Madras High Court
R.Damodaran vs State Represented By on 28 July, 2010
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 28.7.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA Crl.A.No.94 of 2005 R.Damodaran .. Appellant/Accused Vs State represented by The Inspector of Police, Vigilance and Anti-Corruption, Erode Division, Erode .. Respondent/ Complainant Prayer: Criminal Appeal filed against the judgment of conviction and sentence passed by the learned Special Judge cum Chief Judicial Magistrate, Erode dated 18.1.2005 in Special C.C.No.41/2003. For Appellant : Mr.N.R.Elango, Senior Counsel for Mr.R.Vivekananthan For Respondent : Mr.J.C.Durairaj, GA (Crl.side) J U D G M E N T
The challenge in this appeal is to the judgment of the learned Chief Judicial Magistrate cum Special Judge, Erode dated 18.1.2005 made in Special C.C.No.41/2003, convicting the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 2 months rigorous imprisonment and also convicting the appellant for the offence under Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 2 months rigorous imprisonment. The sentences are ordered to run concurrently.
2. The accused faced the trial under the following backdrop :
2.1. The accused was working as Inspector of Assessment in the Office of the Junior Engineer, Operation and Maintenance, Rural Tamil Nadu Electricity Board, Erode. PW2 is an electrician and he is a resident of Erode Railway Colony. In the year 2001, PW2's mother was constructing the house in her plot and for that PW2 has obtained temporary electricity service connection. After completion of the construction of the house in the year 2002, PW2 went to the office of the Electricity Board for the purpose of conversion of tariff and for changing of the electricity meter.
2.2. On 11.10.2002, PW2 met PW8, the Foreman at the office of the Electricity Board. He gave two applications, Exs.P6 & P7 to PW8, one for changing the meter and another for changing the tariff. PW8 on receipt of the applications informed PW2 that he has to pay an amount of Rs.350/- for changing the meter board. The said amount of Rs.350/- was paid by PW2 to PW8. PW8 instructed PW2 to meet the accused in respect of change of tariff. Accordingly, PW2 met the accused on the same day i.e., on 11.10.2002. On seeing the application form, the accused informed him that he has to pay Rs.150/- towards charges for tariff change and Rs.200/- to be paid for himself as bribe and for that PW2 informed that, he is having only Rs.200/-. The accused has further stated that on payment of the said amount, he would give the receipt. PW2 paid Rs.200/- on that day.
2.3. Again on 28.10.2002, PW2 met the accused at 10.00 a.m and sought for the receipt. The accused informed him that the Junior Engineer has not signed and also asked whether he has brought the money which was asked by him earlier. PW2 requested him to reduce the amount to Rs.150/- and the accused told him to bring Rs.100/- after reducing Rs.50/-. The accused also instructed him to bring the amount on 31.10.2002. On 31.10.2002, PW2 met the accused in the officer. Again the accused informed him that the Junior Engineer has not signed and he has asked him to come on the next day with the money. PW2 is not inclined to pay the amount of Rs.100/- as bribe.
2.4. On 1.11.2002, PW2 went to the Vigilance and Anti-Corruption Office, Erode. He gave the report, Ex.P2 to PW12, the Inspector of Police, Vigilance & Anti-Corruption. PW12, on receipt of the report Ex.P2 registered the case in Crime No.11/AC/2002/ER under Section 7 of the Prevention of Corruption Act, 1988. Ex.P8 is the F.I.R.
