Madras High Court
State Represented By vs P.Vedharathinam on 17 October, 2022
CRL.A.(MD).No.60 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.07.2022
PRONOUNCED ON : 17.10.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.A(MD).No.60 of 2019
State represented by
The Public Prosecutor,
High Court, Madras -600 104,
(Vigilance and Anticorruption,
Pudukkottai)
(Crime No.07/2003) .. Appellant/Complainant
Vs.
1.P.Vedharathinam
2.P.Krishnasamy .. Respondents/Accused 1 and 3
PRAYER: Criminal Appeal filed under Section 378(1)(b) Cr.P.C, against the
judgment passed in Special Case No.2 of 2004, dated 20.07.2017, on the file of
the Special Judge/Chief Judicial Magistrate, Pudukottai.
For Appellant : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
For Respondents : Mr.K.K.Ramakrishnan
for R.1
: Mr.C.Mayilvahana Rajendran
for Mr.R.Mathiyalagan
for R.2
https://www.mhc.tn.gov.in/judis
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CRL.A.(MD).No.60 of 2019
JUDGMENT
The Criminal Appeal is directed against the judgment of the acquittal passed in Special Case No.02 of 2004, dated 20.07.2017, on the file of the Chief Judicial Magistrate, Pudukottai.
2. The case of the prosecution as evident from the charge sheet filed by the Inspector of Police, Vigilance and Anticorruption, Pudukottai is that the first accused was working as Junior Engineer in the Aranthangi Agricultural Engineering office, that the second accused was the proprietor of K.M.Muthu Agro Service, that the third accused was working as a salesman under the second accused, that the complainant – P.W.2 submitted an application before the second accused on 11.09.2003 at about 10.00a.m., along with the necessary particulars to purchase a Power Tiller under the subsidy scheme for the recommendation of the first accused, that the second accused demanded a sum of Rs.3,000/- as gratification on behalf of the first accused for making recommendation, that the demands were made on 11.09.2003, 12.09.2003 and finally on 16.10.2003 with instruction to hand over the bribe money on 17.10.2003, that since the complainant was not willing to pay the bribe amount, he preferred a complaint and on that basis, F.I.R. came to be registered in Cr.No. 7 of 2003 under Section 7 of the Prevention of Corruption Act, that a trap was https://www.mhc.tn.gov.in/judis 2/32 CRL.A.(MD).No.60 of 2019 organised by the Inspector of Police, Vigilance and Anticorruption, Pudukottai on 17.10.2003 with the assistance of two official witnesses, that during the trap proceedings, the first accused demanded Rs.3,000/- from the complainant and refused to reduce the amount when a request was made by the complainant, that the first accused instructed the complainant to hand over the bribe amount of Rs.3,000/- to the second accused, that when the complainant tendered the bribe amount of Rs.3,000/- to the second accused, he instructed the complainant to hand over the same to the third accused and accordingly, the third accused received the amount, counted it and expressed the correctness to the accused 1 and 2, who were watching the entire transaction, that the third accused has then prepared invoice with anti date and after obtaining signature of the complainant's father – Manickam Udayar, in whose name the subsidy was granted and handed over the Power Tiller, that after the signal made by the complainant, the Inspector of Police and other came to that shop, recovered the said amount of Rs.3,000/- and after conducting phenolphthalein test, arrested the accused and that thereby, the first accused has committed the offences punishable under Section 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and the accused 2 and 3 who abetted the first accused have committed the offences punishable under Section 12 r/w 7 of Prevention of Corruption Act and under Section 109 I.P.C., and under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
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3. The learned Chief Judicial Magistrate, after the receipt of the final report, has taken the case on file in Spl.C.C.No.2 of 2004 on its file and furnished the copies of records under Section 207 Cr.P.C., to the accused on free of costs. The learned Special Judge cum Chief Judicial Magistrate, on hearing both sides and on perusal of the records, being satisfied that there existed prima facie case against the accused, framed charges under Section 120(b) I.P.C., and under Section13(1)(d) r/w 13(2) of Prevention of Corruption Act against the first accused and under Section 120(b) I.P.C., and under Section 12 r/w 7 of Prevention of Corruption Act against the second accused and under Section 120(b) and 109 I.P.C., and under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act against the third accused and the same were read over and explained to the accused and on being questioned, they denied the charges and pleaded not guilty.
