Madras High Court
Gnanasekaran vs State Rep By on 31 October, 2017
CRL.A(MD).Nos.448 and 477 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Delivered on : 19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.448 and 477 of 2017
Crl.A.(MD)No.448 of 2017:
Gnanasekaran ... Appellant/Accused No.1
Vs.
State rep by,
The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.
Cr.No.2 of 2013. ... Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374 of Cr.P.C. to call
for the records in Special Case No.1 of 2015 on the file of the learned
Special Judge for Vigilance and Anti-Corruption Cases, Madurai and set
aside the judgment dated 31.10.2017.
For Appellant : Mr.T.A.Ebenezer
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
CRL.A(MD).Nos.448 and 477 of 2017
Crl.A.(MD)No.477 of 2017:
Bojarajan ... Appellant/Accused No.2
Vs.
The State of Tamil Nadu represented by,
The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.
Cr.No.2 of 2013. ...Respondent/Complainant
Prayer : This Criminal Appeal is filed under Section 374(2) of Cr.P.C. to
allow this appeal and set aside the judgment of the learned Special Judge,
P.C Act Cases, Madurai, dated 31.10.2017 in Splecial Case No.1 of 2015.
For Appellant : Mr.R.Srinivas, learned Senior Counsel
for Mr.N.Dilip Kumar
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
COMMON JUDGMENT
Since these Criminal Appeals are arising out of the same occurrence, these two cases are taken up together for hearing and disposed of by way of this common Judgment.
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2. These appeals have been filed to set aside the following conviction and sentence imposed against the appellants by the learned Special Judge, P.C Act Cases, Madurai, in Special Case No.1 of 2015, by judgement dated 31.10.2017:
Accused Offences Punishable Sentence Imposed A1 i)U/s. 7 of Prevention of i) 3 years RI with fine of Corruption Act, 1988. Rs.3,000/- i/d 4 months RI.
ii)13(1)(d) r/w U/s.13(2) of ii) 3 years RI with fine of Prevention of Corruption Act, Rs.3,000/- i/d 4 months RI.
1988.
A2 i)U/s.12 of Prevention of i) 2 years RI with fine of Corruption Act, 1988. Rs.2,000/- i/d 4 months RI.
ii)U/s.13(2) r/w 13(1)(d) of ii) 2 years RI with fine of Prevention of Corruption Act, Rs.2,000/- i/d 4 months RI. 1988.
3. P.W.2 is third class contractor in Public Works Department. The appellant (A1) in Crl.A.(MD)No.448 of 2017, who was working as Assistant Executive Engineer, Building Construction and Maintenance Section-1, Public Works Department, Madurai North Sub Division, Madurai, demanded and accepted a sum of Rs.1,00,000/- to clear his final payment after completion of the construction work in the presence of the appellant (A2) in Crl.A.(MD).No.477 of 2017, who was the Assistant 3/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 Engineer. After the receipt of the said bribe amount, he handed over the same to the appellant in Crl.A.(MD).No.477 of 2017. Hence, the final report was filed against the both appellants for the following offences:
Accused Offences Punishable
A1 i)U/s. 7 of Prevention of Corruption Act, 1988.
ii)13(1)(d) r/w U/s.13(2) of Prevention of Corruption Act, 1988.
i)U/s. 12 of Prevention of Corruption Act, 1988. A2 ii)U/s.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
The learned trial Judge, after full-fledged trial, passed the above conviction and sentence by the impugned common judgment dated 31.10.2017 in C.C.No.1 of 2015. Challenging the same, the appellants filed these appeals before this Court.
4.Prosecution Case 4.1. P.W.2 is the III Class contractor. During the year 2012, he obtained a contract from the Public Works Department, Madurai, through 4/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 the tender for the construction of Veterinary Polyclinic at Thallakulam in Madurai and completed the same in the month of February 2013. Therefore, on 05.04.2013, he approached A1, namely, Gunasekaran Assistant Executive Engineer to clear the final bill and make the final payment of Rs.8,86,258/- legally due to him. At that time, A1 demanded 5% commission to the total value of the tender amount i.e., Rs.1,18,000/-. P.W.2 requested to reduce the amount. Hence, he reduced the amount from Rs.1,18,000/- to Rs.1,00,000/-. A1 directed P.W.2 to meet him with the said amount on 09.04.2013 and informed only then he would make the necessary arrangements for the final payment. Hence, P.W.2 gave a complaint to P.W.9/trap Laying Officer.
4.2. After verifying the allegations made in the complaint by conducting secret enquiry, P.W.9registered a case against A1 for the offence under Section 7 of the Prevention of Corruption Act. He then called P.W.3 and other officials to conduct the trap. After their arrival, they read the copy of FIR to P.W.2. P.W.2 affirmed the contents of the FIR. Thereafter, P.W.9 verified with P.W.2 whether he brought the said bribe amount. P.W.2 answered affirmatively and showed the bribe amount. Then P.W.9 demonstrated the phenolphthalein test upon receipt of the amount 5/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 from the defacto complainant/P.W.2. After demonstration, the Trap Laying Officer/P.W.9 smeared the phenolphthalein powder over the bribe amount of Rs.1,00,000/- and entrusted with P.W.2 with specific instruction to hand over the same to A1 upon his demand. He further directed to give the signal upon receipt of the said bribe amount. He also directed P.W.2 to watch the entire proceedings that would take place between P.W.2 and A1.
4.3. Thereafter, the Trap Laying Officer entered the above sequence of events in the entrustment mahazar with the particulars of the currency notes under Ex.P5 and the Trap Laying Officer and his team, along with P.W.2, P.W.3 and other official witnesses proceeded to the occurrence place namely, the Circuit House of the Public Works Department. Thereafter, the Trap Laying Officer stopped the vehicle at a distance and directed P.W.2 and P.W.3 to go to the Circuit House and directed to follow the instruction given earlier.
