaint Ex.P2, P.W.3 has stated that they have given Rs.1,000/- for transport expenses but no detail is given as to the person to whom he gave the money. The evidence of P.W.2 discloses that the Head Constable Iqbal had accompanied him to Virudhachalam and they went in a van. Conveniently, he stated that he does not remember whether the vehicle was arranged by the said Head Constable. However, P.W.3 admitted that on 13.04.1997, P.W.2, her brother Ismail and the Head Constable Iqbal went in a private van in search of her daughter to different places and brought her to the police station in the same van. P.W.7/the Sub Inspector of police who was working in Vadalur Police Station at the time of occurrence clearly deposed that he along with Head Constable Iqbal paid for the private van. Conveniently, the said Head Constable Iqbal has not been examined before the trial court, though he was cited as a witness on the side of prosecution. P.W.10/the Investigating Officer admitted in his evidence that he did not examine P.W.2 and P.W.3 on this aspect despite the fact that in the complaint P.W.2 referred to the payment of Rs.1,000/- made towards transport expenses.
17. That apart, presence of the accused in the Police Station at the time of alleged demand is shaky and there is evidence to show that the accused was not present on the morning of 17.04.1997. The testimony of P.W.5/the Grade I constable and P.w.7/the Sub-Inspector of Police who were working at the relevant point of time assumes importance. P.W.5 has categorically stated that on 17.04.1997 they received a wireless message from the Deputy Superintendent Office, Neyveli requiring the accused and other constables to attend bandobust duty urgently and immediately they left the police station in police jeep. As he was unwell, he did not go with them and he left to his house. This is made by P.W.5 in the Chief Examination. In cross it has been elicited that as the accused left the police station abruptly during the roll call in view of the urgent call, there was no entry made in the general diary as to the presence of the accused in the police station in the said morning. He made a reference to the general diary and pointed out that there was no entry showing that the accused was on duty and no such entry is made even in Ex.P13, note book of the Inspector of Police. Nothing was elicited to mark the presence of the accused on 17.04.1997 in the morning in his re-examination.
18. P.W.7, the Sub Inspector of Police who worked in the Vadalur Police Station at the relevant point of time have spoken to the fact that on receiving information that the victim was secured by his team, P.W.3 came to the station and requested the Inspector of police (accused) not to take any further action, not to publicise the same in the paper and insisted to close the case, but by then as the case was registered, the accused expressed his inability to do such thing. He further stated that he came to know that some one from the office of the Trichy Vigilance & Anti-corruption phoned up to their police station with regard to the said kidnapping case.
19. In the above said backdrop of evidence, it has to be seen whether the presence of the accused on 16.04.1997 evening and again on 17.04.1977 at 8.00 a.m. in the morning has been proved by the prosecution in order to establish the said demand made by the accused. As already discussed the inconsistent and contradictory evidence of P.W.2 & P.W.3 throws a considerable doubt in the case of prosecution regarding the alleged demand made by the accused. It is the evidence of P.W.5/the Head Constable whose evidence cannot be ignored that the accused had left the station early in the morning on 17.04.1997 fro bandobust duty.
20. Admittedly none of the Investigating Officers have made an attempt to find out whether the accused was present in the Police Station on the alleged date and time of demand. P.W.9 has deposed as below:
16.04.1997 khiy Kjy; 17.04.1997 fhiy tiu jh]; epiyaj;jpy; ,Ue;jjhf if;ggw;wg;gl;l nghJ ehl;Fwpg;gpy; ghh;j;jdh vd;why; ,y;iy. 16.04.1997 khiy Kjy; 17.04.1997 fhiy tiu jh]; fhty; epiyaj;jpy; ,Ue;jhuh vd nrhy;y Kbahjh vd;why; mJ Fwpj;J ehd; tprhhpf;ftpy;iy.
Likewise P.W.10, his successor would admit as extracted below:
M.M.10 ,y; 16.04.1997 khiy 6 kzpf;Fk; 17.04.1997 fhiy 9 kzpf;F vjphp Ma;thsh; jh]; fhty; epiyaj;jpypUe;jjhf tptuk; ,Uf;fpwjh vdf; Nfl;lhy; mt;thwhd tptuq;fs; ,y;iyjhd;.
21. Hence, it is evident that none of the Investigating Officers verified to the fact as to whether the accused was really present in the station at the time of alleged demand. The lack of investigation on this aspect coupled with inconsistent and contradictory evidence of P.W.2 & P.W.3 creates a serious doubt on the case of prosecution and in the light of evidence of P.W.2 that he has been a witness and a complainant atleast in other two other cases laid by Vigilance & Anti-corruption makes the trap proceedings highly doubtful.
