Madras High Court
M.Subramani vs State Represented By on 16 March, 2011
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.03.2011 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA Crl.A.No.719/2005 M.Subramani .. Appellant/Accused Versus State represented by The Inspector of Police SPE/CBI/ACB/Chennai. .. Respondent Appeal filed under section 374 Cr.P.C., against the Judgment of conviction and sentence imposed on 04.08.2005 in CC.No.13/2003 on the file of the learned Principal Special Judge for CBI cases, Chennai. For Appellant : Mr.R.Shanmugasundaram, SC for For Respondent : Mr.N.Chandrasekaran, Spl.PP[CBI cases] JUDGMENT
The challenge in this appeal is to the Judgment of the learned Principal Special Judge for CBI cases, Chennai, dated 04.08.2005 made in CC.No.13/2003 convicting the appellant for the offence u/s.7 of the Prevention of Corruption Act, 1988 [in short "PC Act"] and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.1,500/- and in default to undergo 2 months rigorous imprisonment and convicting him for the offence u/s.13[2] read with 13[1][d] of the PC Act and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.2,500/- and in default, to undergo 2 months rigorous imprisonment. The sentences were ordered to run concurrently.
2.The prosecution case, in a nutshell, is as hereunder:-
2.1. The accused was working as a Telecommunication Mechanic, BSNL Chennai, Keelakattalai Telephone Exchange, Chennai. P.W.5 is a resident of the MGR Road, Nanganallur, Chennai. He was running a tea stall along with his brother, P.W.6. Thereafter, they purchased a provision stores under the name and style as "Chitra Provisions Stores" bearing No.2/102, Ragava Nagar, Second Main Road, Meevarampet, Madipakkam. They were also having a PCO in the name of P.W.6 at the tea stall. They applied for shifting the said PCO to Chitra Stores. Ex.P.9 series dated 18.07.2002 is the application and the same was signed by P.W.6, brother of P.W.5. An affidavit of P.W.6 was also filed under Ex.P.9 series. The terms and conditions of PCO also forms part of Ex.P.9 series.
2.2. The shifting application was given to Alandur Telephone Office and the acknowledgment card was also received. Thereafter, they received an Advise Note under Ex.P.10. Ex.P.11, the intimation letter dated 02.07.2002 was addressed to P.W.6, the brother of P.W.5. Thereafter, P.W.5 went to the Telephone office at Keelakattalai and met the Assistant Engineer. On his direction, P.W.5 went to Puzhudivakkam Telephone Office on 05.08.2002. There, he met one lady Assistant Engineer and as per her instruction, P.W.5 met the accused who was working as a mechanic. The accused informed P.W.5 that he would meet him in the shop on 10.08.2002.
2.3. On 10.08.2002, the accused came to the shop, viz., Chitra Provisions Stores and completed the external work in respect of putting up the PCO at the premises of the Chitra Provisions Stores. After completion of the said work, the accused demanded Rs.1,000/- for giving the connection. He has also informed P.W.5 that he would come again on 12.08.2002. As P.W.5 is not inclined to give the demanded amount to the accused, he has informed P.W.6, his brother and P.W.6, in turn, decided to give a report and as per the dictation of P.W.6, P.W.5 wrote a complaint dated 11.08.2002. He went to the CBI office on the same day, i.e., on 11.08.2002 at 10.15 a.m. and gave the report to the Superintendent of Police. The Superintendent of Police directed the Inspector of Police, CBI [P.W.7] to take action on the complaint preferred by P.W.5 by making an endorsement in the complaint [Ex.P.15]. P.W.7 registered a case in RC MA/2002 A/0039 at 7.00 p.m. on 11.08.2002 for the offence u/s.7 of the PC Act. Ex.P.16 is the FIR and he sent the same to the court concerned.
2.4. P.W.7 instructed P.W.5 to come to the CBI office on 12.08.2002 at 6.00 a.m. along with an amount of Rs.1,000/- which is to be paid as bribe to the accused. P.W.7 also summoned 2 witnesses, viz., P.W.2 and one Prasad from the Railway Department at 6.30 a.m. on 12.08.2002. P.W.7 introduced P.W.5, the complainant to the said witnesses and also asked them to peruse the complaint preferred by P.W.5. P.W.7 decided to conduct a trap. He has demonstrated the Phenolphthalein test. The currency notes containing the denomination of Rs.100/- [10 numbers totalling Rs.1,000/-] which is marked as M.O.1 series, were received from P.W.5 and the numbers have been noted down as per the Mahazar, Ex.P.3 prepared prior to the trap. P.W.7 handed over the currency notes to P.W.5 with an instruction to hand over the same to the accused only in the event of the accused demanding the said amount. P.W.7 asked P.W.2 to accompany P.W.5 and to watch the transaction to be taken place between P.W.5 and the accused at Chitra Stores.
2.5. The raiding team under the head of P.W.7 left for Chitra Provision Stores at Nanganallur at 9.30 a.m. on 12.08.2002. They stopped near the said provision stores and P.Ws.2 and 5 were instructed to go to the Chitra Stores. At about 9.45 a.m. the accused came in a TVS Moped and parked the vehicle in front of the Chitra Provision Stores and went inside the stores at about 9.50 a.m. The accused asked the money from P.W.5 which was demanded by him. P.W.5, in turn, handed over the currency notes to the accused. Thereafter, he came out of the shop and gave the pre-arranged signal by wiping his face thrice with his hands. On receiving the pre-arranged signal, P.W.7 rushed to the Chitra Provisions Stores with his team.