4.4. P.W.2 and P.W.3 entered into the Circuit House of the Public Works Department. P.W.2 made a call to A1. He directed P.W.2 to meet him at Dinning Hall of the Circuit House. He again made a call as to know the place of Dining Hall and he entered into Dining Hall along with P.W.3. 6/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 After that, according to the prosecution, A1 reiterated the demand of bribe amount for issuance of cheque for the balance of Rs.8,86,258/- in the presence of P.W.3. Therefore, P.W.2 handed over the money to A1 in the presence of A2. A1 received the bribe amount and in turn, handed over the same to A2.
4.5. Thereafter, P.W.2 came out of the Circuit House and gave a signal to the Trap Laying Officer. On receipt of the signal, the Trap Laying Officer entered into the Dinning Hall of Circuit House and P.W.2 identified A1 and A2 and disclosed the fact that A1 received the amount and handed over the same to A2. Thereafter, the Trap Laying Officer conducted phenolphthalein test in the hands of A1 and A2 and the same turned into pink colour and on enquiry, on disclosure by A1 the amount was seized from the pocket of A2. Consequently, he recovered the amount and verified the number of currency notes with the entrustment mahazar. Thereafter, the Trap Laying Officer, after giving another shirt conducted the test in the pocket of A2 and the said wash turned into pink colour. After completion of the above events, the Trap Laying Officer prepared the recovery mahazar and after preparation of recovery mahazar, he arrested A1 and A2. Thereafter, the search was conducted in the house and office of 7/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 A1 and A2. No incriminating materials were found and hence, alteration FIR along with recovery mahazar were sent to the Court. After that the Trap Laying Officer handed over the entire materials to the investigation officer/P.W.10.
4.6. P.W.10, the Investigation Officer after completing the investigation filed a final report before the learned Special Judge, P.C Act Cases, Madurai, under Sections 7 & 12 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, and the same was taken on file in Spl.C.C.No.1 of 2015. Thereafter, the learned trial Judge, framed the necessary charges and questioned the appellants and the appellants denied the charges and pleaded not guilty and they stood for trial.
5. To prove the case, the prosecution adduced evidence through P.W. 1 to P.W.10 and exhibited 36 documents as Ex.P.1 to Ex.P.24 and marked 7 material objects as M.O.1 and M.O.7. Thereafter, the accused were questioned under Section 313 Cr.P.C proceedings putting the incriminating evidence against them and they denied the same as false and thereafter, the case was posted for defence evidence. On the side of the accused, no one was examined but 5 documents were marked on the side of A1 as Ex.R.1 8/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 to Ex.R.5. No document was marked on behalf of A2.
6. The learned trial Judge after considering the above evidence adduced on the side of the prosecution and the documents produced on the side of the accused, convicted the appellants and sentenced them as stated above by passing the impugned judgment on 31.10.2017, in C.C.No.1 of 2015 on the file of the learned Special Judge for Prevention of Corruption Act Cases, Madurai.
7. Aggrieved over the same, A1 filed Crl.A(MD)No.448 of 2017 and A2 filed Crl.A(MD)No.477 of 2017 before this Court.
8.Submission of the learned Senior Counsel appearing for A2 in Crl.A.(MD).No.477 of 2017:
8.1. Mr.R.Srinivas, the learned Senior Counsel appearing for the appellant/A2 in Crl.A.(MD)No.477 of 2017 for Mr.N.Dilip Kumar, submitted that insofar as A2 is concerned, there was no demand. From the stage of complaint to the stage of the recovery, the role of A2 is not at all whispered. Only at the stage of recovery, A2's name figures that he received the amount from A1. That too, not directly from the complainant. 9/55
https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 8.2. The learned Senior Counsel appearing for A2 further submitted that he was not aware about transaction between A1 and P.W.2 and what transpired between A1 and P.W.2. Hence, A2 was not aware of nature of the money and the manner of the transaction. A2 just received the money as per the direction of his superior (A1) and even before he could make enquiry with A1, the Vigilance Team entered and seized the amount after conducting Phenolphthalein Test. All the evidence make it clear that there was no demand by A2. Even in the complaint, the defacto complainant did not make any allegation that A2 made a demand for settling the final bill. Even the prosecution documents only stated that he only took the measurement and made entry in the relevant bill. The same does not amount to the participation in the act of demand and acceptance of the bribe as alleged by the prosecution. It is settled law that mere receiving of money is not a ground to record conviction under the Prevention of Corruption Act.
8.3. The learned Senior Counsel for A2 further submitted that from the sequence of the events of the evidence narrated by P.W.3 and P.W.4, there is no material circumstance to infer knowledge on the part of A2 at the time of handing over of the money by A1 that is was bribe money. 10/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 8.4. The learned Senior Counsel for A2 further submitted that as per Section 12 of the Act, the prosecution must prove the abetment on behalf of the appellant. The learned Senior Counsel placed reliance a following judgment of the Hon'ble Supreme Court in Somasundaram Alias Somu v. State Represented by the Deputy Commissioner of Police reported in 2020 7 SCC 722, and would submit that the prosecution in this case failed to prove the abetment as stated by the Hon'ble Supreme Court in the said judgment. Hence, he seeks for acquittal.
8.5. The learned Senior Counsel for A2 further submitted that there is no evidence to prove that A2 instigated A1 to get bribe. There is no evidence to prove conspiracy with A1 to obtain illegal gratification.
8.6. The learned Senior Counsel for A2 further submitted that there is no evidence to prove that A2 intentionally aided A1 to get the bribe amount from the defacto complainant. In the absence of the above circumstance, the prosecution failed to prove the case beyond doubt except the fact that A2 received money from A1 without knowing the character of the amount.
11/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 8.7. The learned Senior Counsel for A2 further submitted that even as per the evidence, it is only stated that A2 was present nearby and hence, there was no evidence even to prove the transaction between P.W.2 and A1. There was no evidence to prove that A2 heard the dialogue between P.W.2 and A1.
8.8. The learned Senior Counsel for A2 further submitted that the presence of the shadow witness itself is doubtful. Since they made contradictory particulars regarding the trap proceedings. More particularly, regarding the recovery proceedings. Hence, without any evidence, the learned trial Judge convicted the appellant.
8.9. The learned Senior Counsel for A2 further submitted that P.W.2 in the complaint stated that A1 demanded money for processing the final settlement. In the chief examination, he stated that the amount is meant to repay the debt incurred by P.W.2 to one Thirumaran.