4. The prosecution, in order to prove its case, had examined 19 witnesses as P.W.1 to P.W.19, exhibited 33 documents as Exs.P.1 to P.33 and marked four material objects as M.O.1 to M.O.4.
5. The case of the prosecution emerging from the evidence adduced by the prosecution, in brief, is as follows:
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(a) The defacto complainant – P.W.2 is the son of P.W.3 – Manickam Udayar. P.W.3 is owning 1.25.5 Hectare dry lands and 0.25.0 Hectare wet lands in Sunaiyakadu village. He is a small farmer. P.W.2, on coming to know about the distribution of Power Tiller on subsidy basis, visited Aranthangi Agricultural Engineering office and he was directed to approach K.M.Muthu, Agro Service, Pudukottai. Accordingly, P.W.2 visited the Agro Service shop and enquired about the procedure for getting Power Tiller on subsidy basis. K.M.Muthu Agro Service owner Masana Muthu – second accused, gave two forms and directed him to fill up the forms and to produce photos, copies of chitta, adangal, plan and a demand draft for Rs.77,138/-. The second accused has also informed that the value of the Power Tiller was Rs.1,02,850/- and the subsidy amount was Rs.25,712/-. On 11.09.2003, P.W.2 visited Muthu Agro service and handed over the documents including the demand draft. The second accused, after seeing the documents, informed P.W.2 that he has to produce small farmer identity card and also Rs.3,000/- for the first accused, as the first accused alone has to recommend for the supply of Power Tiller. When P.W.2 informed that the amount was high and he could not pay the said amount, the second accused by returning all the documents, directed P.W.2 to approach the first accused directly. On 12.09.2003, at about 10.45 a.m., P.W.2 had again visited the first accused office and enquired about the supply of Power Tiller. He was informed that he can https://www.mhc.tn.gov.in/judis 5/32 CRL.A.(MD).No.60 of 2019 make delivery of Power Tiller within ten days and directed him to pay Rs.3,000/-
as agreed. On 16.10.2003, the second accused had contacted P.W.2 through phone at about 07.00p.m., and directed him to come on 17.10.2003 for taking delivery and also reiterated the demand for Rs.3,000/-. P.W.2, not willing to pay any amount as bribe, visited the Vigilance and Anticorruption office on 07.10.2003 and gave a complaint under Ex.P.2.
(b) P.W.12, based on the said complaint, registered the F.I.R., in Cr.No.7 of 2003, under Section 7 of Prevention of Corruption Act under Ex.P.
29. P.W.12 made a request to Tamil Nadu Electricity Board and Government Hospital, Pudukottai to depute the officers to accompany the defacto complainant as shadow witnesses. In pursuance of the said request, Thiru.Mohan, Assistant Engineer, Tamil Nadu Electricity Board and Thiru.Natarajan, Statistical Assistant, Government Hospital were deputed. P.W.12 introduced them to P.W.2 and gave a copy of the F.I.R., for them to read and after reading the F.I.R., they enquired with P.W.2 about the veracity of the complaint. Thereafter, P.W.2 gave four notes of Rs.500/- and one note of Rs.1,000/- for Rs.3,000/- before P.W.12, who in turn directed the witnesses to count the notes and thereafter had demonstrated Sodium Carbonate Phenolphthalein test procedures and he prepared the entrustment mahazar under Ex.P.4. P.W.12 had then instructed P.W.2 to meet the accused at their office https://www.mhc.tn.gov.in/judis 6/32 CRL.A.(MD).No.60 of 2019 along with the witnesses and if the accused made any demand and accepted the bribe amount, P.W.2 was instructed to give the pre-arranged signal.
(c) P.W.12 had then directed the complainant and other witnesses to proceed to Muthu Agro Services and accordingly, P.W.2 had proceeded to that place in a load auto. P.W.2 had also picked up his father, who was standing in the bus stop and proceeded to Muthu Agro Services. They have parked their vehicle near Palaniappa lodge and proceeded to Muthu Agro Services shop. The complainant along with the official witness Mohan and the father of P.W.2 had entered into the shop and after some time, the first accused came to that place in a two wheeler. The first accused had taken a photograph by giving a pose that he was handing over the key to the complainant. They have taken the Power Tiller in a load auto and P.W.2's father Manicka Udayar was directed to sign in the papers. Thereafter, the first accused had reiterated his demand of Rs.3,000/-. When P.W.2 tendered the powder applied currency notes of Rs.3,000/- to the first accused, he directed P.W.2 to hand over the same to the second accused, who in turn, directed P.W.2 to hand over the amount to the third accused. When P.W.2 tendered the amount of Rs.3,000/-, the third accused received the amount, counted the same and informed the correctness of the amount to the accused 1 and 2. The complainant, after coming out from the shop, had signalled the police.