22. It is settled law that the demand of illegal gratification is a sine qua non for constitution of an offence under Prevention of Corruption Act. For arriving at the conclusion as to whether all the ingredients of an offence viz demand, acceptance and recovery of the amount of bribe have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose indisputably, the presumptive evidence as is laid down in sec.20 of the Act must also be taken into consideration, but then in respect thereof, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Even while involving the provision of Sec.20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
23. In the present case even regarding the acceptance of bribe amount there is a material contradiction in the evidence of P.W.2 & P.W.4. to that of the statement made to the Investigating Officer at the time of investigation. P.W.2 & P.W.4 have stated that when P.W.3 went to the accused room on 17.04.1997, he asked him whether he had brought the money demanded by him and after it was tendered to him, he counted the said currency notes. It has been brought by the defence that they have not stated so to the Investigating Officer in their statement made under Sec.161 Cr.P.C. Though P.W.2 denied the said suggestion made by the defence that he has not stated so to the Investigating Officer, but P.W.10 when confronted with the statement of P.W.2 and P.W.4, admitted the omission in the statement of P.W.2 and P.W.4 that the accused asked him whether he had brought the money and after it was tendered he counted the currency notes. This material omission probablise the defence theory that P.W.2 gave Rs.500/- to the accused asking him to hand over the same to the Head Constable Iqbal towards the transport expenses as he was not available at that time and the accused got the money and put it in the drawer in order to hand it over to Iqbal after his arrival. According to the defence, as the accused did not oblige them to drop the case as required by P.W.2 & P.W.3 it agonized them and P.W.2 by using his proximity with the Vigilance & Anti-Corruption cell successfully enacted the trap proceedings.
24. Mr.A.N.Thambithurai, learned counsel for the appellant submitted pointing to the above said evidence in this regard that if the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant is entitled for an acquittal. He would submit that the Hon'ble Supreme Court has observed that though the explanation was not immediately offered but was given only in the statement u/s.313 Cr.P.C., if it is found to be probable, the Court can accept such explanation. He placed reliance on the judgment of the Hon'ble Supreme Court reported in T.Subramanian Vs. State of Tamil Nadu [2006 (1) L.W. (Crl.) 269] wherein, the Hon'ble Supreme Court referring to its earlier decision held as follows:
"If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao Vs. State of Mahashtra [2002 (10) SCC 371], the accused, a patwari, was on a campaign to collect loan amounts due to Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. This Court accepted such explanation (though such explanation was not immediately offered as in this case, but was given only in the statement under Section 313 holding thus:-
"It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
25. In T.Danial Manickaraj Vs. State rep. by the Inspector of P9olice, Vigilance & Anti-Corruption, Tirunelveli [2008 (1) MLJ (Crl.) 774] a single judge of the Court held that when the opportunity to the accused to offer his explanation about the purpose of receipt of money is denied by not questioning him by the trap officer, the explanation offered by him at the time of 313 Cr.P.C., has to be considered.
26. The learned judge observed as follows:
"If the accused was questioned at that time, he could have given an explanation as to why the amount was received by him. But no statement was recorded from the accused at the time of arrest and thus, an opportunity to explain as to why he received the amount has been denied to the accused. The probability of the accused collecting the amount for the Flag Day Collections is acceptable, because though the application was presented by P.W.2 in October 1992, till June 1993 no demand was made by the accused. If really the accused wanted to get any bribe, he would have demanded money long before June 1993. Therefore, the explanation of the accused that the received the amount of Rs.250/- towards Flag Day Collection is more probable and therefore, the benefit of doubt must go to the accused and therefore, he is entitled to be acquitted. When the amount demanded has been clearly proved as towards Flag Day Collection, there cannot be any motive or reward and consequently no statutory presumption could drawn under Sec.20 of the Act. In the result, the appeal is allowed."
27. On the other hand, Mr.Hasan Mohammed Jinnah, learned Additional Public Prosecutor argued that failure of accused to mention the said fact to Investigating Officer at the first available opportunity would only show that the defence taken was not genuine. He placed reliance on the judgment of the Hon'ble Supreme Court reported in 2004 SCC (Crl.) 981 in support of his submission.
28. In the present case, the explanation given by the accused both during cross examination of prosecution witness and in his own statement recorded u/s.313 Cr.P.C., is quite plausible. When an accused gets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probability. On a careful scrutiny of the prosecution witnesses in this case, I am of the opinion that onus could be said to have been duly discharged by the accused, more particularly, when the Investigating Officers have not verified as to whether the accused was on duty on the relevant date and time of the alleged demand.
29. Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in this case is not reliable. It is well settled that the presumption to be drawn u/s.20 of the Act is not an inviolable one. The accused charged with the offence could rebut it either through the cross examination of the witness cited against him or by adducing reliable evidence. It is equally well settled that the burden of proof placed upon the accused against whom the presumption is made u/s.20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond reasonable doubts. It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence of proof of his case beyond a reasonable doubt. It is sufficient if the accused succeeds in proving a preponderance of probability in favour of his case. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing the whole case, the guilt of the accused beyond a reasonable doubt.
30. In applying the said principles to this case, I am of the considered opinion that the prosecution has failed in establishing the guilt of the accused beyond reasonable doubt that there was a demand and acceptance of illegal gratification. Whereas, the accused has given a plausible and acceptable explanation and has discharged the burden thus rebutting the presumption u/s.20 of the Act and therefore, he is liable to be acquitted of the charges levelled against him.
For the aforesaid reasons, I am unable to sustain the conviction of the accused and this Criminal Appeal is allowed and the conviction of the accused under Section 7 and Section 13(2) r/w.13 (1) (d) of the Prevention of Corruption Act and the sentence imposed upon him for the aforesaid offences are set aside and the appellant is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand terminated and the fine amount if any paid by him shall be refunded to him.
05.01.2010 Index :Yes Internet:Yes DP ARUNA JAGADEESAN,J.
DP To
1.The Chief Judicial Magistrate (Special Judge) Cuddalore, Cuddalore District.
2.The Superintendent of Police, Vigilance and Anti-corruption Wing, Cuddalore.
3.The Public Prosecutor, High Court, Madras.
Pre-delivery judgment made in Crl. A. No. 1004 of 2005 05.01.2010