8.10. In this regard, the learned Senior Counsel placed reliance on the following judgments :-
N. Vijayakumar v. State of Tamil Nadu reported in (2021) 3 SCC 12/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 687 B.Vasudevan Vs. State represented by the Inspector of Police reported in 2022 SCC online Mad 649 M. Abbas v. State of Kerala reported in 2001 10 SCC 103 Digamber Vaishnav v. State of Chhattisgarh reported in 2019 4 SCC 522.
8.11. The learned Senior Counsel for A2 further submitted that in view of his specific answer during 313 Cr.P.C., questioning, that A2 did not demand and receive any bribe amount from P.W.2. the learned trial Judge ought not to have convicted A2 without any other evidence.
8.12. The learned Senior Counsel for A2 further submitted that Section 7 of the Act requires to prove the participation or assistance in the case of receipt of bribe amount by A1. In this case, even according to the prosecution case, A2 received money only from the hands of A1 as a victim of circumstance. Since, A1 is a superior officer of A2, he received the same without knowing it is the bribe amount. Hence, he seeks for acquittal of A2.
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9.Submission of the learned counsel appearing for the appellant/A1 in Crl.A.(MD).No.448 of 2017:
9.1. The learned counsel appearing for A1 submitted that the evidence of P.W.2 attracts more value in this case, since he made different versions in the different situations namely, the complaint, the chief examination and the cross examination. Therefore, the evidence of P.W.2 is not acceptable.
9.2. The learned counsel appearing for A1 further submitted that the amount received is not a illegal gratification. It is only meant to be handed over to one Thirumaran for his daughter's marriage. Therefore, the amount can not be treated as illegal gratification. He also explained the same during 313 Cr.P.C., questioning also. The same was supported by the version of the complainant/P.W.2. P.W.2 clearly stated that he handed over the money to A1 to entrust the same with one Thirumaran. Hence, in all aspects, the prosecution has not established the case against A1.
9.3. The learned counsel for A1 placed reliance on paragraph Nos.9 and 10 of the judgment reported in Ramakrishnan Vs. State represented by the Inspector of Police, D & VAC, Chennai reported in (2007) 1 MLJ 14/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 (Crl) 430 and submitted that mere receipt of amount without any demand is not a illegal gratification. Hence, the conviction passed by the learned trial Judge is not in accordance with law.
9.4. The learned Senior Counsel further submitted that A1 has no role in processing of preparation and final settlement and hence, he seeks for acquittal of A1.
10.Submission of the learned Additional Public Prosecutor:
10.1. The learned Additional Public Prosecutor appearing for the State submitted that insofar as A1 is concerned, the prosecution proved the demand as well as the acceptance. The explanation through the evidence of P.W.2 that he handed over the money to transmit the same to one Thirumaran is also an after thought defence and to prove the same, the said Thirumaran was not examined. Hence, the defence of the learned counsel for the appellants could not be accepted.
10.2. The learned Additional Public Prosecutor appearing for the State further submitted that even if P.W.2 turned hostile, the evidence of P.W.2, in chief examination, clearly established the case of the prosecution. 15/55
https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 10.3. The learned Additional Public Prosecutor appearing for the State further submitted that as per Section 154(2) of the Evidence Act, the portion of the evidence in favour of the prosecution can be accepted. Therefore, on the basis of the evidence, the prosecution proved the case through the version of P.W.2.
10.4. The learned Additional Public Prosecutor appearing for the State further submitted that apart from P.W.2's evidence, P.W.3, the shadow witness clearly deposed about the demand by A1, and that the bribe amount of Rs.1,00,000/- was handed over to him for issuance of the cheque. The said evidence of official witness has to be accepted and no other reason is there to disbelieve the evidence of P.W.3 and the portion of the evidence of P.W.2. In all aspects, the prosecution proved the case beyond all reasonable doubt.
10.5. The learned Additional Public Prosecutor appearing for the State further submitted that the case of A2 that the prosecution is bound to prove the demand and acceptance is not applicable to A2 since he was charged under Section 12 of the Act. To prove the charge under Section 12 of the Act, the prosecution adduced abundant evidence to constitute the 16/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 offence under Section 12 of the Act.
10.6. The learned Additional Public Prosecutor appearing for the State further submitted that his participation in the bill preparation and his presence at the scene of occurrence while receiving the amount clearly established the fact that he has knowledge about the nature of the amount. Hence, his role comes under Section 12 of the Act. Receiving of the amount from A1 itself is a circumstance to prove the case of the prosecution to constitute the offence under Section 12 of the Act. Therefore, the reliance placed by the learned counsel for the appellant on the basis of number of judgments of the Hon'ble Apex Court regarding the demand are not applicable to the present facts of the case.
10.7. The learned Additional Public Prosecutor appearing for the State further submitted that insofar as the precedent regarding the abetment is concerned, the circumstances were clearly proved by the prosecution for the offence under Section 12 of the Act. Therefore, the said judgment relied by the learned counsel for the appellant is not applicable to the present case.
17/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 10.8. The learned Additional Public Prosecutor appearing for the State further submitted that from the available evidence, the prosecution clearly proved the case against A1 for the offence under Section 7 and 13(1)(d) r/w U/s.13(2) of Prevention of Corruption Act, 1988. A2 is concerned, the prosecution established the case beyond reasonable doubt under Section 12 of the of Prevention of Corruption Act, 1988.
10.9. The learned Additional Public Prosecutor appearing for the State further submitted that considering the corruption which corrode the entire society, the punishment imposed on the appellants deserves to be maintained without any reduction. Hence, he seeks for dismissal of both the appeals.
11.Discussion on merits:
This Court considered the rival submission made on behalf of the appellants and the learned Additional Public Prosecutor and perused the records submitted by both the parties and also considered the precedents relied upon by all the parties.