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(d) P.W.12 and his team immediately approached P.W.2 and others and directed P.W.2 to identify the accused. P.W.12 introduced himself to the accused and directed him to take out the bribe amount of Rs.3,000/- and accordingly, the accused had taken out the said amount from his pocket and handed over the same. Thereafter, P.W.12 made arrangements for preparation of Sodium Carbonate solution and asked the accused to dip their fingers in the solution. The third accused dipped his fingers of both hands in the solution and the solution changed into light pink colour. Thereafter, he directed the witness to count the currency notes produced by the accused and verified as to whether the same were tallied with the numbers noted in the mahazar prepared at the vigilance office. After verification, the said witness informed that the notes were tallied. P.W.12, by giving alternative dresses, directed the accused to remove his shirt and in pursuance of the same, the accused has produced his clothes. The said solution was also changed into light pink colour. They have recovered 12 documents, in which Agro Services invoice number was 49. After getting intimation, the Deputy Superintendent of Police – Govindaraj came to the spot. P.W.12 has then visited the occurrence place on 17.10.2003 between 17.00 and 17.10 hours and prepared observation mahazar and rough sketch under Ex.P.32 and has taken the accused to their house and made a search therein in the presence of the witnesses and prepared a search list and obtained the signature of https://www.mhc.tn.gov.in/judis 8/32 CRL.A.(MD).No.60 of 2019 the accused and thereafter P.W.12 sent the accused to remand and the properties recovered to the concerned Court.
(e) P.W.14 had taken up the case for further investigation and examined the witnesses and recorded their statements. After completing the investigation, he filed the final report on 25.06.2004 against the three accused. With the examination of P.W.15, the prosecution has closed their evidence.
6. When the accused were examined under Section 313(1) (b) Cr.P.C with regard to the incriminating aspects as against them in the evidence adduced by the prosecution, they denied the same as false and stated that a false case was foisted against them. The defence had adduced no oral evidence, but exhibited two documents as Exs.D.1 and D.2. Ex.D.1 is the arrest card and Ex.D.2 is the remand report.
7. The learned Special Judge cum Chief Judicial Magistrate, upon considering the evidences adduced and on hearing the arguments of both sides, has passed the impugned judgment dated 20.07.2017, holding that the charges levelled against the accused were not proved, acquitted the accused 1 and 3 under Section 235(1) Cr.P.C. Pending trial, since the second accused was https://www.mhc.tn.gov.in/judis 9/32 CRL.A.(MD).No.60 of 2019 reported dead, the charge as against him was ordered to be abated. Aggrieved by the judgment of acquittal, the State has preferred the present Criminal Appeal.
8. Heard Mr.R.Meenakshi Sundaram, learned Additional Public Prosecutor appearing for the appellant, Mr.K.K.Ramakrishnan, learned Counsel for the first respondent and Mr.C.Mayilvahana Rajendran, learned Counsel for Mr.R.Mathiyalagan, learned Counsel for the second respondent and perused the materials placed on record.
9. The learned Additional Public Prosecutor would submit that the trial Court has failed to consider the demand made by the first accused was a continuous one and the last demand was on 06.10.2003 and on that day, he insisted the complainant to pay the demanded bribe amount of Rs.3,000/- after 10 days at the time of taking the Power Tiller, that P.W.2 deposed that the second accused called him over phone on 16.10.2003 and informed him that he can take the Power Tiller on 17.10.2003 and pay the demanded amount of Rs. 3,000/- to the first accused, who himself will obtain the same in person, otherwise the second accused will obtain for the first accused and as such, there is no delay in lodging the report and even if there is any delay, the same cannot be considered as fatal to the prosecution, as the delay was explained by the complainant. He would further submit that though the first accused https://www.mhc.tn.gov.in/judis 10/32 CRL.A.(MD).No.60 of 2019 recommended earlier for supply of Power Tiller, the official act of delivering the Power Tiller was completed only on 17.10.2003 and the evidence is very clear that the first accused has taken the photograph with the father of P.W.2 on 17.10.2003 at the time of delivery of Power Tiller and that the trial Court has failed to consider the subsequent conduct of the accused. He would further submit that the demand was made by the second accused on behalf of the first accused and subsequently, the first accused demanded and the second accused informed him that the amount should be paid directly to the first accused, otherwise he will receive the amount on behalf of the first accused and lastly on the date of trap, as per the instructions of the second accused, the third accused received the money and that the above fcts would go to establish that there was meeting of mind and that the non-seizure of CDR details will not affect the case of the prosecution.