2.5. PW12, made the confidential enquiry about the accused. Thereafter, he has obtained sanction Ex.P1 from PW1, the Superintending Engineer, Tamilnadu Electricity Board, Erode. Thereafter, he has summed two witnesses, PW3 and another. PW12, introduced PW2 to PW3 and another. PW2 produced 2 fifty rupee notes, M.O.1 series totaling Rs.100/- brought by him to PW12. PW12 demonstrated the phenolphthalein test to PW2, PW3 and others. He prepared the Mahazar Ex.P3 for such proceedings conducted prior to the trap. He has instructed PW2 to pay the amount only in the event of the accused demanding the same and further instructed him to give a prearranged signal of releasing the foldings of his shirt by coming out of the office of the accused. The raiding party left the Vigilance Office at 11.45 a.m. 2.6. PW2 went inside the office of the accused along with PW3 at 12.00 noon. PW2 asked for the receipt, for which the accused said that the Junior Engineer has not signed and instructed him to come by 2.00 p.m. PW2 came out along with PW3 and informed PW12. Again at 2.00 p.m, PWs.2 & 3 went inside the office of the accused and the accused said PW2 that the Junior Engineer has not yet signed and instructed PW2 to come again at 5.00 p.m. PW2 went to the office of the accused along with PW3 again at 5.00 p.m and at that time the accused asked whether he has brought the money and PW2 gave 2 fifty rupee notes by taking out the same from his packet. The accused received the said amount and put in his left hand side shirt packet. The accused also issued the receipt for Rs.150/-. PWs.2 & 3 came out and PW2 gave the prearranged signal. PW12 and his raiding party came to the office of the accused. PW12 asked PW2 to wait outside the office of the accused.
2.7. PW12 introduced himself to the accused. The accused became perturbed. PW12 conducted phenolphthalein test and the same proved positive. On enquiry, the accused produced the amount of Rs.100/- by taking out from his left hand side shirt packet. The shirt packet was also subjected to phenolphthalein test and the same proved positive. The accused also produced some other amount of Rs.3,100/- from his pant packet. The accused explained that the amount of Rs.700/- belongs to him and Rs.2,400/- is the tariff amount paid by another customer. PW12 also recovered Exs.P10, P11, P12, P13, P14, P15 and Ex.P6 & Ex.P7. He also recovered the shirt, M.O.5. He prepared sample seal, M.O.6. He has arrested the accused at 9.00 p.m on the same day. He prepared the Mahazar Ex.P4 for the trap proceedings. He searched the house of the accused from 9.30 p.m to 10.00 p.m and no incriminating materials recovered. Ex.P16 is the search list. He has produced the accused before the Court for remand and sent the report to the higher police officials.
2.8. PW13, the Deputy Superintendent of Police, Vigilance, took up further investigation and examined PWs.2, 3 and other witnesses. After examination of the witnesses and on completion of investigation, he laid the charge sheet against the accused on 30.6.2003 for the offences under Sections 7 & 13 (2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988.
3. The prosecution in order to bring home the charges against the accused, examined PWs.1 to 13, filed Exs.P1 to P24 and marked M.Os. 1 to 6.
4. When the accused was questioned under Section 313 of the Criminal Procedure Code, in respect of incriminating materials appearing against him, he has come forward with the version of denial and further the accused submitted a written statement. In the written statement he has stated that, there was delay in issuing demand notice. Though PW2 came to him for sometime, as Junior Engineer has not signed the demand notice, he cannot collect the amount. It is further stated that on 1.11.2002, the Junior Engineer has signed the demand Register and also signed in the application form. Therefore, he has asked PW2 to pay the amount and accordingly PW2 paid the amount. The accused found only 2 fifty rupee notes and informed PW2 that he has given only Rs.100/- for that PW2 stated that, he has not counted properly and stated that, he would bring the balance amount from his vehicle and left the office and within few minutes, the police officers came to his office. Thereafter, the case was foisted on him. The accused has not chosen to examine any witness on his side.
5. Mr.N.R.Elango, learned Senior Counsel appearing for the appellant vehemently contended that the prosecution failed to prove its case by adducing clear and consistent evidence and put forward the following contentions:
(i) The prosecution has miserably failed to prove the demand of illegal gratification made by the accused as the evidence of PW2 is self-contradictory and there are contradictions in material particulars between his report Ex.P2 and his evidence and also contrary to the evidence of PW8, the Foreman of the Electricity Board.
(ii) PW2 has categorically stated in his chief examination that the accused demanded Rs.150/- towards tariff change charges and Rs.200/- for himself and he has paid Rs.200/- on 11.10.2002 but in the report Ex.P2 he has not stated about paying the amount of Rs.200/- to the accused.
(iii) As per the version of PW9, the Junior Engineer, the amount of Rs.150/- towards charges for tariff change was fixed only on 21.10.2002 and as such it is highly improbable for the accused to make any such demand of Rs.150/- towards payment for tariff change charges and consequently, even the alleged demand of bribe on the said date proved to be false.