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12.Now the question is whether the prosecution proved the case beyond reasonable doubt to convict the appellant in Crl.A.(MD).No.448 of 2017 for the offence under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
12.1.Whether the prosecution proved the case beyond reasonable doubt to convict the appellant in Crl.A.(MD).No.477 of 2017 for the offence under Sections 12 and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
13. It is the admitted case that P.W.2 is a registered contractor under A1 and A2 department. He is a successful bidder in the tender called for the construction of a Veterinary Polyclinic at Thallakulam in Madurai, during the year 2012.
14. The tender amount is Rs.23,65,509/-. P.W.2 initially received three payments before completion of work. After completion of work, the department is liable to pay balance of Rs.8,86,258/-. For the release of the said amount, he approached A1, who is the Assistant Executive Engineer. On 05.04.2013, he made a demand of 5% of the total work cost as bribe 19/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 amount. P.W.2 explained the reason that there was no profit in the said work and requested A1 to reduce the amount. Hence, A1 reduced the amount from Rs.1,18,000/- to Rs.1,00,000/-. He asked to hand over the money on 09.04.2013. Therefore, P.W.2 gave a complaint to the Trap Laying Officer and the Trap Laying Officer arranged the trap. As per the trap, P.W.2 is to hand over Rs.1,00,000/- on the demand made by A1 in the presence of P.W.3. A1 after receipt of amount, handed over the same to A2, who was with A1 in the Circuit House. From the above sequence of events, it is clear that the prosecution proved that A1 demanded the amount and reiterated the said demand in the presence of P.W.3 and received the said amount as illegal gratification and subsequently handed over the same to A2.
15. Apart from the above aspects, the document adduced by the prosecution also clearly proved that A1 has control over the disbursement of final amount of Rs.8,86,258/-. Hence, the case of demand and acceptance made on the part of A1 has been clearly proved by the prosecution through the evidence of P.W.2 and P.W.3. Even though P.W.2 turned hostile, P.W.2 categorically stated that he went to the Vigilance Office and made a complaint (Ex.P.2). He also admitted the signature in 20/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 the complaint. He further affirmed that he is a signatory in the entrustment mahazar. Even though, he was declared as hostile witness, he admitted the prosecution version that the demand was made by A1 and he handed over the said amount upon reiteration of demand made by A1 in the presence of P.W.3. P.W.3 also clearly stated that A1 reiterated the demand, P.W.2 handed over the amount to him for the process of issuance of the cheque. Hence, the prosecution clearly proved the demand and acceptance on the part of A1.
16. The reliance placed by the learned counsel for A1 is not applicable to the present facts of the case and also number of circumstances emanated from the document filed by the prosecution agency prove the guilt of the offence under Sections 7 and 13(1)(d) r/w U/s.13(2) of Prevention of Corruption Act, 1988.
17.Proof of demand This Court now decides to deal with the demand against A1 for the offence under Section 7 r/w 13(2) of the PC Act, and demand against A2 for the offence under Section 12 of the PC Act separately. 21/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017
18.Discussion about the demand for the offence under Section 12 of the PC Act:
18.1. The requirement of proof of demand to convict the accused No.2/appellant in C.A.(MD).No.477 of 2017 under Section 12 of the Prevention of Corruption Act, 1988 is not necessary. In the considerable opinion of this Court, the said requirement is meant for Sections 7 and 13(1)(d) r/w U/s.13(2) of Prevention of Corruption Act, 1988, which is not applicable to Section 12 of the Act. Section 12 of the Act reads as follows:-
“12. Punishment for abetment of offences.—Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.” It is well settled law, in interpreting the provision of the Prevention of Corruption Act, 1988, the interpretation which has advanced the object of the Act is to be considered. The Hon'ble Constitution Bench of Supreme Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 :
“18.Re. (a): The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such 22/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the vent of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it.”
19. As per Section 12 of the Act, there is no legal mandate to prove the demand as against A2. It is well settled, unless, there is an express requirement to prove the demand as against A2, the Court has no 23/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 jurisdiction to say that the demand has to be proved before convicting the appellant under Section 12 of the Prevention of Corruption Act, 1988. In this aspect, it is relevant to note the principle laid down by the Hon'ble Constitution Bench of the Supreme Court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500
18. It is a well-established canon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience, nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose.
Therefore, the argument of the learned Senior Counsel that before recording conviction under Section 12 of the Prevention of Corruption Act, 1988, the prosecution has to prove the demand is not acceptable. It amounts to rewriting the Section. The ingredients to prove the offence under Section 13(1)(d) r/w 13(2) of the Act and Section 7 of the Act is different from Section 12 of the Act.