10. The learned Additional Public Prosecutor would further submit that the trial Court has failed to consider the evidence of sanctioning authority that he was holding the post of Chief Engineer in-charge, as such he was the competent authority to accord sanction and that he has perused all the materials and records which were sent by DVAC and after satisfying with the prima facie case, he accorded sanction. He wold further submit that the trap laying officer – P.W.12 has given evidence that he examined all the witnesses and as such, Rule 47 of https://www.mhc.tn.gov.in/judis 11/32 CRL.A.(MD).No.60 of 2019 the Vigilance Manual has been followed and that even assuming for argument sake, that the same was not followed, the same cannot be considered as fatal to the prosecution, as the Manual is only for the guidance of police officials and are not mandatory. The learned Additional Public Prosecutor would further contend that the trial Court has ignored the material evidence available on record and committed grave irregularities and serious lapses in marking evidence, which required to be interfered with.
11. The learned Counsel for the first respondent/first accused would submit that the sanctioning authority – P.W.1 has deposed that he retired as Superintendent Engineer and that the prosecution has not produced any evidence or material to show that P.W.1 was in full additional charge of the post of Chief Engineer at the relevant point of time and that therefore, the sanction alleged to have been granted by P.W.1, who is incompetent to accord sanction is invalid and illegal. The learned Counsel would further submit that there were material discrepancies in mode of preferring the complaint, that the complaint allegedly given by P.W.2 originally was suppressed and in the absence of any explanation for the delay of 36 days in lodging the complaint itself lacks credibility and doubtful. He would further submit that the first accused was not having any power or authority to sanction the Power Tiller to any particular person and it is https://www.mhc.tn.gov.in/judis 12/32 CRL.A.(MD).No.60 of 2019 for P.W.6 to decide about the beneficiaries, that there were material contradictions between the evidence of P.W.2, P.W.3 and P.W.4 with regard to the trap events, that the prosecution has also miserably failed to prove the demands allegedly made on 11.09.2003, 12.09.2003, 29.09.2003, 06.10.2003, 16.10.2003 and 17.10.2003 and that the prosecution has failed to examine two important witnesses viz., the auto driver and one Senthilkumar, who took photograph on that day and they have not offered any reason or explanation for non-examining them.
12. The learned Counsel for the second respondent/third accused would submit that the prosecution witnesses have not spoken about the conspiracy allegedly hatched in the month of September, that there is material contradiction regarding receiving of bribe amount by the third accused, that the explanation given by the accused under Section 313 Cr.P.C., are acceptable and the amount was paid only for the spare parts, that the evidence of P.W.6 and the explanation given by the third accused would make it clear that two views are possible on the above said evidence and that the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
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13. The points for consideration are as follows:
(i) Whether the sanction accorded for prosecuting the respondents/accused is valid and legal?;
(ii) Whether the prosecution has proved the demands and the acceptance theory canvassed by them?;
(iii) Whether the trap proceedings allegedly conducted by the police are true, valid and believable?; and
(iv) Whether the prosecution has proved the charges framed against the accused beyond reasonable doubt?
14. Now let us first take the plea with regard to sanction. The learned Chief Judicial Magistrate has recorded the finding against the prosecution, that the sanction under Ex.P.1 accorded by P.W.1 is invalid. But the learned Additional Public Prosecutor would strongly contend that the trial Court has failed to consider the evidence of Sanctioning Authority, as he clearly deposed that at the time of according sanction, he was holding the post of Chief Engineer in charge and as such, he was the competent authority to accord sanction and that he has also deposed that he has perused all the materials and records which were sent by DVAC and fully satisfied that there was prima facie case against the first accused and hence he accorded sanction. The learned Counsel for the first accused would submit that P.W.1-sanctioning authority has absolutely no https://www.mhc.tn.gov.in/judis 14/32 CRL.A.(MD).No.60 of 2019 locus standi and is not competent enough to accord the sanction and that therefore, Ex.P.1 is vitiated.
