Madras High Court
Kumar vs / on 19 December, 2017
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.798 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 05.06.2023 Pronounced on: 09.06.2023
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A.No.798 of 2017
Kumar,
S/o.Ganapathy. ... Appellant/Accused
/versus/
The State rep. by
The Inspector of Police,
Vigilance and Anti-Corruption,
Trichy.
(Crime No.12/2012)
Central Prison, Trichy. ... Respondent/Complainant
Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C., read with
27 of the Prevention of Corruption Act, 1988, pleased to call for the records and
set aside the conviction judgment made against the appellant in Special Case No.2
of 2013, dated 19.12.2017 passed by Chief Judicial Magistrate/Special Judge,
Ariyalur and set him at liberty.
For Appellant : Mr.G.Pugazhenthi
For Respondent : Mr.S.Udaya Kumar
Government Advocate, (Crl.Side)
_____________
Page No.1/37
https://www.mhc.tn.gov.in/judis
Crl.A.No.798 of 2017
JUDGMENT
The appellant as a Public Servant working as an Assistant in District Educational Office, Udayarpalayam, Ariyalur District was found guilty of receiving bribe of Rs.6,000/- and hence, the trial Court convicted him for the offence under Sections 7 and 13 (2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo 5 years S.I and to pay fine of Rs.6,000/- in default to undergo 1 year S.I for the offence under Section 7 of the Prevention of Corruption Act, 1988 and to undergo 7 years S.I and to pay fine of Rs.6,000/- in default to undergo 1 year S.I for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
2. The case of the prosecution is that, the appellant/accused was working as an Assistant in the District Educational Office, Udayarpalayam, Ariyalur District. Based on the report dated 31.07.2012 of Thiru.Edwin Amalraj, Head Constable, Detective Dog Squad, Trichy City Police alleging that, the appellant/accused demanded sum of Rs.6,000/- for processing his wife Tmt.Rani's pay fixation and arrears of salary, who was working as Physical Education Teacher at Alangara Annai Girls Higher Secondary School, Varadharajanpettai, Ariyalur _____________ Page No.2/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 District as an illegal gratification other than legal remuneration from him as a motive or reward, a case was registered against the appellant/accused under Section 7 of P.C Act and the trap was organized in the presence of official witnesses. The appellant/accused on 01.08.2012 was caught red-handed. While reiterating his earlier demand and acceptance of tainted money of Rs.6,000/- as a motive or reward by corrupt and illegal means from the said Thiru.Edwin Amalraj, who was examined as P.W-2 in the presence of accompanying official witness Tr.Sebestin Elmo Christy, who was examined as P.W-4. Hence, thereby committed the offence of criminal misconduct and punishable under Section 13(2) r/w 13(1)(d) of P.C Act.
3. After completion of Investigation, the Investigating Officer filed the report. The Additional District Court-cum-Chief Judicial Magistrate, Ariyalur, took the case on file in Spl.C.No.2 of 2013 and framed the charges against the accused under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and tried the accused.
_____________ Page No.3/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017
4. To prove the charges, the prosecution examined 19 witnesses (P.W.1 to P.W.19) and marked 32 exhibits (Ex.P.1 to Ex.P.32) and 3 material objects (M.O.1 to M.O.3). On the side of the defence, marked 5 exhibits (Ex.D.1 to Ex.D.5). Due to the constitution of the Chief Judicial Magistrate Court at Ariyalur, the case has been transferred to the Hon'ble Chief Judicial Magistrate/Special Judge, Ariyalur.
