Madras High Court
Rathinasami vs The Deputy Superintendent Of Police on 11 June, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.06.2014
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CRL.A.No.1916/2003
Rathinasami Appellant
Vs
The Deputy Superintendent of Police
Vigilance and Anti Corruption, Erode Respondent
Prayer:- This Criminal Appeal is filed against the judgement dated 23.12.2003 made in CC.No.21/2000 by the learned Chief Judicial Magistrate cum Special Judge, Erode.
For Appellant : Mr.C.R.Malarvannan
For Respondent : Mr.A.N.Thambithurai, APP
JUDGEMENT
This Criminal Appeal is filed against the judgement dated 23.12.2003 made in CC.No.21/2000 by the learned Chief Judicial Magistrate cum Special Judge, Erode, thereby convicting and sentencing the Appellant/ Accused for the offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.500/-, in default, to undergo two months Rigorous Imprisonment, for each offence and order ing the sentences to run concurrently.
2. The case of the Prosecution is that PW.2 Deivasigamani, PW.3 Kuppusami and PW.4 Murugesan, who are the residents of Kangeyam Taluk, in 1997 have decided to start a Power Loom Factory. For the said purpose, they submitted applications to the Collector Officer at Erode for loan. PW.7 Superintendent forwarded the said applications to the Kangeyam Tahsildar Officer on 7.7.1997. PW.2 to PW.4 submitted their applications to the Appellant who was in charge of the loan section in the said Office. The Appellant directed PW.2 to PW.4 to get a certificate from PW.9 Revenue Inspector, Vellakovil. PW.9 after getting reports from PW.8 and PW.10 forwarded the files Ex.P9 and Ex.P10 to the Appellant and again the files were sent to PW.9 for making some corrections. On 28.8.1997, the accused got back the file from PW.9 through PW.2 to PW.4. On that day, the accused demanded Rs.500/- each from PW.2 to PW.4, for which they refused. Again on 9.9.1997 PW.2 to PW.4 met the accused and the accused reduced the bribe amount to Rs.250/- and directed them to give the bribe amount on 10.9.1997 at 5.00 p.m. Since PW.2 to PW.4 were not willing to pay the bribe amount, they made a complaint to PW.11, the Inspector, Vigilance and Anti Corruption, Erode on 10.9.1997. On receipt of the complaint, PW.11 registered the First Information Report and arranged for trap proceedings. On 11.9.1997, the trap was held. As per the trap arrangement, PW.2 to PW.5 went to the office of the accused. When the accused demanded amount, PW.2 gave the currency notes containing Rs.750/- and the accused was caught red handed and put on trial and charge sheet was filed for the offence under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 against the Appellant/accused.
3. The case was taken on file in CC.No.21/2000 by the learned Chief Judicial Magistrate cum Special Judge, Erode and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.12 and also marked Exs.P1 to P27 and Mos.1 to 7. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
4. Mr.C.R.Malavannan, the learned counsel for the Appellant vehemently contended that the Prosecution has miserably failed to prove its case by adducing clear and consistent evidence. It is contended that the Prosecution has not proved the alleged demand of bribe said to have been made by the accused prior to the trap as well as at the time of trap. The learned counsel would point out that in so far as the demand prior to the trap is concerned, even according to the the Prosecution, though PW.2 to PW.4 have met the Appellant for four times, but no bribe was demanded on such occasions. The alleged demand was made for the first time on 28.8.1997. The learned counsel further pointed out that there was no follow up action by the witnesses after they were asked to come in the third week of August 1997. However, the evidence disclosed that the Appellant had processed the loan files of PW.2 to PW.4 without waiting for them and the signature of Tahsildar was obtained The learned counsel pointed out to the evidence of PW.6, Deputy Tahsildar and submitted that on the date of alleged demand on 9.9.1997, the entire work on those files was over and the files were handed over to PW.2 himself on 9.9.1997, which was acknowledged by him. Thus, it is evidently clear that PW.2 was aware that the loan applications of PW.2 to PW.4 were processed and approval for sanction of loan was given by the Deputy Tahsildar even on 9.9.1997.
