Madras High Court
M.K. Shanmughasundaram vs The Inspector Of Police, Vigilance And ... on 10 August, 2006
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. This Criminal Appeal has been filed against the conviction of the appellant under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/= for each section and in default to undergo rigorous imprisonment for three months for each section.
2. The appellant-accused was working as Village Administrative Officer, Pallipalayam Agraharam, Thiruchengode Taluk. The respondent filed a charge sheet against the petitioner on 13.12.1991. The charge against the accused is that on 9.10.1990 at about 10.50 a.m., he accepted a sum of Rs. 1,000/= from one N.V.Balachandran, P.W.2, as illegal gratification other than legal remuneration for having issued a solvency certificate on 5.10.1990 and for preparing and issuing in the name of P.W.2 extracts of chitta adangal FMB sketch in respect of the lands of the said N.V.Balachandran and thus committed an offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
3. The brief facts of the prosecution case are as follows:
(a) P.W.2, N.V.Balachandran was working as Manager of Pioneer Handlooms run by his uncle Muthusamy and Arthanari (P.W.3) was a labourer. P.W.2 wanted to commence a power loom business independently. He approached P.w.5, K.K. Rajendran, the clerk attached to the power look cooperative society, Pallipalayam seeking guidance to obtain loan from Tamilnadu Industrial Investment Corporation (TIIC). P.W.5 advised P.W.2 that chitta adangal and FMB sketch are required for the purpose of mortgaging the property standing in the name of PW2 apart from Solvency Certificate to secure loan from TIIC.
(b) On 5.10.1990, P.W.2 approached the accused who was the VAO of Pallipalayam Village and sought the extracts of Chitta, Adangal and FMB Sketch of his property. The accused demanded gratification of Rs. 1000/= for the issuance of the said certificate to P.W.2. The inability expressed by PW.2 to meet the demand of the accused fell on deaf ears. On the very same, the accused had chosen to issue solvency certificate (Ex.P.3) to P.W.2. On 8.10.1990 at about 11.00 a.m., P.W.2 and Arthanari met the accused at Thiruchengode Road, while they were proceeding to attend the personal work of P.W.2. The accused who came in a Scooter stopped on seeing them and enquired whether PW.2 was ready to pay the amount he demanded earlier. P.W.2 in the presence of P.W.3 informed the accused that he was making arrangements to mobilise the amount he demanded.
(c) P.W.2 having secured a sum of Rs. 1,000/= from his uncle Muthusamy came down to the V & A C cell, Salem at about 7.00 a.m., on 9.10.1990 and submitted a complaint. P.W.7, Inspector of Police, received the said complaint and registered a case in Cr. No. 3/AC/90 under Section 7 of the Prevention of Corruption Act and prepared printed FIR Ex.P.11. To trap the accused, P.W.7 despatched requisitions to the Joint Director of Agricultural Department Salem and District Forest Officer, Salem to spare a witness each to assist the V & AC, Salem. P.W.4 an Assistant working in the office of the Joint Director of Agriculture, Salem and K. Sundararajan and Mr. Selvaraj attached to Forest Department Salem reached the office of the V & AC, Salem at 8,.00 a.m., on 9.10.1990. Having got mutual interaction P.W.4 and the said Selvaraj had the opportunity to peruse the complaint lodged by P.W.2. They also enquired with P.W.2 and ascertained the facts stated n the complaint.
(d) P.W.7, having confirmed the possession of Rs. 1000/= with P.W.2 directed him to handover the said sum to the witness Sundararajan and asked him to count the notes. He counted the said notes. P.W.7 prepared Sodium Carbonate Solution and directed PW4 to dip his fingers into the solution. There was no change of colour of solution. The Head Constable Mr. Raju who was present there was directed to treat the said notes with Phenolphthalein Powder. Thereafter the said currency notes were again handed over to P.W.4 who was directed to dip his fingers in the sodium carbonate solution. The witnesses found that the solution turned into pinkish turbid liquid. The sodium carbonate solution which was used for demonstration and labelled as S1 (M.O.2), the sample of Phenolphthalein Powder which was used for the purpose of demonstration labelled as "A" (M.O.3) and the sample of sodium carbonate powder which was used for demonstration labelled as "B" (M.O.4) were recovered under relevant seizure mahazar (Ex.P.5). The witnesses subscribed their signature to Ex.P.5.