(iv) The present version of PW2 is to the effect that, he has paid the amount of Rs.200/- on 11.10.2002, but he has not stated so in his report Ex.P2 and if he has really paid the said amount of Rs.200/- he has to pay balance of Rs.150/- to the accused as per his demand. PW2 admittedly paid only an amount of Rs.100/- by giving 2 fifty rupee notes on the date of trap i.e., on 1.11.2002. Therefore, the prosecution has failed to prove the demand of illegal gratification made by the accused prior to the trap.
(v) The version of PW2 about the demand of bribe made by the accused on the date of trap i.e., on 1.11.2002 is also highly doubtful and unreliable. It is the version of PW2 that, he has went inside the office of the accused on the date of trap along with PW3 in the forenoon and the accused informed him that the Junior Engineer has not yet signed and therefore instructed him to come by 2.00 p.m and at that time, even as per the admitted version of PWs.2 & 3, the accused has not demanded any bribe amount. Again PW2 went to the office of the accused at 5.15 p.m and at that time the accused asked him whether he has brought the money as asked by him and he has handed over 2 fifty rupee notes totaling Rs.100/-. If really the accused demanded any bribe amount earlier, PW2 has to give only Rs.150/- and not Rs.100/- and as such the version of PW2, on the face of it is unbelievable. Therefore, the prosecution has miserably failed to prove the alleged demand said to have been made by the accused prior to the trap and as well as at the time of trap.
(vi) The conduct of PW2 by paying the amount of Rs.100/- containing 2 fifty rupee notes substantiates the defence theory that the accused asked for the balance amount of Rs.50/- towards tariff change charges as the tariff change charge was fixed at Rs.150/- and PW2 under the guise of bringing the balance of Rs.50/- went outside the office of the accused and thereafter the raiding party came inside the office of the accused and recovered the amount.
(vii) The accused has given a reasonable and probable explanation about the receipt of the amount of Rs.100/- and as such rebutted the presumption contemplated under Section 20 of the Prevention of Corruption Act.
(viii) Mere receipt of the amount by the accused in the absence of proof of demand and of acceptance of money as illegal gratification not sufficient to establish the guilt of the accused. Moreover, the accused has also given probable explanation for the receipt of the amount.
6. Per contra, Mr.J.C.Durairaj, learned Government Advocate (Crl.side) contended that the prosecution has proved its case by adducing clear and cogent evidence through PWs.2, 3 & 12. It is contended that the prosecution proved the demand made by the accused through the evidence of PW2 in respect of demand made prior to the date of trap and on the date of trap as the version of PW2 is corroborated by the version of PW3. The learned Government Advocate (Crl.side) submitted that the prosecution has succeeded in establishing that the accused received the amount only towards illegal gratification and even the phenolphthalein test proved positive. Therefore, it is contended that there is no infirmity or illegality in the impugned judgment of conviction.
7. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record and perused the impugned judgment of conviction.
8. At the outset, it is to be stated that the star witness viz., PW2, the defacto complainant in this case has not come forward with the clear and consistent version in respect of demand of illegal gratification said to have been made by the accused as well as in respect of the demand of bribe amount at the time of trap i.e., on 1.11.2002. The first and foremost ingredient for proving the offence of the receipt of illegal gratification is the proof of demand made by the accused.
9. Let me now evaluate and assess the evidence of PW2 to find out whether the prosecution has succeeded in establishing the alleged demand of bribe made by the accused prior to the trap and at the time of trap. The categorical version of PW2 is to the effect that he has submitted two applications namely Exs.P6 & P7 one for change of the place of electricity meter and another for tariff change to PW8. PW2 has stated that PW8 received the amount of Rs.350/- towards change of electricity board meter to different place, but PW8 has not whispered a word about PW2 paying the amount of Rs.350/- to him. PW8 has categorically admitted in his cross examination that, he has not received Rs.350/- and he came to know about the payment of the said amount only from the verification of the register. It is further seen that, PW2 stated that, he was informed by the accused on 11.10.2002 that he has to pay an amount of Rs.150/- towards change of tariff and Rs.200/- towards bribe to him. But the evidence of PW9, the Junior Engineer, makes it crystal clear that the amount to be paid, has to be decided only by PW9 and he has instructed the accused to collect Rs.150/- towards charges for change of tariff only on 21.10.2002 and as such the evidence of PW2 that the accused demanded Rs.150/- towards charges for tariff change on 11.10.2002 and made further demand of Rs.200/- on the said date is unbelievable and unreliable.