5. The trial Court, after considering the oral and documentary evidence, found the accused/appellant guilty and sentenced him to undergo 5 years S.I and to pay fine of Rs.6,000/- in default to undergo 1 year S.I for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo 7 years S.I and to pay fine of Rs.6,000/- in default to undergo 1 year S.I for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
6. Being aggrieved by the order of conviction and sentence passed by the trial Court, the present Criminal Appeal is filed. _____________ Page No.4/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017
7. The Learned Counsel appearing for the appellant submitted that, the accused is entitled to get acquittal from the charges framed against him. The prosecution has miserably failed to prove its case by adducing clear and consistent evidence as against the accused. Initially, the demand alleged to have taken place on 31.07.2012 at about 12.00 noon, when P.W.2 Edwin Amalraj, the defacto complainant met the accused/appellant at his Office in Udayarpalayam. At that time, it is alleged the accused demanded a sum of Rs.6,000/- as bribe to complete the formalities of payment of salary to the wife Rani of the P.W-2. The prosecution has attempted to prove the said allegation through Ex.P.2 (Complaint), Ex.P-25 (F.I.R) and P.W-2 the defacto complainant. On the other hand, the defence has established through oral and documentary evidence that, on 30.07.2012 and 31.07.2012, the accused was not available at his Office and he was on other duty.
8. In the cross examination of P.W.5, P.W.6, P.W.7 and P.W.8 they have categorically stated that, the accused had gone for Treasury Office on 30.07.2012 and 31.07.2012 and there is no possibility to met the accused by PW-2 at his Office on 31.07.2012 at 12.00 noon. This fact is corroborated under Ex.P.10 _____________ Page No.5/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 (Attendance Register), Ex.P.11 (Movement Register), Ex.D-1 (Entry in Movement Register dated 30.07.2012 & 31.07.2012) and Ex.D-4 Attendance Registrar dated 30.07.2012 & 31.07.2012.
9. The prosecution has raised doubt over the veracity of Ex.P.10 (Attendance Register) and Ex.P.11 (Movement Register) through PW-18, Azhagumalai, Trap Laying Officer by stating that, the signature of the accused alone found and the signature of the Superior is not found in the said documents. Therefore, P.W.6, P.W.7 and P.W.8 were recalled and during the cross examination have stated that, Ex.P-10 and Ex.P-11 are genuine documents and the entries made on 30.07.2012 and 31.07.2012 in respect of the accused is true and genuine.
10. Further, the Learned Counsel for the appellant submitted that, the prosecution has made an attempt to say that the accused may be available at Office even during the other duty hours. In other words, the accused might have come to the Office when he was on other duty. But, the defence has proved through P.W.6, P.W.7 and P.W.8 that the accused did not come to the Office when he was on other duty either on 30.07.2012 or on 31.07.2012. Therefore, the prosecution _____________ Page No.6/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 failed to establish that the accused was available in his Office on 31.07.2012 at 12.00 noon and P.W.2 met him on that day. The prosecution has not proved the demand of illegal gratification on 31.07.2012 at 12.00 noon that is prior to the registration of the case. Therefore, mere receipt of tainted amount by the accused is not sufficient to prove the guilt of the accused under Prevention of Corruption Act in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
11. In support of this submission, the Learned Counsel has relied the following judgments:-
(i). In Arokiaraj and another -vs- State by Inspector of Police, Vigilance and Anti Corruption, Chennai City-I Detachment, Chennai reported in 2014 SCC OnLine Mad 13046, wherein, the judgment of the Hon'ble Supreme Court has held that:-
“15. Mere proof of receipt of money by the 2 nd _____________ Page No.7/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 Appellant, in the absence of proof of demand of illegal gratification is not sufficient to prove guilty of the accused. It is well settled by a catena of decisions of the Honourable Supreme Court 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. The Honourable Supreme Court has held in T. Subramanian v. State of Tamil Nadu ((2006) 1 LW (Cri) 269 : (2006) 1 SCC (Cri) 401) thus:
“Mere proof of receipt of money by accused, in the absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilty of the 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.”
(ii). In Rajamani -vs- State by Inspector of Police, V and AC, Vellore, Vellore District reported in (2017) 4 MLJ (Crl) 188, wherein, the judgment of the Hon'ble Madras High Court has held that:-
16....Mere recovery of money alone will not mean to _____________ Page No.8/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 presume that the money was received for illegal gratification.