2.6. P.W.7 introduced himself and asked about the identity of the accused, The accused was shivering at that time and he has thrown away the currency notes from his hands. P.W.7 asked the accused whether he has received the bribe amount from P.W.5 and the accused gave a reply. He has arrested the accused and instructed the witness Prasad to collect the currency notes from the road. The numbers of the currency notes collected by the said Prasad tallied with the numbers noted down by P.W.7 in the Mahazar, Ex.P.3. Thereafter, the accused was taken inside the Chitra Stores by P.W.7 and Phenolphthalein test was conducted in respect of fingers of both the hands of the accused and the test proved positive. The Sodium Carbonate solutions have been kept in bottles, viz., M.Os.2 and 3 respectively. The specimen seal was used in sealing the bottles and the same is marked as M.O.4. P.W.7 searched the accused in person and as well as his two wheeler. A diary and a computer print out were seized from the accused under Ex.P.13. P.W.7 enquired P.W.2 and other witnesses as to what had happened earlier and on their narration, a Recovery Mahazar [Ex.P.4] was prepared. The accused was released on bail by P.W.7. He has also sent the material objects for chemical examination to the court along with a requisition.
2.7. P.W.9 took up further investigation. He examined P.W.7 and other witnesses. He also examined the accused on 30.09.2002. But no statement was recorded from the accused. On 01.10.2002, P.W.9 examined P.W.5 and P.W.6. On 23.10.2002, P.W.9 received the chemical analysis report. He has also obtained the Sanction Order under Ex.P.2 from P.W.1. On completion of investigation, he filed the charge sheet on 06.03.2003 against the accused for the offence u/s.7 and 13[2] read with 13[1][d] of the Prevention of Corruption Act, 1988.
2.8. The prosecution in order to substantiate its case, examined P.Ws.1 to 9; filed Exs.P.1 to 17 and marked M.Os.1 to 4. The accused has not chosen to examine any witness or mark any documents on his side.
3. When the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances appearing against him through the evidence adduced by the prosecution, he has denied each and every circumstances as contrary to the facts. He has also filed a written statement stating that he has completed the external work in respect of shifting and fixing the PCO and thereafter, he has no more work to do in respect of the connection. He has also stated that he never demanded any bribe amount from P.W.5 on 10.08.2002 or on 12.08.2002 and he has not received any amount as illegal gratification. He has also stated that he was requested by P.W.5 to come on 12.08.2002 for shifting the PCO to the nearby place from where it was already fixed by him on 10.08.2002 and at that time, the currency notes were thrusted in his hands and a false case has been foisted against him.
4. The learned Trial Judge, on consideration of the entire evidence adduced by the prosecution, has come to the conclusion that the prosecution has proved its case and convicted and sentenced the accused as stated above. Aggrieved against the said Judgment of conviction and sentence, the appellant is before this court with the present appeal.
5. Mr.R.Shanmugasundaram, learned Senior Counsel appearing for the appellant while assailing the impugned judgment of conviction, vehemently contended that the prosecution has miserably failed to prove the demand and as well as the acceptance of the illegal gratification and put forward the following contentions:-
[a] P.W.5 who claims to be the author of the report [Ex.P.15], has admitted in his cross examination that the contents of Ex.P.15 have been written at the dictation of P.W.6, his brother and he has no direct knowledge about the same and as such, the prosecution case in respect of the demand of illegal gratification said to have been made by the accused / appellant is unbelievable.
[b] P.W.6, the brother of P.W.5, on the other hand, disowned the contents of the report, Ex.P.15 and stated that the report was given only by his brother, P.W.5 and such version of P.W.6 falsifies the version of P.W.5 in respect of the demand of illegal gratification, [c] The prosecution version that the accused demanded illegal gratification for giving connection to the shifted PCO at Chitra Stores is unreliable in view of the admission of P.W.4-the Sub Divisional Engineer, Chennai Telephones, that once the installation of instruments and equipments is over, the connection of line will be cleared only by the Assistant Engineer.
[d] P.W.1 who has accorded sanction and who was working as Divisional Engineer, Chennai Telephones, has also stated the accused has completed the external work of installation of telephone at Chitra Stores on 10.08.2002 and as such, the question of making demand of illegal gratification for giving connection not at all arises as the same is to be done by the Assistant Engineer.
[e] The allegation of demand of illegal gratification even on the date of trap, i.e., 12.08.2002 is also unbelievable. It is categorically admitted by P.W.5 that at the time of trap, except one Perumal and himself, no other person was present and therefore, the version of P.W.2 that he was also present along with P.W.5 at the time of demand of illegal gratification is unreliable.
[f] In the absence of demand of illegal gratification said to have been made by the accused, the presumption u/s.20[1] of the Prevention of Corruption Act cannot be raised. The prosecution is entitled to invoke the presumption clause u/s.20[1] of the Act only after discharging the initial burden of demand and receipt of illegal gratification at Chitra Stores.
[g] The prosecution version in respect of the receipt of the illegal gratification of Rs.1,000/- by the accused is also surrounded by serious doubts. P.W.7, the Inspector of Police , who has conducted trap, stated that the accused came in a TVS Moped at 9.45 a.m. and went inside the Chitra Stores at 9.50 a.m. and as such, the alleged demand and acceptance of illegal gratification should have been taken place only inside the Chitra Stores. But P.W.5 categorically admitted that at the time of occurrence, except one Perumal and himself, no one was present and therefore, the prosecution failed to prove the demand and as well as the receipt of the illegal gratification by the accused.