15. Admittedly, the first accused was working as Junior Engineer in the Aranthangi Agricultural Engineering Office. During the relevant point of time, P.W.1 was working as Superintendent Engineer. According to the prosecution, P.W.1 was holding full additional charge of Chief Engineer. Admittedly, the prosecution has neither recovered nor produced any material or evidence to show that P.W.1 was holding full additional charge of the Chief Engineer at the relevant point of time. At this juncture, it is necessary to refer the decision of this Court in reported in 2004-1-L.W.(Crl.)275, wherein the judgment of the Hon'ble Supreme Court was referred and the relevant passage is extracted hereunder:
“8. The learned Counsel for the respondent relied on a decision of the Apex Court reported in 2000 SUPREME COURT CASES (CRI) 687 (RAM KRISHAN PRAJAPATI VS. STATE OF U.P.), wherein it has been held thus:
"8. The position is now clear that even though the District Magistrate was also an appointing authority, as the appellant was in fact appointed by the Commissioner, who is admittedly a higher authority than the District Magistrate, the Commissioner is the appointing authority so far as the appellant is concerned.
9. If that be so, the appellant is entitled to contend that the sanction to prosecute him in this case should have been passed https://www.mhc.tn.gov.in/judis by the Commissioner and not by the District Magistrate. The 15/32 CRL.A.(MD).No.60 of 2019 sanction issued by the District Magistrate is not a sanction in the eye of law as the said authority was incompetent to accord sanction for prosecution under the Act concerning the appellant."
The said decision of the Apex Court is squarely applicable to the present facts of the case. Applying the said principles laid down by the Apex Court, the Court is of the considered view that in order to accept the contention of the State that sanction was accorded by a competent person namely P.W.1, who according to him was the Joint Commissioner, no documentary proof or material was placed in the hands of the Court below, and hence, the sanction accorded by P.W.1 is not a sanction in the eye of law, since he was incompetent to accord sanction for prosecution under the Act concerning the respondent/accused. Therefore, without any hesitation, on that ground, the Court has to necessarily agree with the findings recorded by the lower Court. The judgment of the lower Court acquitting the accused has got to be sustained.”
16. The above decision is squarely applicable to the case on hand. As rightly contended by the learned Counsel for the first accused, the Superintending Engineer is not a competent person to accord sanction, whereas the Chief Engineer of that department is the competent person. The learned Counsel for the first accused would further submit that P.W.1 in his evidence has specifically admitted that he had discussed with the Inspector of Police, Vigilance and Anticorruption, but the sanction is to be accorded with an https://www.mhc.tn.gov.in/judis 16/32 CRL.A.(MD).No.60 of 2019 independent application of mind. P.W.1, in his chief examination would say that he called for the concerned Inspector of Police and had a discussion with him and after perusing the records produced by the Inspector Sivakumar and on the basis of the discussion, he had got satisfied and accorded sanction. But in the proceedings under Ex.P.1, he has nowhere whispered that he had a discussion with the Inspector Sivakumar before according sanction. In the penaltimate paragraph, he has stated that after fully and carefully examining the materials placed before him, such as copy of F.I.R. in Cr.No.7 of 2003 of Pudukottai Vigilance and Anticorruption, mahazars, house search list, rought sketch and the statement of witnesses and the accused officer, chemical report and the connected records as mentioned in the Annexure, but he has not elaborated anything further. In the cross-examination, he would admit that he had not seen the service register of the first accused and that he had seen the CE report, but he does not know about the expansion of CE report.
17. Considering the above, this Court has no hesitation to hold that P.W.1, casually, mechanically and without application of mind, more importantly in the absence of competency, has passed the impugned proceedings granting sanction and as such, this Court concludes that the sanction accorded by P.W.1 is not legally valid and the finding of the trial Court in this regard cannot be found fault with.
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18. Before entering into discussion with regard to the merits of the case, it is time to consider the legal position.