Unless, evidence let in by the prosecution proves the payment of money is a bribe money and it was received by the accused as a ratification to do an unlawful act. In this regard, it is relevant to extract paragraph Nos. 20 & 23 of the said judgment:-
"20. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
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23. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the _____________ Page No.9/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.
Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act.
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. However, before 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
(iii). In N.Vijayakumar -vs- State of Tamil Nadu reported in (2021) 1 MLJ (Crl) 517, wherein, the judgment of this Hon'ble High Court has held that:-
_____________ Page No.10/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 “12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the Accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case Under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that Accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption Under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under:
7. Insofar as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the Accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments _____________ Page No.11/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1: (2013) 2 SCC (Cri.) 89] and C.M. Girish Babu v. CBI (2009) 3 SCC 779:
(2009) 2 SCC (Cri.) 1].
8. In the present case, the complainant did not support the prosecution case insofar as demand by the Accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the Accused by the complainant, to prove that the same was pursuant to any demand made by the Accused.
When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the Accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the Accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the Accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the Accused. In fact such possession is admitted by the Accused himself. Mere possession and recovery of the currency notes from the Accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive insofar as the offence Under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn Under Section 20 of the Act is concerned, _____________ Page No.12/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 such presumption can only be in respect of the offence Under Section 7 and not the offences Under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption Under Section 20 can be drawn are wholly absent.
The above said view taken by this Court, fully supports the case of the Appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the Appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.” _____________ Page No.13/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017
12. The fact that P.W-2 met the accused in the first week of January 2012 and enquired about the salary of P.W-3 Rani is highly doubtful. During the cross examination of P.W.3, he had stated that, her appointment was approved only on 05.07.2012 and the same also informed to P.W-2 the defacto complainant by P.W.3 (Rani).
13. P.W-5, Narayanarasu, District Educational Officer has stated that, P.W.3, Rani is entitled to claim salary only after 05.07.2012, but not before 05.07.2012. Ex.D-3 the proceedings dated 05.07.2012 corroborates the fact that, the appointment of P.W-3 Rani was approved by PW-5 (DEO) on 05.07.2012. P.W-5, (DEO), during his cross examination had categorically stated that, requisition for approval of appointment of PW-3 Rani was sent for approval by School only on 22.06.2012 and the same is corroborated by Ex.P-8. Therefore, salary will be paid to P.W-3 Rani only after her appointment is approved. The Proceedings dated 05.07.2012 which is marked as Ex.P-15 through PW-5 (DEO) and Ex.D.1 Movement Register by P.W-5 establish the fact that, P.W-2 the defacto complainant could not have met the accused in the 1st week of January 2012 in _____________ Page No.14/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 respect of payment of salary of his wife. As such, P.W-2, the defacto complainant and his wife P.W-3 Rani are not trustworthy witnesses.