[h] The non examination of the said Perumal who was inside the Chitra Stores at the time of trap, is fatal to the prosecution case.
[i] Even as per the admitted version of the prosecution, the tainted currency notes were recovered only from the road and not from the person of the accused and the official witness, one Prasad who has collected the currency notes from the road as per the instructions of P.W.7, the Inspector of Police has been withheld by the prosecution and the non examination of the said official witness Prasad is fatal to the prosecution case.
[j] In view of the admitted version of the prosecution that the currency notes [M.O.1 series] were recovered from the road and not from the person of the accused, it cannot be stated that the prosecution has established that the accused received the illegal gratification and as such, the prosecution failed to prove the receipt of illegal gratification by the accused.
6. The learned Senior Counsel, in support of his contentions, would rely upon the following decisions:-
[a]2008 Cri.L.J. 1784 [CHIRONJILAL Vs. STATE OF MADHYA PRADESH] [b]2002 [9] SCC 530 [STATE OF TAMILNADU Vs. S.KRISHNAMURTHY] [c]2006 [1] Cri.L.J 518 [STATE Vs. K.NARASIMHACHARY]
7. Per contra, Mr.N.Chandrasekaran, learned Special Public Prosecutor [CBI cases], would vehemently contend that the prosecution has come forward with a clear and cogent evidence and proved the demand and receipt of illegal gratification by the accused and made the following submissions:-
[a] Ex.P.15-report, contains the allegation of demand of illegal gratification made by the accused and the same would amount to conclusive proof of demand of illegal gratification made by the accused on the basis of the evidence of P.W.5.
[b] The demand and receipt of illegal gratification by the accused was proved by the prosecution through the evidence of P.W.5 as corroborated by the evidence of P.W.2.
[c] The prosecution also placed reliance on the Entrustment Mahazar-Ex.P.3 and the Recovery Mahazar-Ex.P.4 to prove its version of demand and receipt of illegal gratification. P.W.5 clearly stated that prior to the trap, the accused came to Chitra Stores on 10.08.2002 and after completing the external work demanded Rs.1,000/- for giving connection and again, he came to Chitra Stores on 12.08.2002, i.e., at the time of trap and demanded the said illegal gratification and as such, P.W.5 has come forward with a consistent version in respect of demand of illegal gratification made by the accused on 10.08.2002 and on 12.08.2002. The said version of P.W.5 is corroborated by the evidence of P.W.2 as he has clearly stated that the accused came to the Chitra Stores and approached P.W.5 and asked him to give the money which he has asked.
[d] The defence cannot place reliance on the admission of P.W.4 that the connection would be given only by the Assistant Engineer and in view of the provision u/s.13[1][d] of PC Act, it is sufficient for the prosecution to establish that the accused has abused his official position by demanding the illegal gratification and he need not be in a position to do any favour.
[e] As the currency notes [M.O.1 series] have been recovered from the accused and the Phenolphthalein test also proved positive, the presumption clause u/s.20[1] of the PC Act should be raised and the trial court rightly raised such presumption and held that the prosecution established its case both in respect of demand and receipt of illegal gratification.
8. The Special Public Prosecutor [CBI cases], in support of his contentions would also place reliance on the following decisions in respect of presumption u/s.20[1] of the PC Act:-
[a]AIR 1966 SC 1762 [V.D.JINGHAN Vs. STATE OF U.P.] [b]2001 SCC [Cri] 34 [MADHUKAR BHASKARRAO JOSHI Vs. STATE OF MAHARASHTRA] [c]2004 SCC [Cri.] 1797 [STATE OF A.P.Vs. R.JEEVARATHINAM]
9. The learned Special Public Prosecutor [CBI cases] also placed reliance on the following decisions in respect of the scope of the provision u/s.13[1][d] of the PC Act:-
[a]AIR 1962 SC 195 [DHANESHWAR NARAIN SAXENA Vs. THE DELHI ADMINISTRATION] [b]AIR 1963 SC 1116 [M.NARAYANAN NAMBIAR Vs.STATE OF KERALA] [c]AIR 1968 SC 1419 [SHIV RAJ SINGH Vs. DELHI ADMINISTRATION] [d]AIR 1969 SC 17 [DALPAT SINGH & ANOTHER Vs. STATE OF RAJASTHAN]
10. This court carefully considered the rival contentions put forward on either side and thoroughly scrutinized the entire materials available on record including the impugned judgment of conviction passed by the learned Trial Judge.
11. At the outset, it is to be stated that in respect of the offences u/s.7 and 13[2] read with 13[1][d] of the PC Act, it is the initial burden of the prosecution to prove the first and foremost ingredient, viz., the demand of illegal gratification said to have been made by the accused. The learned Special Public Prosecutor contended that the prosecution has succeeded in proving the demand and as well as the receipt of the illegal gratification made by the accused. I am unable to countenance such contention of the learned Special Public Prosecutor for the simple reason that it is the prosecution version that the accused demanded the illegal gratification for giving the telephone connection to P.W.5. But there are materials available on record to show that the accused is not the authority for effecting the telephone connection and he is only a mechanic.