(e) Thereafter, PW.7 instructed P.W.2 to hand over the said sum of Rs. 1000/= only when the accused demand the same. He also requested P.W4 to accompany P.W.2 to the office of the accused at Pallipalayam. At about, 10.30 a.m., on the same day, the vehicle carrying the trap party reached Pallipalayam. As instructed PW2 and P.W.4 went to the office of the accused. When they reached the office of the accused, they found that the accused present over there. The accused having demanded the money for issuing necessary extracts received the said money from P.W.2 in the presence of P.W.4, P.W.2 came out of the office of the accused and as preplaned he gave signal by waiving his towel to the Police party which stood parked a little distance away. The Police party entered into the office of the accused and directed the accused to hand over the sum of Rs. 1000/= he received from P.W.2. The accused was found nervous and panicky. Sodium Carbonate Solution was prepared in two tumblers and the accused who handed over the sum of Rs. 1000/= received from P.W.2 was directed to dip his right hand fingers in one tumbler and left hand fingers in another tumbler. Both solutions turned pinkish turbid liquid. The solutions were poured in two different bottles. The solution where right hand of the accused was dipped was labeled as S2 (MO.5) and the solution where left hand of the accused was dipped was labelled as S3 (MO.5). P.W.7 recovered those two bottles under relevant mahazar (Ex.P.7) in the presence of the aforesaid witnesses and drew rough sketch Ex.P.8 with respect to the office of the accused.
(f) P.W.7 thereafter seized relevant records for the purpose of investigation, proceeded to the house of the accused, prepared House Search List (Ex.P.9) and having found no incriminating evidence prepared the list (Ex.P.10) of the articles found in the house of the accused in the presence of the above said witnesses. The accused was taken to the V & AC office at about 5.15 pm., On the same day he was released on bail at 7.15 pm., P.W.8, The Inspector of Police who took up further investigation examined the witnesses and recorded their statements, sent the M.Os to the Court and submitted a requisition to send the MOs to chemical analysis. The chemical analysis report was also received (Ex.P.14). P.W.8 after obtaining sanction to prosecute the accused, on completion of the investigation filed a charge sheet against the accused as stated earlier under the Prevention of Corruption Act.
(g) Before the Metropolitan Magistrate, on behalf of the prosecution, P.Ws 1 to 8 were examined and Exs.P.1 to P.14 were marked. On behalf of the accused Ex.D.1, namely, the application for the purchase of the NSC was marked and no witness was examined. When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses as against him, he denied the allegation of receiving illegal gratification and stated that a target was fixed as Rs. 20 lakhs for collection as Small Savings Scheme for each Revenue Village, for which he has already collected Rs. 48,000/= and P.w.2 was willing to deposit Rs. 1,000/= for which he has signed in a Form Ex.D.1 and only for the Small Savings Scheme, he has received the money and not by way of illegal gratification.
(h) On a consideration of the oral and documentary evidence, the learned Additional District Judge -cum- Chief Judicial Magistrate, Salem came to the conclusion that the offences alleged against the accused are proved and convicted him under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I for one year and to pay a fine of Rs. 1000/= under each section in default to undergo R.I for three months. Aggrieved over the said conviction and sentence, this Criminal Appeal has been filed by the appellant/accused.
4. Mr. V. Karthick, learned Counsel appearing for the appellant would contend that there is no charge for the alleged demand of Rs. 1,000/= as illegal gratification. The receipt of Rs. 1,000/= is admitted by the accused on the ground that the same was received as a contribution to Small Savings Scheme for which a target was fixed by the higher officials and P.w.2, has even signed Ex.D.1, which is the prescribed form for depositing the sum of Rs. 1,000/= in the Small Savings Scheme and the evidence of P.W.2 in his cross examination would clearly show that the case was foisted on this accused by P.W.2's uncle by name Muthusamy who bore a grudge against this accused because of his evidence in the Civil case as a result of which the said Muthusamy has lost the case.