14. The complaint (Ex.P.2) and the registration of the First Information Report (Ex.P.25) by the respondent police are highly doubtful. The specific case of the prosecution in respect of lodging of the complaint and the registration of the F.I.R is that, P.W.2 the defacto complainant lodged the complaint (Ex.P-2) before P.W-18 (Trap Laying Officer) at 4.00 p.m on 31.07.2012 and First Information Report (Ex-P25) was registered at 6.00 p.m. Ex.P-2 (complaint), Ex.P-25 (FIR) and the evidence of P.W.18 (Trap Laying Officer) are seems to be proved the fact. But, contra to the above, P.W-2 in his cross examination has stated that, on 31.07.2012, he met the accused at 12.00 pm at Udayarpalayam, met his wife (P.W.3) at Varadarajanpettai, Ariyalur District, at about 4.00 p.m, in consultation with her in respect of the demand of bribe made by the accused, proceeded to Vigilance Office and reached Trichy at about 7.30 p.m. Therefore, the complaint and the time of registration of the F.I.R is doubtful and the same is not reliable. The perusal of Chief and cross examination of PW-2 shows that, his evidence is not unreliable. P.W-18 Trap Laying Officer has _____________ Page No.15/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 deposed that, after registration of the F.I.R at 6.00 p.m, sent phone message and letters to the Executive Engineer, TWAD Board and the Office of Assistant Director of Internal Audit to send an Officer for the witness to the trap proceedings on 31.07.2012. The letters were marked as Ex.P.29 and Ex.P.30 reveals that, those letters are received by the respective offices on 31.07.2012. As per Ex.P-29, P.W-4 Sebastain Elmo Christy was deputed to attend at Vigilance Office on 01.08.2012 at 6.30 hours. In particular, the requisition letters (Ex.P.29 and Ex.P.30) sent by PW-18 (TLO) to the Office of the shadow witnesses on 31.07.2012 and the shadow witness namely P.W-4 appeared before the Vigilance Office on 01.08.2012 at 6.30 am. But, P.W-4, during his cross examination has stated that, on 31.07.2012, he went to the Vigilance Office at about 4.30 p.m. The prosecution case is that, F.I.R was registered at 6.00 p.m, requisition letters (Ex.P.29 and Ex.P.30) sent by P.W-18 (Trap Laying Officer) to the office of the shadow witnesses on 31.07.2012 at 8.00 p.m. Therefore, the prosecution has not come with clean hands and raise serious doubt over the prosecution case.
15. The accused/appellant is not an authority to sanction the arrears and salary for PW-3 Tmt.Rani and the salary bill for the month of July along with _____________ Page No.16/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 arrears cannot be sent to the Treasury for encashment before 31.07.2012 by the accused. PW-5 (DEO), during his cross examination has stated that, he is the authority for certificate verification, appointment approval, payment of arrears of salary and the accused is not empowered to do the same. The arrears bill includes the salary for the month of July 2012, was kept in the office since the same can be submitted to Treasury only after 01.08.2012. There is no delay on the part of the accused in handling the files of PW-3 Tmt.Rani. As per the evidence of P.W-5, appointment approval of the PW-3 was prepared by the accused on 04.07.2012 and the same was approved on 05.07.2012.
16. Preliminary enquiry was not been conducted as stated by the prosecution in the complaint (Ex.P-2) and F.I.R (Ex.P-25). After receipt of the complaint, the Vigilance Police has to conduct preliminary enquiry to know about the character of the accused but there is no material to prove the fact of conducting of preliminary enquiry. P.W-18 (TLO) in his cross examination has stated that, the preliminary enquiry is secret one and the same should not be disclosed to anyone. Time of trap proceedings is not corroborated by the witnesses P.W-5 to P.W.13, P.W.15 and P.W.16. According to P.W-2, P.W-4 and PW-18 (TLO) the _____________ Page No.17/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 trap was conducted on 01.08.2012 at about 11.45 a.m but, all the witness examined from the office of DEO have deposed that Vigilance Police came to the DEO Office at about 10.10 am. Therefore, the time of trap as projected by the prosecution is doubtful. According to the deposition of the above witnesses, the Vigilance Police came to the Office of the D.E.O at Udayarpalayam between 10.00 a.m to 10.30 a.m.
17. None of the documents prepared at the DEO was witnessed by the Officers who were present at the time of trap, this creates doubt about the prosecution case. After completion of the trap, Seizure Mahazar (Ex.P.13), Observation Mahazar (Ex.P.14) and other documents were prepared and witnessed by the P.W-18, P.W.4 and other witnesses brought by the Vigilance. P.W.18 has not made any attempt to obtain signature from the officers working at DEO. The mandatory requirement of recording of explanation of the accused immediately after completion of the trap proceedings is not complied with. Absolutely, there is no evidence to show that, immediately after the trap proceedings, explanation of the accused was recorded by PW-18 (TLO). PW-19, the Investigating Officer has recorded the statement from the accused only on 10.09.2012. Non compliance of _____________ Page No.18/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 the said mandatory requirement will vitiate the entire prosecution as held by the judgment of this Hon'ble High Court of Madras reported in CDJ 2013 MHC 2523 State and others -vs- M.L.Rajan Asst. Educational Officer, Thimiri.