19. The Hon'ble Supreme Court in V.Sejappa Vs. State by Police Inspector, Lokayukta, Chitradurga reported in (2016)2 SCC 150, after referring to various judgments of the Hon'ble Supreme Court, has reiterated the principles that the appellate Court must bear in mind, while dealing with the appeals against acquittal and the same are extracted hereunder:
“(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such https://www.mhc.tn.gov.in/judis 18/32 CRL.A.(MD).No.60 of 2019 conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”
20. No doubt, the Hon'ble Supreme Court in State represented by the Inspector of Police, Andhra Pradesh Vs. K.Narasimhachary reported in (2005)8 SCC 364 and in other cases reiterated the well settled principle that if two views are possible, the appellate Court should not interfere with the acquittal by the trial Court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate Court.
21. To counter the said view, the learned Additional Public Prosecutor has relied on the judgment of the Hon'ble Supreme Court in Nayankumar Shivappa Waghmare Vs. State of Maharashtra reported in 2015(11) SCC 213 and argued that the legal position above referred with regard to the possibility of two views https://www.mhc.tn.gov.in/judis 19/32 CRL.A.(MD).No.60 of 2019 has no application, if no two views are possible and the relevant passages are extracted hereunder:
“The learned counsel for the appellant argued before us that since the trial court has acquitted the appellant giving him benefit of reasonable doubt, the High Court erred in law in convicting him as it is settled principle of law that where two views are possible, the finding of the trial court should not be disturbed.
The above argument advanced on behalf of the appellant, in the present case, is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial court can be corrected.
The perusal of the impugned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial court has erred in law in coming to the conclusion that the charge in respect of offence punishable under Sections 7 and 13(1)(d)read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial court. Here also in this case no two views are possible.” https://www.mhc.tn.gov.in/judis 20/32 CRL.A.(MD).No.60 of 2019 There is absolutely no dispute with respect to the position of law laid down by the Hon'ble Supreme Court in Sejappa's case and Nayankumar Shivappa Waghmare's case, cited by the learned Additional Public Prosecutor.
22. As rightly contended by the learned Counsel for the respondent, the prosecution, in order to prove the charges, is duty bound to prove the prima facie case that there was a demand and acceptance of illegal gratification. In the present case, admittedly a sum of Rs.3,000/- was recovered from the third accused during the trap proceedings. Even according to the defence, the 3rd accused has admitted the factum of recovery of Rs.3,000/- from him. But according to him, the same was received not towards illegal gratification, but for the purchase of some accessories to the Power Tiller.
23. The learned Counsel for the respondent would submit that mere recovery of tainted money is not sufficient to convict the accused and the prosecution has to prove through acceptable and sufficient evidence with regard to demand and acceptance of the amount as illegal gratification. The learned Counsel for the respondent has relied on a judgment of the Hon'ble Apex Court in T.K.Ramesh Kumar Vs. State through Police Inspector, Bangalore reported in (2015)15 SCC 629, wherein the Hon'ble Apex Court has referred another https://www.mhc.tn.gov.in/judis 21/32 CRL.A.(MD).No.60 of 2019 judgment of the Hon'ble Supreme Court in Mukut Bihari Vs. Rajasthan reported in (2012)11 SCC 642 and the same is extracted hereunder:
“In this regard it would be appropriate for this Court to refer to the decision of this Court in the case of Mukut Bihari & Anr. vs. State of Rajasthan, (2012) 11 SCC 642, which reads thus:
“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 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 https://www.mhc.tn.gov.in/judis 22/32 CRL.A.(MD).No.60 of 2019 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.”
24. The learned Counsel has also relied on Sejappa's case referred supra, for the position that mere recovery of tainted money is not sufficient and that the corroboration of the testimony of the complainant regarding the demand of bribe is necessary and the relevant passages are extracted hereunder:
“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. 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 https://www.mhc.tn.gov.in/judis 23/32 CRL.A.(MD).No.60 of 2019 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.”
20. 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.”
25. In the judgment cited by the learned Additional Public Prosecutor in the State represented by the Inspector of Police, CBI, ACB, Madurai Vs. C.A.A.Ashokkumar reported in CDJ 2020 MHC 3454, a learned Judge of this Court has held that as per the statutory presumption under Section 20 of the Prevention of Corruption Act, once the demand, acceptance and recovery are proved, it is for the respondent/accused to rebut the presumption in the manner known to law.