19.1. The Hon'ble Supreme Court in the case of State through CBI Vs. Parameswaran Subramani and another reported in 2009 9 SCC 729 has held that offence under Section 12 of P.C.Act, is distinct offence and 24/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 in clear and categorical terms, reads that who ever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term as provided thereunder. Further it is also held that the abetment under Section 12 of the Act is clearly made out against A2 on his failure to explain the colour change in his hand and the amount recovered from his paint pocket and without any explanation on the part of A2 in questioning under Section 313 Cr.P.C., as to why A2 received the amount from A1 is another material circumstance to convict A2 under Section 12 of the Act. The relevant portion of the judgment is as follows:
Subbu Singh v. State, reported in (2009) 6 SCC 462 “20. So far as the stand that money was kept for the purpose of falsely implicating A-1, the same is without substance. The accused was a police officer who knew the consequences of the bribe. He had not explained as to why he took up the money in his examination under Section 313 of the Code. The accused stated that PW 2 took the money because the Inspector asked him to do so. The normal conduct would have been to take action against PW 2 for offering bribe. Additionally, if the matter was closed there was no need for going to 25/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 the field.” By applying the said ratio, to prove Section 12 of the Act, it is enough to bring the circumstances to show that the appellant received the amount with the knowledge that it is bribe amount. By applying the above principles, to prove Section 12 of the Act, it is enough to bring the circumstances to show that the appellant received the amount with the knowledge that it is bribe amount. In this case, P.W.2 deposed that A1 received the amount and handed over to A2 after making the detailed conversation relating to the issuance of cheque in the following words:
mg;nghJ "hdnrfud; m';fpUe;jhh;/
mthplk; ehd; vdf;F tuntz;oa gpy;
vd;d MdJ vd;W nfl;nld;/ mjw;F
"hdnrfud; fz;fhzpg;g[ bghwpahsh;
brhd;dgo me;j nkl;liu Koj;Jtpl;L
fhnrhiyia fz;fhzpg;g[ bghwpahshplk;
th';fpf; bfhs;S';fs; vd;W brhd;dhh;/
ehd; gzk; bfhz;l te;jpUf;fpnwd;
vd;W brhy;yp. VdJ tyJ ngz;l;
ghf;bfl;oypUe;j gpdhg;jypd; gt[lh;
jltg;gl;l gzj;ij vLj;Jf;
bfhLj;njd;/ "hdnrfud; me;j
gzj;ij jd;Dila tyJ ifahy;
th';fp. Cjtpg;bghwpahsh; ngh$uh$d;
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mth;fsplk; bfhLj;jhh;/ ngh$uh$d;
jdJ ,lJ ifahy; th';fp ,uz;L
iffshYk; vz;zpg; ghh;j;Jtpl;L ngh
$uh$d; mutJ ,lJ gf;f ngz;l;
ghf;bfl;oy; itj;Jf; bfhz;lhh;/ mjd;
gpd;dh; "hdnrfud; mth;fsplk; brf;
th';fpf; bfhs;sth vd;W nfl;nld;/ gpy;
fz;fhzpg;g[ bghwpahshplk; cs;sJ. brf;
,d;Dk; nghltpy;iy vd;W brhd;dhh;/
me;j g[nuhf;fpuhk; Koe;j gpd;dh;
mYtyfj;jpw;F md;W khiyapnyh
my;yJ kWehnsh te;J brf;if
th';fpf; bfhs;Sk;go brhd;dhh;/
Further, P.W.3 also deposed that the accused No.1 received the bribe amount and after having some conversation with P.W.2 and then handed the amount to second accused.
M$h; vjphpfs; ,Utiua[k; rhl;rp milahsk;
fhl;odhh;/ thjp khh;ehL M$h; vjphp "hdnrfud;
mth;fsplk; vd;d rhh; tur; brhd;dPh;fns vd;Dila brf; buoahf ,Uf;fpwjh vd;W nfl;lhh;/ mjw;F vjphp "hdnrfud; eP';fs; gzk; bfhz;L te;jpUf;fpwPh;fsh vd;W nfl;lhh;/ mjw;F thjp gzj;ij bfhz;L te;jpUf;fpnwd; vd;W brhy;yp jd;Dila ngz;l; ghf;bfl;od; tyJ g[w ghf;bfl;oy; itj;jpUe;j gpdhg;jypd; gt[lh; jltg;gl;l gzk;
U:/1.00.000?I vLj;Jf; bfhLj;jhh;/ me;j gzj;ij vjphp
"hdnrfud; jd;Dila tyJ ifahy; th';fp mjid
mUfpy; ,Ue;j vjphp ngh$uh$d; mth;fsplk; bfhLj;jhh;/
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mjid ngh$uh$d; jdJ ,lJ ifahy; th';fp jd;Dila ,lJ gf;f ngz;l; ghf;bfl;oy; itj;Jf; bfhz;lhh;/ From the above, the prosecution clearly proved the receipt of the bribe amount by A2 with required intention and knowledge as per Section 12 of the Act. Immediately P.W.2 gave a signal to P.W.9/Trap Laying Officer (TLO) and P.W.9 conducted Phenolphthalein test in the hands of A2 and the paint pocket of A2, the same turned positive.
19.2.The Rule 46 of manual of the Directorate of Vigilance and Anti-Corruption, Tamil Nadu clearly prescribed the procedure to conduct the phenolphthalein test which reads as follows:-
“46. Phenolphthalein Test (1) Before recovering the tainted money or other articles in the course of trap proceedings, what is known as "Phenolphthalein Test" should invariably be conducted the fingers of both hands of the Accused Officer and on other items such as his pant/shirt pocket, dhoti, etc., with which the notes/articles are known to have come into contact. It will be a corroborative piece of evidence to establish the acceptance of tainted money by the Accused Officer.
(2) ...28/55
https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 19.3. As per the procedure contemplated under the manual of the vigilance department, after the receipt of the signal from the defacto complainant, the Trap Laying Officer is to ascertain the passing of the bribe amount from the defacto complainant to the accused officer, and he is duty bound to conduct phenolphthalein test. The object of the test is to know whether the accused obtained the tainted money. Subsequently, the Trap Laying Officer is to prepare the sodium carbonate solution and dip the hands of the accused officer and find the change of colour. If there was colour change, prima facie as per Rule 46 of the manual, the accused not only obtained the tainted currency and also it is corroborative piece of evidence that the accused accepted the bribe amount. A2 has not denied the receipt of the amount and there was no explanation for the change of colour and also recovery of the tainted currency. When the evidence of P.W.1, P.W.2, P.W.11 are cogent and trustworthy, this Court has no other option except to hold that A2 accepted the amount with knowledge that amount was bribe amount. In this aspect, it is relevant to note that the Hon'ble Supreme Court in the case of A.S.Krishnan and others Vs. State of Kerala, reported in 2004 11 SCC 576 has held that the knowledge is an awareness on the part of the person concerned indicating his state of mind.
29/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017
20. After, receiving of bribe amount from the hands of A1 the subsequent screening of the said amount also matters. The argument of the learned counsel for A2 that as per the direction of the Superior (A1), he received the amount of Rs.1,00,000/-. It is to be noted that A2 received the said amount without raising any demur and not even raising any query regarding the character of the amount. Therefore, the prosecution has proved the “constructive receipt” in order to sustain the conviction against A2 and the same has been fortified by the Hon'ble Supreme Court in the following judgments:
In the case of D. Velayutham v. State, reported in (2015) 12 SCC 348:-
“15. Though this Court has stressed the need and significance of phenolphthalein as a trap device in corruption cases, so as to allay doubts about the actual receiving of bribes by accused persons, there may be cases where there are multiple demanders in a common or conjoint bribe demand, and for whatsoever reason, only one receives the sum on their behalf, and is entrapped in consequence. Depending on strength of the remainder of evidence, in these cases, constructive receipt by co-accused persons is open to establishment by the prosecution, in order that those who intermediately obtain bribes be latched with equal 30/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 culpability as their co-accused and entrapped receivers. This will, of course, discount those cases where the trap is successful only against one and not the other official, the latter having refused to accept the bribe tendered. In this case, the trap would have clearly failed against such an official, and there could be no question of the application of constructive receipt. If the receipt and handling of bribe money by Accused 2 so convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of his superior officer, namely Accused 1, then Accused 1 cannot rely on mere non- handling/non-receipt of the bribe money, as his path to exculpation. This Court's construal of anti- corruption cases is sensitive even to these byzantine methods of bribe-taking, and where an evader escapes a trap, constructive receipt has to be an alternate means of fastening criminal culpability.