(i). In Inspector of Police, Vigilance & Anti Corruption, Vellore
-vs- M.L.Rajan, Asst. Educational Officer, Arcot reported in CDJ 2013 MHC 2523, wherein, the judgment of this Hon'ble High Court has held that:-
“16. It is incumbent upon the investigating officer to record the statement of the accused immediately after the trap, as per Rule 47 of DVAC Manual which reads as follows:
47. Questioning of Accused Officer (1) Questioning of the Accused Officer and recovery of the bribe money should be after the phenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer's statement, if any. In this event, the provisions of Section 27 of the Indian Evidence Act would be available to the prosecution.
(2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary under section 162 of the Code of Criminal Procedure, 1973. If _____________ Page No.19/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No. 33979/VAC-4/76, dated 10th December, 1976] The failure on the part of the Trap Laying Officer to record statement from the accused immediately after the arrest would vitiate the entire proceedings.
17. There is no evidence on the part of the investigating officer whether he recorded such statement from the accused immediately after the trap. In the absence of such statement, it has to be necessarily observed that the benefit of doubt has arisen to the accused.”
(ii). In K.P.Kolanthai -vs- State by Inspector of Police, Anti Corruption Wing, Dharmapuri reported in (2019) 3 MLJ (Crl) 713, wherein, the judgment of this Hon'ble Court has held that:-
“12. At the outset, the legal position, which emerges regarding appreciation of evidence in a trap, can be summarized as under:-
"(i) To succeed in such a case, the Prosecution is obliged to _____________ Page No.20/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
(ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv) 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 all reasonable doubt."
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43. It is well settled law that if the Prosecution is successful in proving the recovery of tainted money from the possession of the accused, then a legal presumption arises that the accused had accepted or obtained the illegal gratification. Of course, this presumption is rebuttable. It is however not necessary that the required presumption is to be rebutted by the accused with the _____________ Page No.21/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 same standard of proof, as is expected of the Prosecution for recording a finding of conviction against him. The accused can validly rebut the above presumption by preponderance of probabilities and other circumstances appearing in the Prosecution evidence itself.”
18. The requisition for approval of appointment of P.W-3 Tmt.Rani was submitted by the School on 22.06.2012, approval order prepared by the accused on 04.07.2012 and signed by P.W-5 on 05.07.2012 (Ex.P-15). Then, salary arrears bill dated 19.07.2012 (Ex.P-12) was submitted by the School. The above facts revealed that, there is no delay on the part of the accused. According to the prosecution, P.W-18 (TLO) has seized the attendance register (Ex.P-10) and movement register (Ex.P-11) as the same reveal that, the accused was on other duty on 30.07.2012 and 31.07.2012. The accused had dislodged statutory presumption pointed against him by way of cross examination and producing the defence exhibits.
19. The Learned Counsel appearing for the appellant strongly emphasis the fact that there was no delay in processing the salary bill of Tmt.Rani, the wife of the defacto complainant and the allegation of demanding of Rs.6,000/- _____________ Page No.22/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 to forward the salary bill not proved particularly when the allegation that, on 31.07.2012, the accused demanded Rs.6,000/- as bribe when the defacto complainant met the accused in his office, been disproved through the Attendance Register and Movement Register, which are marked as defence documents (Ex.D.1 and Ex.D.5). Having been on other duty and not in the office, the allegation that, on 31.07.2012, the accused demanded Rs.6,000/- as bribe fails. In fact, only on 20.07.2012, the file relating to the salary bill was given to the accused by P.W.5 and thereafter, as per the procedure in the Treasury, current salary bill to be presented only after 25th of the month. Further, the arrears bill should be presented on other dates. While so, the combined salary bill claimed for arrears as well as the current month could not be presented and the plausible explanation given by the accused through Ex.D.1 to Ex.D.5 was ignored by the trial Court.