5. As regards the evidence of P.W.2 during cross examination, he has admitted that there was a civil dispute with regard to his uncle Muthusamy in which P.W.2 and his uncle met the accused and asked him to delay the sending of records to the court, but the accused produced the records in court in time and therefore his uncle lost the case and he has further deposed that for Small Savings Scheme Rs. 20 lakhs was fixed as target, unless persons like him contributes, he cannot reach the target and on 5.10.1990, when he got Solvency Certificate, the accused demanded no money and he demanded Rs. 1,000/= only for the purpose of depositing the same in Small Savings Scheme and at the instance of his uncle he lodged Ex.P.2 complaint and he concealed the fact that the amount was paid by him for the purpose of depositing in the Small Savings Scheme and he even accepted his signature found in Ex.D.1, Application form issued for depositing in the Small Savings Scheme. He also stated that his uncle Muthusamy wanted to wreak vengeance against the appellant, he helped his uncle Muthusamy to foist this case.
6. After cross examination, P.W.2 was treated as hostile witness by the prosecution. The most important aspect in this case is that for the demand of Rs. 1,000/= there is no charge. In fact on 5.10.1990 when P.W.2 received Ex.P.3 solvency certificate, the accused has not demanded any money. The allegation is that on 9.10.1990 when P.W.2 went to receive the chitta adangal extract, the accused demanded money as illegal gratification. But no charge is framed for such a demand. Before proving the receipt of money as illegal gratification, demand has to be proved. Once demand is proved, then we can presume that the money accepted is for the purpose of illegal gratification. This is a case in which there is no charge for demand. Further, the accused admitted that the receipt of Rs. 1,000/= was for a different purpose i.e., for the purpose of collection of Small Savings Scheme.
7. P.W.6, Tahsildar during cross examination has admitted that the target has been fixed for every VAO for collection towards Small Savings Scheme and the target is fixed by Revenue Development Officer for every week for the VAOs to collect as small savings and he also admits that Ex.D.1 is the form for depositing Small Savings. P.W.7, the officer who planned and executed the trap during cross examination would admit that he did not examine the accused when he seized money from him. It is the duty of the Officer who execute the trap to give an opportunity to the accused to explain for receipt of money when the same is seized from the accused. But, P.W.7, would admit that he did not examine the accused when the money was seized from him. He also admit that he did not seize the file sent by Tahsildar regarding the Small Savings collections. Had he examined the accused at the time of seizure of money and arrest, the accused would have an opportunity to explain that the money received by him is only for the purpose of small savings and not as illegal gratification.
8. Ex.D.1, which is the application form for deposit of amount in the Small Savings Scheme also probablise the case of the accused that Rs. 1,000/= was received only for the purpose of purchasing the National Savings Certificate, which is under the Small Savings Scheme. It is well settled law that in case of admission of receipt of money by the Government Servants where allegation of corruption is pleaded, when there is an explanation offered by the Government Servant, as to why the money was received by him, various Courts have held that if the explanation is probable and reasonable then the accused has to be acquitted.
9. In Sundara Krishnan v. State etc. reported in 1998-2- L.W.(Crl) 718, this Court held as follows:
18. Like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge the aid innocence is paramountly on the prosecution. However strong the suspicion against the accused if every reasonable possibility of innocence has not been excluded, he is entitled to acquittal. Whenever circumstances arise, they must be proved and not by themselves presumed."... "If therefore the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the charge cannot be said to have been established.
26. ...In a case of corruption, especially in a trap case, when the accused on admitting the acceptance of the tainted money, attributes different reasons for having obtained the same from the complaint, it becomes the duty of the accused to discharge the burden by establishing with valid evidence, the reason that is attributed by him for the acceptance of the tainted money. But while discussing as to what should be the standard of proof that could be expected from the accused under such circumstances wherein the accused takes up a plea admitting the acceptance of the tainted money, but comes forward to attribute other reasons for the acceptance of the same.... "it would be unreasonable on the part of the Courts to expect the accused to prove his version with the such standard i.e., required for the proof of a civil case i.e., preponderance of probabilities but in such a situation if the accused is able to offer proper explanation to the satisfaction of the court in a convincing manner, that is sufficient for the courts to hold that the accused has cast off his burden of proof pertaining to the stand taken by him."..."The Apex Court has held that even in such event wherein the accused fails to discharge that part of the burden cast on him, still, since the accused is presumed innocent at the outset, the initial burden cast on the prosecution regarding the proof of the entire case against the accused with proof beyond reasonable doubts persists and unless the prosecution is able to prove with such standard of proof beyond all reasonable doubts, the accused would still become entitled to be acquitted.