Emphasis supplied 20.1.Further in the case of Billa Nagul Sharief v. State of A.P., reported in (2010) 11 SCC 575 “19. The contention that grievance can be remedied by the superior officer in the hierarchy of the system of the department concerned, if accepted, 31/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 perhaps there shall be no case in which the demand for bribe can be made. The feeling of a common man that when the work is enshrined to different persons bribe is demanded by one of them, when all are invariably in collusion, cannot be lost sight of. If senior officers ensure that the works of the citizens are done without payment of bribe, junior officers and employees may abandon the demand and this country would not have prominently figured as one of the most corrupt nations of the world, as it is widely accepted that the corruption flows from the top. Here the de facto complainant was entitled to have the composite licence but he was not willing to pay the bribe demanded, accordingly he had approached the Anti-Corruption Bureau and we do not find anything unnatural in the conduct of the de facto complainant.”
21.Proof of the demand on the part of A1 The repeated contention of the appellant is that P.W.2 was declared hostile and hence, the demand is not proved. Even in the case of the complainant declared as hostile, the demand can be proved through the other proved circumstances, namely, from the inferential deduction of the complainant's evidence, from the testimony of the other witnesses and the 32/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 circumstantial evidence and the same is fortified by the following portion of the Hon'ble Constitution Bench Judgment in the case of Neeraj Dutta v.
State (NCT of Delhi), (2023) 4 SCC 731 at page 777 a88.6.(f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of
the complainant (direct/primary, oral/documentary
evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
87. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must 33/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.” Sat Paul v. Delhi Admn., (1976) 1 SCC 727 at page 745 “52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the 34/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.” 21.1.From conjoint reading of the paragraph No.52 of the “sat paul” case and Paragraph No.87 of the “Neeraj Dutta” case, the following principles are to be followed to appreciate the prosecution witnesses examined and contradicted by the prosecution under Section 154 of the Indian Evidence Act, with the leave of Court:
(i)To read the evidence of witnesses as a whole with due caution and care and circumspection.
(ii)If the credit of the witness has not been completely shaken, the portion of the deposition to be considered along with other available evidence.
(iii)The credit of the witness is subjected to any receipt of other corrupt inducement to give his evidence as stated in the Section 155 (2) of 35/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 the Indian Evidence Act and his evidence can not be taken against the prosecution. There are cases where the witness admitted his signature in the complaint and disowned the contents of the complaint or admitted the contents and signature of the complaint but taken a stand that he made it under the influence. The Court has to consider the complaint in consonance with the other prosecution evidence.
(iv)If the witness deposed in chief examination admitting the entire transaction and disowned during the course of cross examination, the deposition made in the chief examination to be taken.
(v)If the witness deposed in the chief examination partly disowning his case stated in the complaint, the Court is duty bound to see his credit worthiness by subjecting his deposition with relevant circumstances whether he has been subjected to any corrupt inducement to give false evidence. In that event, his evidence cannot be taken against the prosecution.
22.It is well settled principle that the conviction can be made on the basis of the evidence of trap witness. The Hon'ble Constitution Bench of the Supreme Court in AIR 1958 SC 500 in the case of State of Bihar Vs. Basavan Singh has held that a court may convict the accused under 36/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 Section 7 and 13(1)(d) of the Prevention of Corruption Act 1988, by interpreting the corresponding provision of the old Act on the basis of the trap witness evidence without any corroboration if the court is satisfied from the facts and circumstances of the case that the witness is a witness of truth and the same was subsequently followed by the three judge bench of the Hon'ble Supreme Court reported in AIR 1968 SC 1323 22.1.The ratio of Hon'ble Constitution Bench of the Supreme Court in the case State of Bihar v. Basawan Singh, reported in 1958 SCC OnLine SC 64 is as follows:
“10. .....It is wrong, however, to deduce from that decision any universal or inflexible Rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.
The ratio of the Hon'ble Three Judges Bench of the Supreme Court in Bhanuprasad Hariprasad Dave v. State of Gujarat, AIR 1968 SC 1323 as follows:
“7.... It cannot be said — and it was not said — that they were accomplices. Therefore, the law does not require that their evidence should be corroborated 37/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 before being accepted as sufficient to found a conviction.
..... It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration. In the instant case, the trial court and the High Court have fully accepted the evidence of Ramanlal, the DySP, Erulker and Santramji. That being so, it was open to them to convict the appellants solely on the basis of their evidence. That apart, their evidence is substantially corroborated by the evidence of Dahyabhai, Sanghvi and Sendhalal. In the case of partisan witnesses, the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices.” The ratio laid down by the Hon'ble Supreme Court in Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90 at page 93 as follows:
“6. ... Where the circumstances justify it, a court may refuse to act upon the uncorroborated testimony of 38/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 a trap witness. On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
22.2. In this case, the demand was proved through the tell-tale circumstances. The Hon'ble Supreme Court in the case of Kishan Chand Mangal v. State of Rajasthan, (1982) 3 SCC 466 at page 471 also discussed the similar issue in the following terms:
“11. It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the court to spell out the demand from the contents of Ex. P-12. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is equally true that the FIR lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an FIR would not be covered by any of the clauses of Sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence. If appellant did not visit the factory of Rajendra Dutt on November 20, 39/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy SP, ACD on November 22, 1974; his producing currency notes worth Rs 150; a superior officer like the Dy SP, ACD, making all arrangements for the trap and the raiding party going to the house of the accused on November 22, 1974. The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted. Coupled with this, the fact that Keshar Mal, PW 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on entering the room asked the appellant, ‘Hullo, how do you do?’ He further stated that the appellant replied, ‘I am sick and suffering from cold’.