20. Per contra, the Learned Government Advocate (Crl.Side) appearing for the respondent/state submitted that the contention raised by the appellant been considered by the Court below and had assigned reasons for disbelieving the defence raised by the accused. Further he stated that, P.W.5, District Educational Officer had specifically deposed that, Tmt.Rani who was _____________ Page No.23/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 appointed as Teacher in Alangara Annai Girls Higher Secondary School, Ariyalur District, which is an aided School though was appointed on 05.01.2011, she was not paid salary pending verification of her certificates. Therefore, taking into consideration of the long delay in payment of salary, she was asked to give an Indemnity Bond and after receiving the Indemnity Bond, he issued proceedings dated 05.07.2012 (Ex.P.15). This proceedings was received by the accused on 20.07.2015, in spite of the proceedings and salary bill presented by the School along with the covering letter dated 19.07.2012 handed over to the accused for further processing. The accused till 31.07.2012 did not present the bill at the Treasury, expecting bribe. These facts are borne by record. The lame excuse given by the accused for not presenting the bill in the Treasury from 21.07.2012 till 01.08.2012 does not carry any merit.
21. Further, the Learned Government Advocate (Crl.Side) appearing for the respondent submitted that the contention of the accused that tainted money was put inside the table drawer of the accused without his knowledge and demand of Rs.6,000/- is also unbelievable. Since the demand and obtainment of the money not only spoken by P.W.2, the defacto complainant but also by P.W.4, the shadow _____________ Page No.24/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 witness. The money was recovered from the table drawer of the accused by the Trap Laying Officer. The presence of phenolphthalein in the hands of the accused proved scientifically.
22. The Learned Government Advocate (Crl.Side) for the respondent submitted that the evidence for prosecution is adequate to convict the accused since demand and obtaining bribe proved and same satisfies the dictum laid by the Hon'ble Supreme Court in V.Sejappa case, which reads as below:-
(i). In V.Sejappa -vs- The State By Police Inspector, Lokayukta reported in CDJ 2016 SC 321, wherein, the judgment of the Hon'ble Supreme Court has held that:-
“18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise Under Section 20 of the Prevention of Corruption Act.
_____________ Page No.25/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 In the case at hand, all that is established by the prosecution was the recovery of money from the Appellant and mere recovery of money was not enough to draw the presumption Under Section 20 of the Act.
19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala : (2009) 3 SCC 779, it was held as under:
“18. In Suraj Mal v. State (Delhi Admn.) :
(1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) 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.” In State of Kerala and Anr. v. C.P. Rao : (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.
20. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan : (2012) 11 SCC 642, wherein it was held as under:
11. The law on the issue is well settled that demand of _____________ Page No.26/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe.
Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised Under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. 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. However, before 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.” Point for consideration:-
Whether the recovery of the money from the accused is proved to be illegal gratification received by him pursuant to the demand for processing the salary bill?
23. The judgments relied by the Learned Counsel for the appellant undoubtedly laid down the principle that, mere recovery of money from the _____________ Page No.27/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 accused is not a proof for demand or acceptance of illegal gratification. It is well settled legal principle that, while appreciating the evidence in a trap case, the prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money. For appreciation of evidence in trap case, we can find the legal position extracted below in several judgments of the High Courts and Supreme Court. For the sake of deciding the point under consideration, same is reproduced;
(i). In K.P.Kolanthai -vs- State by Inspector of Police, Anti Corruption Wing, Dharmapuri reported in (2019) 3 MLJ (Crl) 713, wherein, the judgment of this Hon'ble Court has held that:-
“12. At the outset, the legal position, which emerges regarding appreciation of evidence in a trap, can be summarized as under:-
"(i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
(ii) The demand can be proved by testimony of the _____________ Page No.28/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv) 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 all reasonable doubt."
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43. It is well settled law that if the Prosecution is successful in proving the recovery of tainted money from the possession of the accused, then a legal presumption arises that the accused had accepted or obtained the illegal gratification. Of course, this presumption is rebuttable. It is however not necessary that the required presumption is to be rebutted by the accused with the same standard of proof, as is expected of the Prosecution for recording a finding of conviction against him. The accused can validly rebut the above presumption by preponderance of probabilities and other circumstances appearing in the _____________ Page No.29/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 Prosecution evidence itself.