10. It is pertinent to note that, there are contradictions between the evidence of PW2 and the report Ex.P2. In the report Ex.P2, PW2 has stated that, while the accused made the demand of Rs.200/- as bribe and Rs.150/- as charges for tariff change, PW2 has informed the accused that he is having only Rs.200/- and thereafter the accused told him to give Rs.200/- on the day and pay the amount of Rs.150/- afterwards and thereafter he simply left the office of the accused. But in his evidence, PW2 has categorically stated that, he has paid the amount of Rs.200/- on 11.10.2002. This material contradiction raises serious doubt about the veracity of the version of PW2 in respect of the alleged demand said to have been made by the accused. At this juncture, it is relevant to state that, in respect of the demand of bribe made by the accused prior to the trap, except the solitary evidence of PW2, there is no other material available on record to corroborate the version of PW2. On the other hand, the version of PW2 in respect of the demand made by the accused prior to the trap proved to be contrary to the version of PWs.8 & 9. Therefore, this Court has no hesitation to hold that the prosecution has miserably failed to prove the alleged demand of bribe said to have been made by the accused prior to the trap.
11. Even in respect of demand made by the accused on the crucial time of trap is also bristled with suspicious circumstances. The fact remains that, while PWs.2 & 3 went inside the office of the accused at the time of trap i.e., on 1.11.2002 at 12.00 noon, admittedly the accused has not demanded the amount and he has simply stated that the Junior Engineer has not signed and as such, he has instructed him to come by 2.00 p.m. It is pertinent to note that, in the cross examination, PW2 has categorically admitted that, when he met the accused on the date of trap, the accused has not demanded the amount and he has stated that he has to prepare the receipt only after the Junior Engineer has signed the order. It is relevant to note that, as per the admitted version of PW3, though PW3 accompanied PW2 all along for three times on the date of trap to the office of the accused, on seeing both PWs.2 & 3, the accused has not put any question to PW2 regarding the presence of PW3 and regarding the relationship between PW2 and PW3. If really the accused has demanded the bribe amount from PW2 in the presence of PW3, the prudent and normal conduct of the accused is to verify about PW3, who is a total stranger to him. Added to all these infirmities, it is pertinent to note that PW2 as well as PW3 have categorically admitted in their cross examination that, while they went to the office of the accused three times on the date of trap, other persons were also found present along with the accused in his office. Such being the position, it is inherently improbable for the accused to demand bribe amount in the presence of other witnesses.
12. Added to all these infirmities and inconsistencies, the yet another disturbing feature in the prosecution case is also seen to the effect that, admittedly PW2 handed over 2 fifty rupee notes at the time of trap totaling to Rs.100/-. If the version of PW2 is true to the effect that he has already paid an amount of Rs.200/- and then he has to pay the balance amount of Rs.150 and not Rs.100/-. Therefore, this Court has no hesitation to hold that the prosecution has also miserably failed to prove the alleged demand of bribe said to have been made by the accused at the time of trap as well as prior to the trap.
13. At this juncture, it is relevant to refer to the decisions of the Hon'ble Apex Court in V.Venkata Subbarao v. State represented by Inspector of Police, A.P reported in (2006) 13 SCC 305 wherein the Hon'ble Apex Court has held here under:
"24............. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:
20.Presumption where public servant accepts gratification other than legal remuneration.-(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause(a) or clause(b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presume, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution.
26. In M.S.Narayana Menon v. State of Kerala, this Court held:(SCC p.55, para 45) "Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceedings."