26. As rightly contended by the learned Counsel for the respondent, once the prosecution proves their case of demand, acceptance and recovery prima facie, then the presumption under Section 20 the Prevention of Corruption Act https://www.mhc.tn.gov.in/judis 24/32 CRL.A.(MD).No.60 of 2019 comes into play and the burden of proof gets shifted to the accused and that the accused has to prove that the amount received was not towards any illegal gratification, but for some other purposes. In the case on hand, according to the accused, the prosecution has miserably failed to prove the demand theory projected by them. It is the specific case of the prosecution that there were six demands from 11.09.2003 to 17.10.2003. As already pointed out, according to the prosecution, when P.W.2 visited the shop of the second accused, he demanded Rs.3,000/- on behalf of the first accused for making recommendation for allotment of Power Tiller to P.W.3 – father of P.W.2. P.W.2, in his evidence would say that he had not visited the shop of the accused prior to the trap occurrence, that he visited the second accused's shop only on that day, that he does not know about the third accused and that the third accused had not demanded any amount from him. Considering the material contradiction as rightly contended by the learned Counsel for the accused, the demand alleged to have been made by the second accused on 11.09.2003 appears to be false.
27. Regarding the third demand on 29.09.2003, there is absolutely no whisper about the said demand in the complaint under Ex.P.2. Regarding the subsequent demand allegedly made on 06.10.2003, the same also does not find place in the complaint. According to the prosecution, the second accused on 16.10.2003 had contacted P.W.2 and demanded the amount. But admittedly, the https://www.mhc.tn.gov.in/judis 25/32 CRL.A.(MD).No.60 of 2019 prosecution has not produced the call details regarding the conversation between the second accused and P.W.2. Regarding the demand made on 12.09.2003 and other demands, except the interested testimony of P.W.2, there is no other evidence to corroborate the version of P.W.2 regarding the demand of money during the trap proceedings on 17.10.2003. Though P.W.2 has alleged that the first accused had reiterated his demand of Rs.3,000/-, P.W.2's father – the beneficiary under the scheme, in his evidence would say that there was no demand on 17.10.2003 and he was deposing on the basis of the conversation that had taken place in the shop.
28. As rightly contended by the learned Counsel for the first accused, even according to the prosecution, the first accused has sent the application submitted by P.W.2 along with his recommendation to the office of P.W.6 on 12.09.2003 itself, that P.W.6 has granted his approval, sanction and delivery order on 13.10.2003 and that the delivery of Power Tiller was held on 15.10.2003 and that therefore, there was no occasion or chance for the first accused to demand any amount towards bribe subsequent to 12.09.2003.
29. According to the prosecution, P.W.2 and P.W.3 were present in the programme held on 15.10.2003 for delivery of Power Tiller. But P.W.3 had not taken the delivery of Power Tiller on 15.10.2003. Neither P.W.2 nor P.W.3 has https://www.mhc.tn.gov.in/judis 26/32 CRL.A.(MD).No.60 of 2019 offered any reason or explanation for not receiving the Power Tiller on 15.10.2003. P.W.2 in his evidence would submit that the Power Tiller was handed over to his father as per the invoice. But after the delivery, the Power Tiller was again returned to the second accused's shop. P.W.3 – beneficiary in his evidence would say that he does not know about the complaint lodged by his son, that the Power Tiller was delivered even before the demand and that he does not know about the money demand made by the Engineer.
30. As rightly contended by the learned Counsel for the first accused, in the recovery mahazar, the documents available at the office of P.W.6 were found place and there was no explanation as to how the said document particulars were incorporated in the mahazar and as such, the very preparation of mahazar appears to be doubtful. P.W.12 would admit that there were no particulars as to how and from whom and where the documents listed as 4 to 15 shown in the mahazar were recovered and whereas P.W.15 would say that he did not recover any documents and P.W.2 alone recovered. On the other hand, P.W.12 would say that he sent a requisition to the accused office for producing the required documents. It is pertinent to note that even before collecting the documents, the particulars of the documents were mentioned and no reason or explanation is offered in this regard.
https://www.mhc.tn.gov.in/judis 27/32 CRL.A.(MD).No.60 of 2019
31. As already pointed out, the defence of the accused is that Rs.3,000/- was received by the third accused towards the accessories. As rightly contended by the learned Counsel for the third accused, the explanation of the third accused appears to be plausible. P.W.4 would say that some other accessories were also given along with Power Tiller and that he does not remember as to whether the said accessories have been placed in the invoice. P.W.12 would admit that other accessories such as steel wheel, cage wheel and Power Tiller, ridger find place in Ex.P.10 invoice. As already pointed out, the third accused in his statement recorded under Section 313 Cr.P.C., has stated that he does not receive any amount from anybody, and that P.W.2 had paid amount for extra cage wheel for Power Tiller.