24. As far as the present case is concerned, the first demand alleged to have been made on 31.07.2012 at 12.00 noon. The complaint which is marked as Ex.P.2 states that, the wife of the defacto complainant joined service as Teacher in an aided School on 05.01.2011. She through her husband enquiring the District Educational Office about the salary since January 2012. The accused/appellant, who was working as an Assistant in the DEO Office and dealing her file had informed P.W.2 that the certificate verification not yet completed. Only on receipt of the verification report, about the certificates, salary bill will be presented and it may take three months to get the verification certificates. But even after six months, there was no progress in the process of verifying the certificates, therefore, the defacto complainant P.W.2 had been visiting the District Educational Office repeatedly. In such circumstances, on 31.07.2012 the demand of Rs.6,000/- to present the bill has been made. This fact found in the complaint has to be looked in the light of the deposition of P.W.3 Rani and P.W.5 the District Educational Officer, who has stated that, considering the long delay in getting the verification certificates of Rani P.W.3 was asked to give an Indemnity Bond and accordingly, she gave the Indemnity Bond. Soon thereafter, the School in which P.W.3 _____________ Page No.30/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 Tmt.Rani was employed as Teacher was asked to present the salary bill. Accordingly, salary bill was presented by the School and thereafter, papers were handed over to the accused on 20.07.2012. During the cross examination of P.W.3 Tmt.Rani she had deposed that, she joined service on 05.01.2011. On 05.07.2012, the School forwarded her salary bill along with arrears of salary and her husband went and enquired about the presentation of salary bill in the Treasury but the accused/appellant demanded Rs.6,000/- as illegal gratification to present the bill and delayed the process.
25. The documents relied by the prosecution clearly prove the fact that, though the accused has received the papers on 20.07.2012 which he could have presented in the Treasury the next day, had not done so till 01.08.2012. His explanation is that, for the salary of the succeeding month, the bill should be presented only after 25th of the current month is to be accepted, then he should have presented the bills which he has received on 20.07.2012 atleast on 25.07.2012. He has not presented the bill till 01.08.2012 and it was seized from his possession on the day of trap along with the trap money of Rs.6,000/-. It is not that, he never went to Treasury between 20.07.2012 to 31.07.2012. Even _____________ Page No.31/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 according to his own documents namely, the attendance register and movement register. The accused claims that, he was on the other duty on 30.07.2012 and 31.07.2012 and he was in the Treasury. While so, nothing prevented him from presenting the bill of P.W.3 Tmt.Rani in the Treasury. The said explanation and document are self destructive and it is clear that, he had delayed the presentation of salary bill of P.W.3 Tmt.Rani.
26. In this connection, the evidence of P.W.2, the defacto complainant gains relevance. He has stated in the chief examination that, the accused after receiving the bribe money had told that if this 'formality' been done earlier, he would have received the salary long back. This has been overhead by the shadow witness P.W.4 and he corroborates the evidence of P.W.2.
27. Regarding the recovery of tainted money, the accused admits that, the money was recovered from his table drawer. P.W.2 (Edwin Amalraj) and P.W.4 (Sebastin Elmo Christy) have deposed about the receipt of the money by the accused and after counting it, he kept the money inside the table drawer. When the prosecution witness is consistent in indicating that the money was recovered _____________ Page No.32/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 from the accused table drawer and the hands of the accused when tested with sodium carbonate solution, the colour of the solution turned light red indicating the presence of phenolphthalein and the entrustment mahazar (Ex.P.4) and recovery mahazar (Ex.P.13) indicates that, the serial number found in the tainted currency tallies, the defence of the accused fails and render improbable.