12. Let me now analyse and assess the evidence available on record in respect of the demand of illegal gratification said to have been made by the accused. As far as the case on hand is concerned, the prosecution version in respect of demand of illegal gratification consists of two parts, viz., [1]demand said to have been made prior to the trap and [2]demand said to have been made at the time of trap. It is the version of P.W.5/complainant that he has met the accused for the first time on 05.08.2002 as per the instructions of the Assistant Engineer, Chennai Telephones. On that day, the accused informed P.W.5 that he would meet him at his shop, Chitra Stores on 10.08.2002. It is pertinent to note that admittedly the accused has not made any demand of illegal gratification on 05.08.2002. Thereafter, the accused came to the shop of P.W.5, viz., Chitra Stores on 10.08.2002 and he has completed his work of installing the instruments and equipments for fixing the PCO in the Chitra Stores premises. It is the version of P.W.5 that after completing the said work, the accused demanded Rs.1,000/- as illegal gratification for giving connection. As far as the said version is concerned, the prosecution has placed reliance on the sole and solitary testimony of P.W.5 alone and his version is not corroborated by any other evidence.
13. Over and above, it is to be stated that the accused admittedly was working as a Mechanic and he has completed his work of installing the instruments and equipments for fixing PCO as the same was shifted from the Tea Stall of P.Ws.5 and 6 to the Chitra Stores. The accused is not the authority for giving clearance of connection as per the evidence available on record. It is pertinent to note that P.W.4, the Sub Divisional Engineer, Telephone Exchange, Keel Kattalai, has categorically admitted in his cross examination that once the accused, as a mechanic, completed his work of installing the instruments and equipments, the line will be cleared only by the Assistant Engineer. P.W.5 is not an illiterate person and he has studied upto B.Sc. It is also his version that he has met the Assistant Engineer at the Telephone Exchange office and only as per the instruction of Assistant Engineer, he has met the accused who was working as Mechanic and as such, it is crystal clear that he is aware about the procedure for shifting and giving connection in respect of PCO to the shifted place. It is also pertinent to note that even P.W.1-Divisional Engineer, BSNL Telephones, Chennai, categorically admitted in his cross examination that the accused has completed the work of installation of telephone at Chitra Stores on 10.08.2002. It is already pointed out by this court that P.W.5 himself admitted that the accused has completed his work of installing the instruments and equipments for fixing the PCO in the said Chitra Stores premises on 10.08.2002. Therefore, by no stretch of imagination, it could be stated that the accused demanded the illegal gratification for the purpose of clearing the line after finishing his work of installing the instruments and equipments for fixing the PCO at the shifted place, viz., at Chitra Stores.
14. At this juncture, it is relevant to refer the decision of the Hon'ble Apex court reported in AIR 2006 SC 628 [STATE Vs. K.NARASIMHACHARY]. The Hon'ble Apex Court has discussed the facts of the case in the said decision relating to the demand of illegal gratification and in respect of the authority of the accused in the place to issue property valuation certificate, which is as here under:-
"20.So far as the merit of the matter is concerned, as would appear from the discussions made hereinbefore that the prosecution case is not entirely free from doubt. P.W.1 intended to obtain a signature as regard valuation of his lands so as to enable him to get himself registered with the Public Works Department as a contractor. He went to P.W.3 and P.W.3 did not send the same to the respondent by following the existing procedure. He merely initialed the same and handed over it back to P.W.1 allegedly for the purpose of giving it to the respondent who in turn asked to take it to P.W.4.
21.It is really curious that when P.W.1 handed over the application to P.W.4 on 02.03.1994, on the same day his statement as also the statement of his grandmother were recorded and all the documents, viz., Ex.P.2 and Ex.P.6 were handed over by him to P.W.1 who in turn handed them over to the respondent. It was at this stage the purported demand was said to have been made. Strangely enough he met the respondent in the evening of 03.03.1994, although a demand was said to have been made by the respondent on 02.03.1994 in the office, presumably after office hours and then the amount of gratification was reduced from Rs.1,000/- to Rs.600/-. P.W.1 did not make any complaint to P.W.3 on the said date i.e., 03.03.1994 and even on 04.03.1994, although from the conduct of P.W.1 and P.W.3, it is evident that they were very close to each other. P.W.3 apparently intended to help him out of way. The valuation certificate was sent to P.W.3 by the respondent on 04.03.1994 which was signed by P.W.3 on the same day. It was also certified by P.W.4. It is wholly unlikely that although his demand was not met the respondent would forward his certificate to P.W.3. The natural conduct of the respondent, if he had in fact demanded any amount by way of gratification, would have been to wait for P.W.1 to meet his demand.
22. It is not disputed that it was P.W.4 who was to evaluate the property and it was P.W.3 who was to grant the certificate. The respondent was merely a recommending authority. In the aforementioned situation, the High Court has arrived at the following findings:-
".... The evidence on record in this case discloses that Ex.P.1 was submitted by P.W.1 directly to P.W.3 and it has moved with almost jet speed. The local verification, recording of statements, furnishing of certified copies of revenue record etc., had taken place within one day. The file reached P.W.3 in all probability on 03.03.1994 and he signed on the next day P.W.3 was very much accessible to P.W.1. If he sensed any delay or if there were any hindrances, he could have brought the same to the notice of P.W.3 himself. When P.W.3 received Ex.P.1 directly from P.W.1 without any objection there should not have been any impediment in handing over the Ex.P.8 to P.W.1 directly. The accused was neither the issuing authority nor was the outward clerk. He figured somewhere in between. The handing over of Ex.P.8 by P.W.3 to the accused appears to be deliberate and planned. Suggestions to P.W.3 that he was suspended for certain irregularities on earlier occasion, he bore grudge against the accused and wanted to implicate him gains credence in this regard."