32. Regarding the trap proceedings, the learned Counsel for the accused 1 and 3 would submit that there were material contradictions between the evidence of P.W.2, P.W.3 and P.W.4, that P.W.2 would say that the invoice was prepared after handing over the vehicle, but P.W.3 and P.W.4 would say that the bill was prepared before delivery. Even according to P.W.2, the delivery was already effected on 15.10.2003 and after delivery, Power Tiller was transferred again to the second accused's shop and as such, the case of the prosecution that the invoice and delivery challan were prepared on 17.10.2003 appears to be false. https://www.mhc.tn.gov.in/judis 28/32 CRL.A.(MD).No.60 of 2019
33. As rightly pointed out by the learned Counsel for the accused 1 and 3, P.W.2 in his evidence would say that he had handed over M.O.1 series amount to the first accused, but he refused to receive and directed him to hand over to the second accused, that when the amount was offered, the second accused has also refused to receive and directed P.W.2 to hand over the same to the third accused and that the third accused had received the amount and after counting the same, kept the same in his shirt pocket. P.W.3 and P.W.4 in their evidence would say that when P.W.2 had attempted to hand over the amount to the second accused, he had directed P.W.2 to hand over the same to the first accused, but the first accused had directed the third accused to receive the amount and to count the same and accordingly, the third accused received the amount and counted the same. P.W.4 in his evidence would say that when P.W.2 had handed over the amount to the second accused, he directed P.W.2 to hand over the same to the third accused and accordingly, the third accused received the amount.
34. Now turning to the conspiracy theory, in order to constitute a conspiracy, meeting of minds of two or more people for doing an illegal act or an act by illegal means is the first and primary condition and that it is not necessary that all the conspirators must know each and every details of conspiracy. According to the prosecution, a conspiracy was hatched in the month of September. But admittedly, the year, date, time and place does not find place. https://www.mhc.tn.gov.in/judis 29/32 CRL.A.(MD).No.60 of 2019 Moreover, the third accused's name does not find place in the F.I.R., which was registered on 17.10.2003. Even assuming for argument sake, that conspiracy was hatched in September 2003, there is absolutely no evidence to substantiate the same. As rightly pointed out by the learned Counsel for the respondents, none of the prosecution witnesses have spoken about the conspiracy allegedly happened in the month of September.
35. Considering the above, this Court has no hesitation to hold that the prosecution has miserably failed to discharge the initial burden of proof regarding demand and acceptance of illegal gratification and hence the question of burden shifting to the accused does not arise at all. No doubt, the prosecution has proved the recovery of money from the accused, but as per the settled position of law, mere recovery of money is not enough to draw the presumption under Section 20 of the Prevention of Corruption Act. The Hon'ble Supreme Court in the judgments cited supra and in various judgments, has reiterated the legal position that the demand of illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act.
36. Considering the above, this Court is of the view that evaluation of the evidence made by the trial Court while recording the judgment of acquittal does not suffer from any infirmity or illegality and the grounds on which, the https://www.mhc.tn.gov.in/judis 30/32 CRL.A.(MD).No.60 of 2019 judgment of acquittal is based cannot said to be unreasonable. Hence, this Court concludes that the Criminal Appeal is devoid of merits and the same is liable to be dismissed.
37. In the result, the Criminal Appeal is dismissed.
17.10.2022
Index : Yes/No
Internet : Yes/No
SSL
To
1. The Special Court for trial of cases under Prevention of Corruption Act, Chief Judicial Magistrate Court, Pudukottai..
2.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 31/32 CRL.A.(MD).No.60 of 2019 K.MURALI SHANKAR, J.
SSL PRE-DELIVERY JUDGMENT MADE IN CRL.A(MD).No.60 of 2019 17.10.2022 https://www.mhc.tn.gov.in/judis 32/32