28. Regarding the plea of alibi that, on 31.07.2012, the accused was not in the Office for the whole day, the trial Court, after appreciating the Attendance Register has found that, the accused has left the office on that day i.e., 31.07.2012 at 8.00 a.m and returned at 6.00 p.m. But this was not endorsed by the Higher Officer and therefore, the suggestion put to the witnesses P.W.5 to P.W.8 that, even in case of other duty, the probability of accused coming to the Office in between cannot be ruled out. The contradiction in the Movement Register (Ex.P.11) and Attendance Register (Ex.P.10) by making entry as OD in the Attendance Register and signing the Movement Register destructs the case of the defence, even assuming that, the first demand on 31.07.2012 to be doubted, it cannot be ruled out that, there was no demand of bribe by the accused to clear the salary bill.
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29. This Court hold so because the complaint is given on 31.07.2012 stating specifically that, the demand of Rs.6,000/- as bribe to clear the salary bill. On the next day, when the trap was laid, the accused has received the bribe money and told the defacto complainant that, if he had given the bribe money earlier and comply the formality, he would have got the salary much earlier. By this statement, the demand and acceptance is proved which attracts Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
30. This is not a case of mere recovery of tainted money from the accused but a case of positive evidence adduced by the prosecution regarding demand and acceptance. The documentary evidence prove that, the salary bill of P.W.3 Tmt.Rani was not presented in the Treasury, for more than 10 days expecting money and on receiving the speed money, the accused has expressed that, had this speed money given earlier, the complainant would have got the salary much earlier. Regarding the attendance register, to show he was not present in the DEO office on 31.07.2012 and the lame excuse put forth by the accused for not presenting the bill in the Treasury between 20.07.2012 to 01.08.2012 though he _____________ Page No.34/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 had gone to the Treasury on 30.07.2012 and 31.07.2012, he had not presented the bill which is a clear proof of abuse of the position to obtain illegal gratification and an omission to do the lawful act. Therefore, the judgments cited by the appellant which arise on difference context and different set of facts are not applicable to the current facts of the case.
31. This Court finds that, the trial Court had analysed the evidence placed before it in proper perspective and has held the accused guilty for offence under Section 7 and 13(2) r/w 13(1)(d) of P.C. Act. The Learned Counsel appearing for the appellant also submitted that, in any event the sentence imposed by the trial Court is excessive and taking into account of the age and health condition of the appellant, this Court modifies the sentence imposed by the trial Court as stated below:-
Accused Offences Conviction and Sentence Conviction and Sentence imposed by the trial Court modified by this Court Under Section 7 To undergo 5 years S.I and to To undergo 5 years S.I and of P.C Act, 1988. pay fine of Rs.6,000/-, in default to pay fine of Rs.6,000/-, in of payment of fine, to undergo default of payment of fine, to one year S.I. undergo one year S.I. Kumar Under Section To undergo 7 years S.I and to To undergo 5 years S.I and 13(2) r/w 13(1)(d) pay fine of Rs.6,000/-, in default to pay fine of Rs.6,000/-, in of P.C Act, 1988. of payment of fine, to undergo default of payment of fine, to one year S.I. undergo one year S.I. _____________ Page No.35/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017
32. As a result, the Criminal Appeal is partly allowed. The trial Court shall secure the accused person and commit him to prison to undergo remaining period of sentence. The period of sentence already undergo shall be set off under Section 428 of Cr.P.C. The period of sentence ordered to run concurrently. The bail bond executed, if any, shall stand cancelled.
09.06.2023
Index :Yes/No.
Internet :Yes/No.
Neutral Citation :Yes/No.
Speaking order/Non-speaking order
bsm
To,
1. The Chief Judicial Magistrate/Special Judge, Ariyalur
2. The Inspector of Police, Vigilance and Anti-Corruption, Trichy.
3. The Public Prosecutor, High Court, Madras.
_____________ Page No.36/37 https://www.mhc.tn.gov.in/judis Crl.A.No.798 of 2017 Dr.G.JAYACHANDRAN,J.
bsm Pre-delivery judgment made in Crl.A.No.798 of 2017 09.06.2023 _____________ Page No.37/37 https://www.mhc.tn.gov.in/judis