15. In view of the above discussion, it is very clear that the Hon'ble Apex court has upheld the view taken by the High Court that the accused in the said case, was not the authority to issue the Property Valuation Certificate and the accused was merely a recommending authority and therefore, held that the prosecution version of demand of bribe is suspicious and doubtful. The view taken by the Hon'ble Apex Court in the above cited decision is squarely applicable to the facts of the instant case as in this case also, admittedly the accused is only a mechanic and he has to complete the external work in respect of shifting of PCO and fixing the same to the shifted place and accordingly, even as per the admitted version of P.W.5, the accused has completed his work by fixing the instruments and equipments on 10.08.2002 itself and the line has to be cleared only by the Assistant Engineer as per the categorical version of P.W.4.
16. Mr.N.Chandrasekaran, learned Special Public Prosecutor [CBI] contended that though the accused is not the authority to give the telephone connection, it is sufficient for the prosecution to establish that the accused abused his official position and thereby, demanded the illegal gratification. In support of such contention, the learned Special Public Prosecutor relied on the following decisions, viz., [a]AIR 1962 SC 195 [DHANESHWAR NARAIN SAXENA Vs. THE DELHI ADMINISTRATION] [b]AIR 1963 SC 1116 [M.NARAYANAN NAMBIAR Vs.STATE OF KERALA] [c]AIR 1968 SC 1419 [SHIV RAJ SINGH Vs. DELHI ADMINISTRATION] [d]AIR 1969 SC 17 [DALPAT SINGH & ANOTHER Vs. STATE OF RAJASTHAN] The above said decisions of the Hon'ble Apex Court relates to the offence u/s.5[1][d] of the PC Act, 1947. The said provision is more or less similar to the present provision u/s.13[1][d] of the PC Act, 1988. The Hon'ble Apex Court has held in the above said decisions that if it is proved that the accused had by illegal means or by otherwise abusing their position as public servants, obtained for themselves money or other valuable things, then, they can be said to have committed the offence of criminal misconduct in the discharge of their official duties. As far as the case on hand is concerned, it is already pointed out by this court that the accused could not have abused his official position as it is the admitted version of P.W.5 that the accused has completed his work of installation of instruments and equipments at the shifted place and further, it is also pointed out by this court earlier that P.W.5 is not an illiterate person and he is well aware about the procedure for shifting coupled with the other evidence of the prosecution through P.Ws.1 and 4 that the accused has completed his work and connection would be given by the Assistant Engineer. If at all the accused had any intention to demand the illegal gratification from P.W.5, he could have made such demand of illegal gratification even prior to the completion of external work, viz., installation and fixing of the equipments for the telephone connection and as such, the version of P.W.5 is unbelievable and unreliable. In view of the aforesaid factors, this court has placed reliance on the decision of the Hon'ble Apex court in STATE Vs. K.KRISHNAMACHARI. [cited supra]
17. Now coming to the second part of the prosecution regarding the allegation of demand of illegal gratification said to have been made by the accused on the date of trap, the prosecution placed reliance on the evidence of P.Ws.2 and 5. It is the prosecution version that the accused made such a demand of illegal gratification at the time of trap, i.e., on 12.08.2002. It is to be reiterated that the trap was conducted at the premises of Chitra Stores and P.W.5 has been instructed by P.W.7, the Inspector of Police to go to the Chitra Stores and wait for the arrival of the accused and further instructed P.W.2 to accompany P.W.5 to watch the transaction between the accused and P.W.5 at the Chitra Stores. It is to be stated at this juncture that P.W.7 has stated in his chief examination that both P.W.2 and P.W.5 reached the Chitra Stores at 9.30 a.m. on 12.08.2002 and P.W.2 also stated that he has accompanied P.W.5 and went inside at 9.30 a.m. and they were waiting for the arrival of the accused. It is seen that the accused arrived at the Chitra Stores at 9.45 a.m. in his TVS Moped as per the evidence of P.W.7 and went inside the shop at 9.50 a.m. Thereafter, it is alleged that the accused demanded illegal gratification from P.W.5. It is pertinent to note that P.W.5 has categorically admitted in his cross examination that on the date of occurrence, i.e., at the time of trap, he was inside the shop only with one Perumal and no one was present at that time. Therefore, P.W.5 has excluded the presence of P.W.2 at the crucial time of the accused entering inside the shop and thereafter, said to have made the demand of illegal gratification. This serious infirmity and inconsistency in the prosecution case also raises considerable doubt about the veracity of the prosecution version in respect of the demand of illegal gratification said to have been made by the accused at the time of trap.
18. The yet another aspect to be borne in mind of this court, as far as the demand of illegal gratification is concerned, is that it is the categorical admission of P.W.5 in the cross examination to the effect that he has written the report, Ex.P.15 as per the dictation of his brother, P.W.6 and he has no direct knowledge about the contents of the complaint. On the other hand, P.W.6, brother of P.W.5 stated in his cross examination that the report was written only by his brother, P.W.5 and he is not aware about the contents of the said complaint. This material contradiction between P.W.5 and P.W.6 and the categorical admission of P.W.5 to the effect that he is not the author of the complaint, Ex.P.15 goes to the root of the prosecution case and accordingly, this court is of the considered view that the entire prosecution case is to collapse. This material contradiction between P.Ws.5 and 6 and the categorical admission of P.W.5 to the effect that he is not the author of the complaint, Ex.P.15 and he has no knowledge about the contents of the complaint, would demolish the entire prosecution case, viz., the demand and receipt of illegal gratification and as such, the prosecution case would collapse on this sole ground. This Court is of the considered view that the prosecution, having failed to discharge its initial burden of proving the demand of illegal gratification, the presumption contemplated under Section 20(1) of the Prevention of Corruption Act cannot be raised against the accused.