5. The learned counsel for the Appellant, in so far as the recovery of Rs.750/- from the Appellant by PW.11, Trap Laying Officer is concerned, would contend that the accused has admitted the receipt of the amount, but he has given reasonable explanation to the effect that he has received the said amount only towards flag day collection and the said version of the accused is probabilised by the evidence of PW.6. It is pointed out that PW.6, Deputy Tahsildar has admitted in his cross examination that targets have been fixed for flag day collection. It is further pointed out that the accused has offered his explanation even at the time of trap and PW.11 had seized Ex.P2 receipt book for flag day collection. The learned counsel contended that had there been no explanation from the accused, there was no necessity for the Trap Laying Officer to seize the said Register, however, deliberately the same had not been sent to court along with other documents. Therefore, it is contended that the accused has offered probable and reasonable explanation and the said explanation is sufficient in view of the principles laid down by the Honourable Supreme Court to the effect that the accused can substantiate his version by preponderance of probability.
6. In support of his contention, the learned counsel for the Appellant placed reliance on the decision of the Honourable Supreme Court reported in 1997-10-SCC-600 (Mohmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra) and the decision of this court reported in 2011-2-LW-Crl-450 (T.M.Shanmughavelu Vs. N.Dhandapani).
7. Per contra, Mr.A.N.Thambidurai, the learned Additional Public Prosecutor for the Respondent would contend that the Prosecution has proved its case by adducing clear and consistent evidence through PW.2 to PW.5 and PW.11. It is contended that the Prosecution has proved the demand as well as acceptance of the illegal gratification. The learned Additional Public Prosecutor would submit that though the defence pointed out certain inconsistencies in the Prosecution version, the same would not affect the main case of the Prosecution. The learned Additional Public Prosecutor would submit that the loan applications of PW.2 to PW.4 having been recommended by PW.6 Deputy Tahsildar even on 9.9.1997 would not be a ground to disbelieve the Prosecution case. What is material is the acceptance of money by the accused and he was not in charge of receiving any flag day collection and one Ravi is the person who was in charge of flag day collection. Therefore, he would submit that the Prosecution case stands fully substantiated by the evidence adduced in this case.
8. This court heard the submissions of the learned counsel on either side and also perused the materials placed on record.
9. The legal position, which emerges regarding appreciation of evidence in a trap case, can be summarized as under:-
(i) To succeed in such a case, the Prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money.
(ii) A presumption as to the demand of bribe can be drawn if the tainted money is recovered from the possession of the accused, which presumption, of course, is rebuttable.
(iii) However, if the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond reasonable doubt.
10. The genesis of a trap case lies in the previous demand of bribe by the accused from the complainant, which becomes the basis of laying trap by the investigating agency. Then, it is for the investigating agency to again prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond reasonable doubt.
11. The Appellant was working as an in Assistant in the Taluk Office, Kangeyam and the case of the Prosecution is that he demanded Rs.500/- and later, it was reduced to Rs.250/- from PW.2 to PW.4 to process their loan applications. PW.4 had applied in the first week of June 1997 and PW.2 and PW.3 had applied in the third week of June at the Collector's Office, Erode. The said loan applications were returned to them for submitting it to Kangeyam Taluk Office and accordingly, the applications were submitted to the accused, who has to process it. The accused had asked them to come after two days. Two days after when PW.2 to PW.4 met the accused, they were asked to get a report from PW.9 Revenue Inspector, Vellakovil. After obtaining a report from PW.9, they had met the accused only in the third week of August 1997 and they were informed about the report being sent back to PW.9 for certain shortcomings. PW.2 to PW.4 after rectification obtained the file from PW.9 and had met the accused on 28.8.1997. Admittedly, on all the above four occasions when they met the accused, no demand of bribe was made and only on 28.8.1997, the accused is said to have demanded Rs.500/- from each of them for processing the applications. PW.2 to PW.4 had met the accused again on 9.9.1997 and when they expressed their inability to pay such sum, it was reduced to Rs.250/- each and specifically directed them to give it within 5.00 p.m. on the next day i.e. on 10.9.1997 and told them that he would not recommend for the loan if the money was not paid on 10.9.1997. On 10.9.1997 PW.2 gave a written complaint to PW.11 Inspector of Police, Vigilance and Anti Corruption.