14. Now coming to the recovery portion of the prosecution case, it is seen that the accused said to have received the amount of Rs.100/- from PW2 at the time of trap and the phenolphthalein test is also said to have been proved positive. But the fact remains that the accused has come forward with the categorical explanation to the effect that, he has received the amount only towards charges for change of tariff. It is the defence version that, Rs.150/- was fixed for change of tariff and PW2 has not paid the amount of Rs.200/- on earlier occasion i.e., on 11.10.2002 as claimed by PW2. This Court already pointed out earlier that, there is contradiction between the evidence of PW2 and his report Ex.P2 to the effect that in Ex.P2 there is no whisper about paying the amount of Rs.200/- to the accused but during the course of evidence, it is stated by PW2 that, he has paid the amount of Rs.200/- and as such the version of PW2 is unbelievable and unreliable. Therefore, it goes without saying that the accused ought to have received the amount from PW2 only towards payment of charges for tariff change. It is also explained by the accused that, he has asked PW2, as he has given only Rs.100 containing 2 fifty rupee notes in respect of Rs.150/- and PW2 stated that he will bring the balance from his vehicle and came out of the office of the accused and thereafter gave a signal to the raiding party which culminated into the recovery of Rs.100/- from the accused. The defence has put a specific suggestion to PWs.2, 3 and 12 in respect of the above said defence theory. The accused has also come forward with such an explanation by way of written statement submitted during the course of questioning under Section 313 of the Criminal Procedure Code.
15. Though this Court placed reliance on the decision of the Hon'ble Apex Court to the effect that in the absence of proof of demand, presumption under Section 20 of the Prevention of Corruption Act could not be raised, in view of the specific explanation given by the accused in this case, even assuming that the presumption under Section 20 could be raised against the accused on the ground of receipt of the amount, the accused has come forward with the reasonable and probable explanation as stated above and as such he has rebutted the presumption. It is well settled that the accused can rebut the presumption by way of cross examination or by preponderance of probabilities. In the case on hand, as already pointed out that the accused has come forward with the reasonable and probable explanation to the effect that the he has received the amount only towards charges for changing the tariff at the earliest point of time.
16. At this juncture, it is relevant to refer to the decisions of the Hon'ble Apex Court in Trilok Chand Jain Vs. State of Delhi reported in AIR 1977 SC 666 wherein the Hon'ble Apex Court has held as under:
"8........ The presumption summation however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden off proof which Section 4(1) casts on an accused person to rebus the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under Section 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; is not necessary for him to establish his case beyond a reasonable doubt".
17. Again in Punjabrao Vs. State of Maharashtra reported in (2002) 10 SCC 371, the Hon'ble Apex Court has held as under:
"3........ It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
18. It is also relevant to refer the decision of the Hon'ble Apex Court in T.Subramanian Vs. State of T.N reported in (2006) 1 SCC 401, wherein the Hon'ble Apex Court has held here under:
"12. Mere receipt of Rs.200 by the appellant from PW1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) of Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been paid as least rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable or reasonable, then the appellant had to be acquitted, as rightly done by the Special Court."
The above principle of law laid down by the Hon'ble Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case, as in this case also the prosecution not only failed to prove the demand made by the accused, but also miserably failed to prove the acceptance of the amount as illegal gratification. As already pointed out, the accused/the appellant herein has given reasonable and probable explanation for the receipt of the currency notes, M.O.1 series, only towards the tariff change charges and not as bribe.
19. The yet another incriminating circumstance relied on by the prosecution is to the effect that, according to PW3 as well as PW12, when PW12 entered into the office of the accused and introduced himself and others, the accused has become perturbed. The Hon'ble Apex Court has held in Sat Paul v. Delhi Administration reported in AIR 1976 SC 294 as hereunder:
"25..... It would not be unusual even for an honest officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior Officer."
Therefore, it is very clear that merely because the accused has became perturbed while he was questioned by PW.12, no adverse inference could be drawn against him.
20. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned judgment of conviction is unsustainable. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant by the learned Special Judge cum Chief Judicial Magistrate, Erode by the judgment dated 18.1.2005 in Special C.C.No.41/2003 are hereby set aside. Fine K.N.BASHA, J.
jvm amount if any paid is directed to be refunded to the appellant. Bail bonds executed, if any, shall stand terminated.
28.7.2010 jvm Index :yes/no Internet :yes/no To
1.Special Judge cum Chief Judicial Magistrate, Erode
2.The Public Prosecutor, Madras High Court.
Crl.A.No.94 of 2005