19. The learned Special Public Prosecutor [CBI] placed reliance on the decisions of the Hon'ble Apex Court in respect of raising presumption u/s.20[1] of the PC Act, 1988, viz., [a]AIR 1966 SC 1762 [V.D.JINGHAN Vs. STATE OF U.P.] [b]2001 SCC [Cri] 34 [MADHUKAR BHASKARRAO JOSHI Vs. STATE OF MAHARASHTRA] [c]2004 SCC [Cri.] 1797 [STATE OF A.P.Vs. R.JEEVARATHINAM] In the above said decisions, the Hon'ble Apex Court held that only if it is shown that the accused has received a certain amount of money which was not his legal remuneration and the condition prescribed by the section is satisfied, the presumption is to be drawn as per the provision u/s.4[1] of the Old Act, viz., the Prevention of Corruption Act, 1947 and as well as the provisions u/s.20[1] of the present Act, viz., the Prevention of Corruption Act, 1988. The Hon'ble Apex Court has also pointed out in AIR 1966 SC 1762 [V.D.JINGHAN Vs. STATE OF U.P.] that the accused can rebut the presumption by preponderance of probability as is done by a party in civil proceedings and it is not necessary that he should establish his case by test of proof beyond a reasonable doubt.
20. At this juncture, it is relevant to refer decisions of the Hon'ble Apex Court in respect of proof of demand of illegal gratification. The Hon'ble Apex Court in T.Subramanian V. State of Tamil Nadu reported in 2006 [1] SCC [Cri.] 401 has held as here under:-
"The evidence in this case no doubt proves that a sum of Rs.200/- was paid by P.W.1 to the appellant. But the crucial question is whether the appellant had shown any official favour to P.W.1 and whether the said amount was paid by P.W.1 and received by the appellant as consideration for showing such official favour. Mere receipt of Rs.200/- by the appellant [admitted by the appellant] will not be sufficient to fasten guilt u/s.5[1][a] or section 5[1][d] of the Act in the absence of any evidence of demand and acceptance of the amount as illegal gratification."
21. The Hon'ble Apex Court, in the decision in Venkatasubba Rao V. State reported in 2007 (3) SCC (Cri.) 175, has also disbelieved the prosecution version in view of the illegalities in the trap proceedings holding that the manner in which the trap proceedings were undertaken is questionable and ultimately set aside the impugned judgment of conviction and sentence passed by the High Court. The Honble Apex Court in the said decision has held as here under :
24. .... In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. ....
25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution."
22. In a latest decision in 2010 [2] SCC [Cri.] 385 [STATE OF MAHARASHTRA Vs. DNYANESHWAR LAXMAN RAO WANKHEDE] the Hon'ble Apex Court has held in paragraph 16 which reads as here under:-
16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptant and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety."
23. The principles laid down by the Hon'ble Apex Court in the decisions cited supra, are squarely applicable to the facts of the instant case as in this case also, it is already pointed out that the prosecution has miserably failed to prove the first and foremost ingredient to attract the offence alleged against the appellant, viz., the demand of illegal gratification said to have been made by him in view of the reasons assigned earlier.
24. Now coming to the trap conducted on 12.08.2002 the prosecution case is left with the evidence of P.Ws.2, 5 and 7. As already pointed out, the trap was conducted at the premises of Chitra Stores. Before proceeding to analyse and assess the evidence of P.Ws.2, 5 and 7 in respect of the trap conducted on 12.08.2002, it is to be stated at the outset, that P.W.5 has not come forward with any definite version as to how the accused came to Chitra Stores on 12.08.2002. In the chief examination, P.W.5 stated that the accused came to the shop after informing him voluntarily that he would come on 12.08.2002. But, on the other hand, in the cross examination, he has stated that he is not remembering whether the accused has come to the shop on 12.08.2002 on his invitation or on his own. It is the version of the accused while he was questioned u/s.313 Cr.P.C., that only at the instance of P.W.5, he has gone to the Chitra Stores on 12.08.2002 for the purpose of shifting the equipments and instruments fixed by the accused on 10.08.2002 to another place within the premises of Chitra Stores. Therefore, it is very clear that the accused could not have visited the Chitra Stores for the purpose demanding and receiving the illegal gratification and he has been called by P.W.5 for the purpose of shifting the equipments and instruments from one place to another place within the premises of Chithra Stores.
25. As it is already pointed out that P.Ws.2 and 5 were waiting for the accused on 12.08.2002 from 9.30 a.m. and the accused arrived at that place at 9.45 a.m. and entered inside the Chitra Stores at 9.50 a.m. and at that time, it is alleged that the accused demanded illegal gratification and received Rs.1,000/- from P.W.5. P.W.2 was the accompanying official witness to speak about the transaction between P.W.5 and the accused. But, as already pointed out, P.W.5 has categorically admitted in his cross examination that at the time of occurrence, i.e., at the time of trap, he was inside only along with one Perumal who is his brother's son. The said Perumal was not examined and he has been withheld by the prosecution. There is no explanation from the prosecution for the non examination of such a material witness. Therefore, this court has no hesitation to draw an adverse inference against the prosecution case. It is pertinent to note that in view of the categorical admission of P.W.5 in his cross examination to the effect that except one Perumal and himself, no one was inside the shop at the time of the occurrence, the presence of P.W.2 is excluded and as such, the alleged demand and receipt of the illegal gratification inside the Chitra Stores is highly doubtful. On the other hand, the defence theory to the effect that the amount was thrusted into the hands of the accused by P.W.5 and the accused has thrown out the currency notes on the road, is more probable. It is also pertinent to note that P.Ws.2, 5 and 7 have also categorically admitted that the tainted currency notes were thrown out by the accused on the road.