He deposed that thereafter the appellant asked, ‘Have you brought the money’, whereupon complainant Rajendra Dutt replied, ‘Yes, I have brought the money’. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by PW 2 Keshar Mal. But Mr Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it 40/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as hereinbefore set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974.” By applying the above principle, in this case, P.W.2 took a stand that he handed over the amount due to Thirumaran and he met Thirumaran on 05.04.2013. He asked to hand over the money to A1. A1 received the amount and handed over to A2. The said plea of P.W.2 is false and stage managed one. The said Thirumaran was not working in the office of A1 on 05.04.2013. He was already transferred to another office on 18.11.2012. Further, he is no way connected with either P.W2 or A1. Thirumaran was also not examined. In the said circumstances, there is a clear evidence of P.W.3 that A1 reiterated the demand. Apart from that the bill was never 41/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 processed till the date of the trap and the same was within the control of A1. Hence, the evidence of P.W.1 is false and the prosecution proved the demand through the evidence of P.W.3 and through the tell-tale circumstances such as P.W.2, admitted that he preferred the complaint before the Vigilance Office and he handed over the bribe amount in the presence of the official witness and trap was conducted and money was handed over and he gave the signal and the amount was recovered. Hence, considering the overall circumstances of the case of prosecution, the prosecution clearly proved the case against the appellants and hence this Court finds no reason to interfere with the conviction and sentence passed by the Court below.
23.Therefore, the said conduct on the part of A2 coupled with the active role in the preparation of bills clearly demonstrated that he aided A1 attracting Section 107 of IPC.
24.The other circumstance is that according to P.W.3, A2 was present along with A1. It is the specific evidence of P.W.3 that A1 reiterated the demand for issuance of cheque and hence, from the said sequence of events, this Court can easily presume that the appellant has 42/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 knowledge about the character of the money. Hence, this Court comes to the conclusion that the said ingredients of Section 12 of the Act, are made out from the records.
25. The argument of the learned Senior Counsel for A2 that the above two circumstances, are not enough to prove the offence under Section 12 of the Act, on the basis of the Hon'ble Supreme Court Judgment in Somasundaram Alias Somu v. State Represented by the Deputy Commissioner of Police reported in 2020 7 SCC 722, is not correct. Right from the beginning, A1 and A2 are the officers/in-charge of bills of P.W.2. The measurement was completed by A2 and the next stage is the disbursement of amount. The amount received by A1 was handed over to A2 which clearly proved that A2 also is a party to the receipt of the bribe amount. Section 107 IPC clearly defines that even conspiracy is abetment.
26. From the above case, it is easily presumed that there is conspiracy between A1 and A2 to receive the bribe amount from the defacto complainant. Hence, the judgments relied by the learned counsel for the appellants are not applicable to the present facts of the case where all the judgments are relating to the offence under Sections 7 and 13(1)(d) 43/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 r/w U/s.13(2) of Prevention of Corruption Act, 1988.
27. Sanction 27.1.The learned counsel for the appellant has stated that the sanctioning authority has not applied his mind and granted sanction in mechanical manner. According to the learned counsel for the appellant, sanction is a sacrosanct act and the sanctioning authority is duty-bound to apply his mind independently and grant the sanction and he seeks for acquittal.
27.2.Before Further elaboration on submission of Appellant regarding non application mind while according sanction, this Court has a duty to find out the meaning of “sanction” and precedents relating to the accord of sanction. The word ‘sanction’ has not been defined in the Code of Criminal Procedure.
Dictionary Meaning Webster's Third New Internal Explicit permission or recognition by Dictionary one in authority that gives validity to the act of another person or body;
something that authorizes, confirms, or countenances.
The New Lexicon Webster's Explicit permission given by some one Dictionary in authority.
44/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 The Concise Oxford Encouragement given to an action etc., Dictionary. by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Stroud's Judicial Dictionary Sanction not only means prior approval; generally it also means ratification.
Words and Phrases— The verb ‘sanction’ has a distinct shade of meaning from ‘authorize’ and means to assent, concur, confirm or ratify. The word conveys the idea of sacredness or of authority.
The Law Lexicon by Prior approval or ratification. Ramanath Iyer Rameshwar Bhartia Vs. State Sanction is in the nature of permission. of Assam reported in 1952 2 SCC 203, the Hon'ble Supreme Court has stated that 27.3.In Om Prakash v. State of U.P., 2001 SCC OnLine All 818 at page 1248. Hon'ble Mr.Justice G.P.Mathur (as he then was ) made detailed discussion on this aspect and finally has held that
6..... The word ‘sanction’ has been used as a “verb” and therefore it will mean to assent, to concur or approval. 27.4. Therefore, in the considerable opinion of this Court, sanction is the independent act of sanctioning authority with due application of mind over the material forwarded by the investigating agency to prosecute 45/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 the accused before the Court of law under the penal provision constituting the offence.