12. Even though the demand of bribe was made on 28.8.1997 and when PW.2 to PW.4 decided not to give any bribe, the complaint was given only on 10.9.1997. In the complaint, there is no explanation for the said delay. The absence of any explanation for not preferring the complaint on 28.8.1997 or immediately thereafter creates a doubt in the Prosecution case. In this case, the evidence clearly disclosed that even on 9.9.1997, the Deputy Tahsildar had recommended loan applications and those applications were handed over to PW.2 on the said day itself.
13. PW.6, the Deputy Tahsildar has spoken to the said fact even in his chief examination and stated that on 9.9.1997 approval for sanctioning loan has been made by the Tahsildar and those applications had been handed over to PW.2 to submit to the District Collector, Erode. In fact, PW.2 had acknowledged the receipt of those applications. The signature of PW.2 for having received the files is found in Ex.P13 . The evidence of PW.6 indicated that the accused has no right to reject the loan application once it is processed and recommended by the Tahsildar.
14. Admittedly, on 10.9.1997, there was no demand though the work was over. Even on 11.9.1997, the accused was said to have asked whether PW.2 had brought what the accused had asked. The defence of the Appellant was that he did receive the money as stated by the Prosecution, but the same was not as a bribe but as flag day collection. In this context, it is relevant to refer to the evidence of PW.6 the Deputy Tahsildar. He has stated that the District Collector has fixed a target for each Taluk Office and the staff working in various sections would collect flag day collection and hand it over to the concerned clerk who in turn would issue receipt and the said receipt will be handed over to the payee. He has further stated that flag day collection had been made from four persons and entered into in Ex.P22 flag day collection register.
15. The Appellant has been consistently stating that the amount received from PW.2 is towards flag day collection and as Ravi, Clerk, who was in charge had left the office for taking tea, the Appellant was having the money for handing over the money to Ravi. It appears that the Appellant has given his explanation for having possession of tainted money that it was paid towards flag day fund by PW.2 for himself and on behalf of PW.3 and PW.4, but the same has not been recorded by the Trap Laying Officer. If the Appellant/ accused had not offered any explanation to PW.11 Trap Laying Officer, then there was no necessity for PW.11 to seize Ex.P22 flag day fund receipt book from PW.6. But, conveniently the said document had not been sent to the court, when he had sent the other documents seized from the office. In the context of the practice followed in the said office, the defence put forward by the accused that he received a sum of Rs.750/- from PW.2 towards collection for flag day fund is probable and acceptable. If really PW.2 was annoyed with such a demand which if he were to think was not for a public cause, there was no reason why should he wait for a few days before approaching the Anti Corruption Authorities. The evidence disclosed that even on 10.9.1997, PW.2 had come to the Taluk Office with the money, but the trap could not succeed as the Appellant asked him to come on the next day as Collector was visiting Vellakovil. If really PW.2 was annoyed on the demand made by the Appellant, he would have complained to the higher officer who visited the office on 10.9.1997. Therefore, the explanation of the accused that he received the amount of Rs.750/- towards flag day fund is more probable and therefore, the benefit of doubt must go to the accused.
16. In the present case, the explanation given both during cross examination of Prosecution witnesses and in his own statement recorded under Section 313 of Cr.PC 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 seized the flag day fund collection.
17. 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 under Section 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 under Section 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 if establishing the whole case, the guilt of the accused beyond a reasonable doubt.
18. 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 under Section 20 of the Act and therefore, he is liable to be acquitted of the charges levelled against him.
19. For the aforesaid reasons, I am unable to sustain the conviction of the accused and accordingly, this criminal appeal is allowed and the impugned judgement of conviction and sentence imposed on the Appellant is 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.
11.06.2014 Index:Yes/No Web:Yes/No Srcm To:
1.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Erode
2. Chief Judicial Magistrate cum Special Judge, Erode.
3.The Public Prosecutor, High Court, Madras ARUNA JAGADEESAN, J.
Srcm CRL.A.No.1916/2003 11.06.2014