26. It is seen that P.W.7, the Inspector, who has conducted the trap, has categorically stated in his chief examination that the amount was thrown out by the accused and the same was collected by one Prasad, the official witness, at the instruction of P.W.7. It is pertinent to note that P.W.7 has claimed that the said official witness Prasad is an independent witness. Even the said material witness, viz., Prasad, was not examined by the prosecution and he has been withheld by the prosecution without assigning any valid reason. In view of the same, this court has no hesitation to draw an adverse inference for withholding the material as well as the official witness, Prasad who has collected the tainted currency notes from the road as per the instruction of P.W.7.
27. Added to all these infirmities, it is also pertinent to note that P.Ws.2, 5 and 7 have categorically stated that only after the collection of the tainted currency notes by the official witness Prasad, the Phenolphthalein test was conducted by P.W.7 and as a result, the Phenolphthalein test has become a futile exercise by P.W.7-the Inspector of Police. The above said factor also further probablises the defence theory of thrusting the tainted currency notes into the hands of the accused while he came out of the Chitra Stores premises by P.W.5 and thereafter, the accused has thrown out the currency notes on the road and only in the said circumstances, the Phenolphthalein test was conducted after the recovery of the tainted currency notes from the road. At this juncture, it is also relevant to note that according to P.Ws.2 and 5, the accused after the receipt of the amount inside the shop, came out and was proceeding towards his two wheeler by counting the money. P.W.7, the Inspector of Police also claimed that he has seen the accused coming out of the Chitra Stores by counting the amount as identified by P.W.5 and thereafter, introduced himself to the accused. But P.W.5 has admitted in his cross-examination that the accused has not counted the currency notes. Even assuming that if at all the accused demanded and received the amount as illegal gratification, he could have very well put the amount inside his pant pocket or shirt pocket while he was inside the Chitra Stores and he could not have kept the same in his hands till the arrival of P.W.7 along with his team. The prosecution story to the effect that the accused came out of the shop and counted the money is highly doubtful. The categorical admission of P.W.5 in the cross examination that the accused has not counted the currency notes raises further doubt about the veracity of the prosecution version and on the other hand, probablises the defence theory of the explanation offered by the accused to the effect that the tainted currency notes were thrusted into his hands while he was coming out of the Chitra Stores and he has thrown out on the road. It is already pointed out that the tainted currency notes have been recovered by the officer one Prasad as per the instructions of P.W.7 and as such, this Court is of the considered view that the accused has come forward with plausible and probable explanation even at the earliest point of time and such defence was taken by the accused even during the course of cross-examination of P.Ws.2, 5 and 7 and during the course of examination under Section 313 Cr.P.C. It is also relevant to note that P.W.7 has categorically stated in his chief examination that after instructing the official Prasad to collect the currency notes from the road, he has enquired the accused whether he has received the bribe amount and for that, the accused has replied. Curiously and strangely, the said reply of the accused was not stated by P.W.7 in his evidence. It is also seen that P.W.8, the Inspector of Police has also stated in his evidence that he has interrogated the accused on 30.09.2002, but he has not recorded his statement. All these factors would go to show that the prosecution has suppressed the earliest version of the accused. Therefore, it is crystal clear that the entire trap proceedings is bristled with infirmities, inconsistencies, doubts and improbabilities.
28.0. At this juncture, it is relevant to refer the following decision of the Hon'ble Apex Court.
28.1. In Union of India Vs. Purnandu Biswas reported in 2005 (12) SCC 576, the Hon'ble Apex Court has confirmed the judgment of acquittal passed by the High Court on the ground that absence of proof of demand and doubts and improbabilities in the prosecution version as to trap. The Hon'ble Apex Court in that decision has held as hereuner :
"36. In this case demand of illegal gratification by the respondent has not been proved. ....
37. Mr.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691) relied upon by Mr.Sharan, was rendered having regard to the contention raised therein that it was not enough that some currency notes were handed over to the public servant to make it as acceptance of gratification ; prosecution has a further duty to prove that what was paid amounted to gratification."
The Hon'ble Apex Court in the said decision has agreed with the findings of the High Court in respect of the doubts and improbabilities regarding the trap conducted by the prosecution and confirmed the judgment of acquittal passed by the High Court.
28.2. The Hon'ble Apex Court in Venkatasubba Rao V. State reported in 2007 (3) SCC (Cri.) 175 has also disbelieved the prosecution version in view of the illegalities in the trap proceedings holding that the manner in which the trap proceedings were undertaken is questionable and ultimately set aside the impugned judgment of conviction and sentence passed by the High Court. The Hon'ble Apex Court in the said decision has held as hereunder :
"14. Illegalities committed in the trap proceedings are galore. The complaint, Exhibit P-3 was made on 11-12-1988. PW 2 did not state that he was asked to report on the next day.