10. In State of Tamil Nadu v. S. Krishnamurthy reported in 2002 (4) Crimes 295 (SC) the Hon'ble Supreme Court has held as follows:
4. ...It also noticed the fact that granting of patta certificate was not the sole responsibility of the respondent and it was a cumulative act of various officials of the taluk Office. Therefore, the High Court also came to the conclusion that a demand for an individual bribe in the acts and circumstances of the case cannot be accepted.
5. ...The prevalence of the practice in the office in question of collecting the flag day fund and the teacher's day fund seems to have been an authorised practice, though we do not approve of such practice. While considering a criminal appeal, if the existence of such practice is established and the defence taken by the accused is in conformity, with such practice, we are in agreement with the High Court that the mere fact that the respondent received a sum of Rs. 300/= would not ipso facto lead to the conclusion that the money in question was received by him as a bribe of showing an official favour.
11. In Duraisami v. State of Tamil Nadu reported in 2005 SCC (Cri) 1508, the Hon'ble Supreme Court held as follows:
1. ...The appellant admitted the receipt of Rs. 500/= from PW1 but he contended that he had sold Indira Vikas Patras to PW1 on 1.12.1987 and for which he had not paid the money and the amount which was paid on 16.3.1988 was the value of those Indira Vikas Patras"....
3. The learned Single Judge reversed the acquittal passed by the Special Judge, firstly for the reasons that the appellant did not give a statement at the time of his arrest that the money he had received was towards the value of two Indira Vikas Patras sold by him to PW1 and secondly, PW 2 who was allegedly present at the time of sale of Indira Vikas Patras did not depose that the appellant had been selling these Indira Vikas Patras on credit"...."We do not think that the learned Single Judge was justified in rejecting the evidence of DW.2 Once Exhibit P.16 was found to be a true and genuine document, the case set up by the defence has to be accepted and in that view o the matter we do not think that the learned Single Judge was justified in reversing the acquittal passed by the Special Judge.
12. In T. Subramanian v. State of Tamil Nadu reported in 2006 (1) SCC (Cri) 401, the Apex Court held thus:
12. Mere receipt of Rs. 200/= by the appellant from P.W.1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or 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 reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted as rightly done by the Special Court."...
15. ...The above evidence no doubt proves that a sum of Rs. 200 was paid by PW 1 to the appellant. But the crucial question is whether the appellant had demanded the same amount as illegal gratification to show any official favour to PW1 and whether the said amount was paid by PW 1 and received by the appellant as consideration for showing such official favour....
13. In Union of India v. Purnandu Biswas reported in 2006 (1) SCC (Cri) 520, the Apex Court held as follows:
15. Mr. Balakrishnan would urge that admittedly no demand was made from PW.2 It is also accepted that PW3 bore a grudge against the respondent and as such here was every possibility of foisting a false case against him....
14. In Punjabrao v. State of Maharashtra reported in 2004 SCC (Cri) 1130, the Hon'ble Supreme Court held as follows:
3. ...It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, as indicated by the learned Special Judge while acquitting the accused.
15. In this case also there is an explanation offered by the accused which is more probable than the allegations brought out in the evidence of the prosecution. Like every other criminal case, a case of bribery is subject to the rule that the accused is presumed innocent and that the burden to discharge the aid innocence is paramountly on the prosecution. However strong the suspicion against the accused if every reasonable possibility of innocence has not been excluded, he is entitled to acquittal. Whenever circumstances arise, they must be proved and not by themselves presumed. If therefore the evidence regarding the demand and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the charge cannot be said to have been established. Since the accused has discharged his burden by proving that the sum of Rs. 1,000/= was collected only for the purpose of Small Savings, the conviction of the accused for offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is not sustainable and therefore this appeal is allowed. The conviction and sentence are set aside. The bail bond executed by the accused shall stand cancelled. Fine if paid would be returned to the appellant.