27.5.The Hon'ble Supreme Court in State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119 after considering the earlier various decisions of the Hon'ble Supreme Court reported in AIR 1958 SC 124, AIR 1979 SC 677, 1995 6 SCC 225, 2005 4 SCC 81, 2006 12 SCC 749, 2007 11 SCC 273, 2011 1 SCC 491, has expounded the following detailed principles of law governing the validity of sanction:
“14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima 46/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.” 27.6. In this case P.W.10, after collecting the material documents and recording the statements of the witnesses recorded under Section 161 of Cr.P.C, produced the same before P.W.1 to accord sanction. P.W.1 after considering and applying his mind granted sanction under Ex.P1. The material portion of the sanction order as follows:
AND WHEREAS, the Government of Tamil Nadu, being the authority competent to remove the said Thiru P.Gnanasekaran, Assistant Executive Engineer (under suspension), and Thiru C.Bojarajan, Assistant 47/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 Engineer (under suspension), Public Works Department, from service, after carefully and fully examining the materials as well as copy of First Information Report, statements of witnesses and the statements of Thiru P.Gnanasekaran and Thiru C.Bojarajan, along with the other records and also the report of the Director, Vigilance and Anti-Corruption, Chennai, placed before it in regard to the allegations and in circumstances of the case, is satisfied that the above said officials should be prosecuted for the above said offences before a court of law;
27.7.The sanctioning authority examined as P.W.1 and he also deposed before the Court that he accorded sanction under Ex.P1 after applying his mind in the following words:
mjd; gpd;dh; ehd; miHj;jjd; nghpy;
kJiu khtl;l C/j/f/ gphpt[ Jizf;
fz;fhzpg;ghsh; mth;fSk; fhty; Ma;thsh;
mth;fSk; vd;Dila mYtyfj;jpy; M$uhfp
nkw;brhd;d ,e;j tHf;fpy; rk;ge;jg;gl;l
Mtz';fs; kw;Wk; urhaz ghpnrhjid
mwpf;if kw;Wk; rk;ge;jg;gl;l Mtz';fs;
ml';fpa nfhg;ig rkh;g;gpj;jhh;/ nkw;fz;l
Mtz';fis ed;whf ghprPyid bra;j rl;l
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tpjpfspd;go rh;Fnyrd; nehl; mDg;gp
murplkpUe;J xg;g[jy; bgw;W. vd; kdij
brYj;jp vjphpfs; kPJ Fw;w tHf;F bjhlu
Kfhe;jpuk; ,Ue;j fhuzj;jhy; ,irthiz
bfhLj;njd;/ muR Mizahf gpwg;gpj;njd;/
27.8.From the above, this Court finds that the sanction order itself is eloquent about the fact that the accused had demanded and accepted the bribe amount. The sanctioning authority also came into the witness box and he deposed that he accorded sanction for prosecution after proper application of mind. Therefore, this Court finds that the sanctioning authority has applied his mind to the fact that the appellants made a demand and accepted illegal gratification.
29. Further, Section 19 of the Prevention of Corruption Act 1988 and Section 465 of Cr.P.C., specifically state that the conviction cannot be set aside on the ground that there was an error in granting sanction unless accused established failure of justice. For better appreciation, the relevant portion of the Sections are extracted as follows:49/55
https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 Section 19 of the Under Section 465 of Cr.P.C. Prevention of Corruption act 1988 19.3...(3) Notwithstanding 465. Finding or sentence when reversible by anything contained in the Code reason of error, omission or irregularity.—(1) of Criminal Procedure, 1973 (2 Subject to the provisions hereinbefore contained, of 1974),— no finding, sentence or order passed by a court of
(a) no finding, sentence or order competent jurisdiction shall be reversed or altered passed by a Special Judge shall by a court of appeal, confirmation or revision on be reversed or altered by a court account of any error, omission or irregularity in in appeal, confirmation or the complaint, summons, warrant, proclamation, revision on the ground of the order, judgment or other proceedings before or absence of, or any error, during trial or in any inquiry or other proceedings omission or irregularity in, the under this Code, or any error, or irregularity in sanction required under sub- any sanction for the prosecution, unless in the section (1), unless in the opinion opinion of that court, a failure of justice has in of that court, a failure of justice fact been occasioned thereby.
has in fact been occasioned thereby;
29.1.The Hon'ble Supreme Court has held as follows in State v. T. Venkatesh Murthy, (2004) 7 SCC 763 at page 765,
14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding “failure of justice”. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction 50/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 that such error, omission or irregularity has resulted in failure of justice.
29.2.In State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533 at page 536
9. Further, the High Court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub- section (1) of Section 19 unless in the opinion of the court a failure of justice has in fact been occasioned thereby.
29.3.The Hon'ble Supreme Court in Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 referring to the earlier precedents has observed that ...A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby... 29.3.These two foundational facts to prosecute the appellants under Section 7 and 13(1)(d) r/w 13(2) and 12 of the Prevention of Corruption Act 1988 are found in the sanctioning order/Ex.P1 and in P.W.1's 51/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 deposition. Further, in the case of State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260, the Hon'ble Supreme Court has held as follows:
When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption.
30.In this case also as discussed above, the sanctioning authority accorded sanction by applying his mind and hence, the presumption under Section 114(e) of the Indian Evidence Act comes into play that the sanctioning authority properly discharged his duty. The accused is duty bound to establish the contra to rebut that statutory presumption and also to establish the failure of justice. In this case, the accused never established both.
31. In this case, the prosecution proved the offence under Section 7 of the Act beyond all reasonable doubt against A1. According to the prosecution, A2 abetted the offence under Section 7 of Prevention of Corruption Act, 1988, as per Section 12 of Prevention of Corruption Act, 1988. Therefore, immediate receipt of amount by the appellant namely, A2 52/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 from A1 itself shows the circumstance that the two are the conspirators to the act.
32. In view of the above discussion, the receipt of the amount illegal gratification is proved. The defence of A1 that he received the amount to repay the debt incurred by P.W.2 to one Thirumaran is not proved at all. The said Thirumaran has not been examined on the side of the defence to dispel the presumption under Section 20 of the Act against A1. The said defence was only an after thought and the same was not proved in accordance with law. In the said circumstance, there is no merit in the appeals and hence, they deserve to be dismissed.
33. In the result, the Judgment of conviction and sentence passed by the learned Special Judge, P.C Act Cases, Madurai, in S.C.No.1 of 2015, dated 31.10.2017, is hereby, confirmed and the Criminal Appeals are dismissed. Consequently, connected Criminal Miscellaneous Petition is closed.
19.03.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No dss/sbn 53/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 To
1. The Special Judge, P.C Act Cases, Madurai.
2. The Inspector of Police, Vigilance and Anti Corruption, Madurai.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai. 54/55 https://www.mhc.tn.gov.in/judis CRL.A(MD).Nos.448 and 477 of 2017 K.K.RAMAKRISHNAN,J.
dss/sbn Order made in CRL.A(MD).Nos.448 and 477 of 2017 19.03.2024 55/55 https://www.mhc.tn.gov.in/judis