15. According to PW 2, he had attended his office on 12-12-1988 at 2.30 p.m., but the documentary evidence brought on records established that he met the Inspector at 12.30 p.m. According to PW 6, it takes at least 2 to 3 hours to commence pre-trap proceedings, but in this case it was arranged within 40 minutes. The trap party proceeded in an official car. Eight persons travelled in the same car. Why so many persons travelled in one car, is not explained. Why so many persons had to travel together is also beyond our comprehension. A trap proceeding envisages secrecy and not a wide publicity. It reached Chodavaram at about 6.10 p.m. PW 2, admittedly, was not travelling with them. He was taken to the spot by the said Shri Ram Murthy.
16. PW 2 did not know DW 1 at all. It was DW 1 who not only led the raiding party to the house of the appellant, he pressed the call bell also. Why services of an unknown person, who was not known to PW 2, were taken, remained to be explained. Even the circumstances in which his services had to be obtained were not disclosed.
17. The appellant, at that time, had already taken his dinner. They were, allegedly, taken inside a bedroom, which is again wholly unlikely.
18. According to PW 2, after him several other persons entered the room whom he did not know. Why persons who were not connected with the raid gathered and entered into the room and even could know in which room the money was lying is a mystery.
19. Although, according to PW 2, he and the appellant met in one room alone, when the Inspector asked him to disclose as to where the money was, response came from three other persons and not from the appellant. Strangely PW 2 did not disclose the fact of availability of the money in a particular room to the Inspector."
(emphasis supplied) By pointing out the said infirmities and improbabilities in respect of the trap, the Hon'ble Apex Court in the decision cited supra disbelieved the prosecution case.
28.3. The Hon'ble Apex Court in C.M.Girish Babu Vs. CBI reported in 2009 (2) SCC (Cri.) 1 placing reliance on the earlier decision in Suraj Mal V. State (Delhi Admn.) reported in 1980 SCC (CRI.) 159 has held that, ".... 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 the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
28.4. In State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede reported in (2010) 2 SCC (Cri.) 385, the Hon'ble Apex Court has held as hereunder :
"21. Even in a case where the burden is on the accused, it is well known, the prosecution must prove the foundational facts. (See Noor Aga v. State of Punjab [(2008) 16 SCC 417] and Jayendra Vishnu Thakur v. State of Maharashtra [(2009) 7 SCC 104]."
28.5. The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, as pointed out in the earlier portion of the judgment by this Court, there are infirmities, inconsistencies, doubts and improbabilities in respect of the entire trap proceedings.
29. This Court already held that the prosecution has miserably failed to prove the demand of illegal gratification said to have been made by the accused and as such, in the absence of proof of demand, the question of raising the presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 would not arise. Even assuming that the presumption could be raised against the accused in the instant case, it is already highlighted that the accused has come forward with probable and reasonable explanation to the effect that the amount was thrusted into his hands and as such, he has thrown out the amount on the road and ultimately, tainted currency notes were also recovered by the Officer one Prasad at the instructions of the Inspector, P.W.7. Therefore, this Court has no hesitation to hold that the accused has rebutted the presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 by offering reasonable and probable explanation, by placing reliance on the answers elicited from P.Ws.2, 5 and 7 and by preponderance of probabilities.
30. It is relevant to refer the decision of the Hon'ble Apex Court in respect of offering explanation for the receipt of the tainted amount during the course of questioning under Section 313 Cr.P.C. The Hon'ble Apex Court in Trilok Chand Vs. State of Delhi reported in AIR 1977 SC 666 has held that, "The degree and the character of the burden of proof which Sec.4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. .... In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour : it is not necessary for him to establish his case beyond a reasonable doubt."
31. In yet another decision in Man Singh VS. Delhi Admn. reported in AIR 1979 SC 1455, the Hon'ble Apex Court has held as hereunder:-
"It is well-settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted."
32. In State of Tamil Nadu V. Krishnan & Another reported in VII (2000) SLT 266 the Hon'ble Apex Court has held as follows :
"the version of planting the amount by the prosecution witness is probabilised coupled with the fact that the prosecution version of the demand of bribe and the circumstances under which the said demand was made is suspect."
33. The Hon'ble Supreme Court of India has held in PUNJABRAO V. STATE OF MAHARASHTRA reported in 2004 SCC (CRI.) 1130 that, "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 the 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. ... It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, .."
34. In State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede reported in (2010) 2 SCC (Cri.) 385, the Hon'ble Apex Court has held as hereunder :
"16. .... indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
35. The principles laid down by the Hon'ble Apex court in the decisions cited supra are squarely applicable to the facts of the instant case as it is already pointed out that the prosecution has not only miserably failed to prove the demand of illegal gratification said to have been made by the accused but also the entire trap proceedings is bristled with serious doubts and improbabilities. Above all, it is also pointed out earlier that the accused has offered a probable and reasonable explanation to the effect that the currency notes were thrusted into his hands by P.W.5 and he has thrown out the notes on the road and such explanation is probablised as per the reasons assigned earlier and the accused rebutted the presumption by placing reliance on the circumstances and the answers elicited from P.Ws.2,5 and 7 and by preponderance of probabilities.
36. In view of the aforesaid reasons, this court has come to the irresistible conclusion that the impugned judgment of conviction is unsustainable in law. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant by the learned Principal Special Judge for CBI cases, Chennai in CC.No.13/2003 by the judgment dated 04.08.2005 are set aside and the appellant is acquitted of all the charges levelled against him. Fine amounts paid, if any, are directed to be refunded to the appellants. Bail bonds executed, if any, shall stand terminated.
ap/gg To
1.The Principal Special Judge for CBI cases Chennai.
2.The Inspector of Police SPE/CBI/ACB/Chennai.
3.The Special Public Prosecutor for CBI Cases, High Court, Chennai